The I-601 Application for Waiver of Grounds of Inadmissibility is used by those applying for adjustment of status, an immigrant visa, or certain non-immigrant visa applicants that are "inadmissible." If they are able to meet the requirements of this application, they can overcome the reason for inadmissibility that is preventing them from obtaining a Green Card.
The Form I-601a, Application for a Provisional Waiver of Unlawful Presences is a separate waiver request created under the President Obama Administration. It is a waiver of only the "Unlawful Presence" Bars for those that stayed in the U.S. for an unlawful period of 3 or 10 years.
Before the I-601a Provisional Waiver, the Immigrant may have had to go to their Embassy Interview and submit the waiver application after they were denied about this issue.
However, the regulations for the Provisional Waiver permit an Applicant to file it and wait for a decision while still in the U.S. Instead of being forced to exit the U.S., attend a Consular Interview first. This saves the Immigrant a lot of time, and allows them to have some additional level of certainty that the Consular Interview will go well.
The following classes of Immigrants and Non-Immigrants potentially have an I-601 waiver available to them if they are considered "inadmissible":
1. A person requesting an Immigrant Visa or Green Card through Adjustment of Status;
2. A K or V Non-Immigrant Visa Applicant found inadmissible after their Consular Interview;
3. A person who is a Temporary Protected Status (TPS) Applicant;
4. A person who is a Nicaraguan Adjustment and Central American Act Applicant (NACARA);
5. A Violence Against Woman Act (VAWA) Self-Petitioner or the Child of a VAWA Self-Petitioner;
6. A person who is a T Non-Immigrant Visa Applicant;
7. A Haitian Refugee Immigration Fairness Act (HRIFA) Applicant;
8. A person that is a Special Immigrant Juvenile (SIJ) Applicant.
How Does the I-601 Waiver Works for K-Visa?
After the K-Visa Applicant, such as a K-1 Immigrant Fiancé, has their case denied after the Consular Interview, they can submit an Application for an I-601 waiver based on their relationship to a qualifying United States. The Immigrant can then enter the U.S. if the Application is approved. However, the existence of this waiver is conditioned upon the the marriage of the K-1 Fiancé with the U.S. Citizen Fiancé that Petitioned for them. However, this waiver is conditional upon marriage with that particular fiancé.
1. Health-related grounds of inadmissibility (INA section 212(a)(1));
2. Certain criminal grounds of inadmissibility (INA section 212(a)(2));
3. Immigration fraud and misrepresentation (INA section 212(a)(6)(c));
4. Immigrant membership in totalitarian party (INA section 212(a)(3));
5. Alien smuggler (INA section 212(a)(6)(E));
6. Being subject to civil penalty (INA section 212(a)(6)(F));
7. The 3-year or 10-year bar due to previous unlawful presence in the United States (INA section 212(a)(9)(B).
The I-601 Waiver is remains valid indefinitely and does not expire. This is true even if the applicant does not obtain an immigrant visa, or immigrant admission or adjustment of status, or if they lose their legal permanent resident status. However, the waiver only applies to the grounds and facts listed in the application. As such it is important to disclose all inadmissible issues to prevent issues later.
However the following waivers are either conditional or limited to certain benefits:
1. Convention Adoptee that obtains the waiver in connection with form I-800, petition to classify convention adoptee as immediate relative, the approval of the waiver is dependent upon the final issuance of an immigrant or non-immigrant visa based on the final approval of form I-800.
2. K Non-Immigrant Visa Applicant waiver (K-1 or K-2) is conditioned upon the marriage of the K-1 visa applicant and the K-1 visa petitioner after the K-1 non-immigrant visa applicant is admitted into the United States.
3. Conditional Resident waiver validity automatically ceases with the termination of the such residence. No separate notification of termination of the waiver is needed, and the applicant cannot appeal the termination of the waiver. However, an immigrant judge can determine that the applicant is not removable, making the waiver effective again.
4. TPS applicants' waiver is only valid for the TPS application. If granted, the waiver will apply to subsequent TPS re-registration applications, but to any other immigration benefit requests.
The "Qualifying Relative" is the relationship to a specific U.S. relative that some waivers are based upon. The relationship with this relative must be in existence at the time of applying for a waiver. Depending on the waiver category that is being requested, the qualifying relative can be the applicant's U.S. Citizen or Lawful Permanent Resident parents, spouse/fiancé or children. For the specific qualifying relative available, the Applicant's Visa Class and Category of Inadmissibility must be analyzed.
Some waivers may require a Biometrics Appointment. The applicant would be notified if they need to appear at a USCIS ASC Appointment in the U.S., or at a a designated location overseas.
Each waiver category and case requires its own specific evidence that responds to the specific issues of inadmissibility. In all cases you must show that the approval of the application is warranted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in the case.
Depending on the type of waiver being sought, this information and evidence may include, but is not limited to:
1. Affidavits from the applicant and other individuals;
2. Police reports from any country the applicant has lived in;
3. Complete court records about any conviction or charge from any country;
4. If applicable, evidence of rehabilitation;
5. Any evidence the applicant wishes to submit to establish that your admission to the United States would not be against the national welfare, public safety, or national security;
6. Medical reports;
7. If applying for a waiver for a category of inadmissibility that requires showing extreme hardship to a qualifying relative, evidence of the establishing the family relationship and evidence that shows the denial of admission would result in extreme hardship to the qualifying relative, or to the applicant if a VAWA self-petitioner.
8. If a VAWA self-petitioner, evidence that establishes a connection between the battery or extreme cruelty that is the basis for the VAWA claim and the applicants removal or departure from the United States, reentries or attempted reentry into the United States, and unlawful return or attempted unlawful return.
9. If adjusting status based on T Non-Immigrant status, evidence that demonstrates it would be in the national interest to waive the inadmissibility grounds. If applying under 212(a), also demonstrate that the activities rendering inadmissibility were caused by or were related to the applicant's victimization; or
10. If a TPS applicant, evidence demonstrating that the granting of the waiver would serve humanitarian purposes, family unity, or be in the public interest.
Factors include, but are not limited to:
B. Financial Considerations.
D. Personal Considerations.
E. Special Factors
Evidence of Extreme Hardship may include, but is not limited to:
a. Affidavits from the qualifying relative or other individuals with personal knowledge of the claimed hardships;
b. Expert opinions;
c. Evidence of employment or business ties, such as payroll records or tax statements;
d. Evidence of monthly expenditures such as a mortgage, rental agreement, bills and invoices;
e. Other financial records supporting any claimed financial hardships;
f. Medical documentation and/or evaluation by medical professionals supporting any claimed medical hardships;
g. Records of membership in community organizations, volunteer confirmation, and evidence of cultural affiliations;
h. Birth, marriage, or adoption certificates supporting any claimed family ties;
i. Country-Condition reports; and
j. Any other evidence believed support the claimed hardships.
1. If the applicant is residing outside of the United States, the normally file the waiver application after the consular officer has found the applicant to be inadmissible. The waiver, along with the consulate's denial letter is submitted to the designated USCIS Phoenix Lockbox. For the most up-to-date address, visit: https://www.uscis.gov/i-601-addresses. Some cases can be filed with USCIS Field Office Abroad.
2. If filing while the applicant is in the United States (as part of an I-485 adjustment of status application), the waiver can be submitted with the Form I-485, or after filing and receiving the I-485 receipt. For mailing addresses, visit: https://www.uscis.gov/i-601-addresses.
3. If applying based on a VAWA self-petition it, the application is submitted to the Vermont Service Center (see: https://www.uscis.gov/i-601-addresses).
4 TP.S applicants must file the I-601 waiver along with the I-821 Application for TPS. The mailing addresses depends on the country that the TPS is being based on (see: https://www.uscis.gov/humanitarian/temporary-protected-status#When%20and%20Where%20to%20File).
5. If the applicant is in removal proceedings they should file the form I-601 waiver with the Executive Office for Immigration Review (EOIR) according to the instructions provided in court. For information about EOIR, visit EOIR’s Web site at www.usdoj.gov/eoir.
Individuals who have been deported or removed from the United States, or who departed the United States after the expiration of a voluntary departure order, and who seek readmission, will need to file Form I-212, Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal.
The government filing fee for the waiver application increased on Dec. 23, 2016 to $930.00. For the most up-to-date filing fees, visit: https://www.uscis.gov/i-601.
Attorney fees can vary from a few thousand dollars to more than $10,000.00 for very complex cases.
The burden of proof in these cases is on the applicant, based on a "preponderance of the evidence" standard.
Processing times vary, but are usually between 2 - 6 months.
The decision to hire an attorney is always up to the applicant. In general, waivers are one of the most complicated immigration applications that require a lot of documentation and attention. It is normally recommended that a lawyer be hired, but the decision must be made relative to the costs of such a decision and the consequences of a denial for the applicant and their family.