- Grounds of Inadmissibility
- “Unwaivable” Grounds for Inadmissibility
- Basic Eligibility Requirements for I-601
- The I-601A Application for Provisional Unlawful Presence Waiver
- The Winning Edge: Proving “Extreme Hardship” in Your I-601 or I-601A Application
- Processing Times
To soften the harshness of these laws, the US allows certain people who would otherwise be inadmissible to petition the US government to waive certain grounds of inadmissibility so that they can freely enter the US, or leave the US without fear that they will be barred from returning. Filing Form I-601 and Form I-601A represent two alternative ways of seeking a waiver. Remember, however, that a waiver is always discretionary — it can be refused for any reason.
Grounds of Inadmissibility
The U.S. imposes numerous grounds for inadmissibility to the United States. Some of these grounds can be applied to anyone seeking entry to the US (except for US citizens and most US permanent residents). Other grounds apply only to certain classes of people seeking entry. Following is a brief description of the major categories of inadmissibility. It does not cover all possible grounds of inadmissibility, however.
You can be denied entry to the US on certain medical grounds:
- Certain diseases
- Failure to present evidence of vaccination against certain diseases.
- Certain mental illnesses that might render you a danger to people or property.
- Drug abuse or addiction, even if the drug is not itself illegal.
Criminal History or Intent
You will not necessarily be found inadmissible simply for having a criminal record. The types of offenses that might render you inadmissible include:
- Drug crimes;
- Multiple criminal convictions;
- Involvement in illegal commercialized vice;
- Human trafficking;
- Money laundering; or
- Crimes of “moral turpitude” (unspecified criminal behavior that is base, vile or depraved).
National Security Reasons
You can be denied entry if you are considered a potential threat to national security due to, for example:
- Intent to engage in unlawful activity, especially espionage, sabotage, or attempts to overthrow the government;
- Any association with terrorism;
- Participation in Nazi persecutions or genocide; or membership in a totalitarian party
A “public charge” is someone who is dependent on government benefits for subsistence, and you can be ruled inadmissible if the US concludes that you are likely to become a public charge while living in the US. This ground for inadmissibility applies mainly to people seeking family-based immigration benefits.
Lack of Labor Certification
Labor certification is a conclusion by the Secretary of Labor that your employment in the US will not adversely affect US workers and that there is a shortage of qualified US workers for your position. It is a requirement for certain types of visas, and you can be ruled inadmissible for failing to obtain it.
You can be found inadmissible for fraud or misrepresentation of a “material” (significant) fact during the immigration process.
You can be found inadmissible due to prior deportations or unlawful presence (undocumented immigrant status, for example). If you overstayed your previous US visa for more than six months, for example, and then left the US, you could be barred from returning under the 3/10 year bar. Under the 3/10 year bar:
- You cannot enter or reenter the US for 3 years, if you accumulated six to 12 months of unlawful presence in the US;
- You cannot enter or reenter the US for 10 years, if you accumulated more than one year of unlawful presence in the US.
Some grounds for inadmissibility cannot be easily classified. These include grounds such as polygamy and renouncing your US citizenship for tax reasons. For a more comprehensive listing of the grounds of inadmissibility see our article Grounds of Inadmissibility.
“Unwaivable” Grounds for Inadmissibility
In some cases, unfortunately, it is impossible to obtain a waiver of inadmissibility. Following is an incomplete list of the many grounds for which inadmissibility may not be waived:
- Failing to appear for a removal (deportation) hearing;
- Falsely claiming to hold US citizenship;
- Seeking readmission within 10 years of deportation or within 20 years of a second deportation;
- Conviction of an aggravated felony;
- Submitting a frivolous asylum application;
- Renunciation of US citizenship to avoid taxation.
Basic Eligibility Requirements for I-601
To be eligible to file Form I-601:
- You must be applying for immigration benefits under a category that is eligible for a Form I-601 waiver. These categories include immigration visas; Adjustment of Status petitions (I-485); K-1, K-2, K-3 and K-4 visas; V visas; Temporary Protected Status, Nicaraguan Adjustment and Central American Relief Act, Haitian Refugee Immigrant Fairness Act or Violence Against Women Act (self-petitioner) beneficiaries; and certain T nonimmigrant visa holders filing Form I-485.
- Your ground for inadmissibility must be waivable (see above). Not all grounds for inadmissibility are waivable, and some are waivable only for certain types of visa applicants.
- You must have a “qualifying relative.” A qualifying relative could be a U.S. citizen or lawful permanent resident spouse, parent, son, daughter or even a US citizen fiancé(e), depending on the specific grounds of admissibility you are seeking to waive.
- You must show that denial of your waiver application will cause extreme hardship to your qualifying relative.
Documentary Evidence to Support Your I-601 Application
To receive approval of Form I-601, you will need to prove your assertions with documentary evidence. Some of the types of evidence that are commonly used include:
- Notarized affidavits from the applicant and other people;
- Police reports from every country you have ever lived in, even if your criminal record is clean;
- Complete official records of any conviction or charge;
- Evidence of rehabilitation;
- Medical reports;
- Evidence of extreme hardship (see below); and
- Other evidence that may be required depending on the specific grounds for inadmissibility that you wish to waive.
The I-601A Application for Provisional Unlawful Presence Waiver
If you accumulate enough unlawful presence in the US to become subject to the 3-year bar (6 to 12 months) or the 10-year bar (over 12 months), your re-entry bar might not directly affect you until you leave the US. One you leave the US, however, you cannot re-enter the country until the bar either expires or is waived. Suppose however, that you wanted to adjust to legal immigration status in the US through sponsorship by a US citizen relative (a spouse, for example)?
Before the I-601A became available, you would have had to leave the US (and thereby trigger the 3-year or 10-year bar), file Form I-601 from overseas, and then wait and hope for the approval of your I-601 application. This could result in painful family separation and extreme hardship on both you and your qualifying relative.
What the I-601A Waiver Does
The I-601A allows you to apply for and receive a waiver after receiving USCIS approval but before you leave the US. In this way you can apply for an immigrant visa at a US embassy or consulate overseas, without fear that you will be subjected to a re-entry bar when you try to return. The I-601A application is only for people seeking waiver of the 3- or 10-year bar, not for people seeking waiver of other grounds of inadmissibility such as criminal conduct.
I-601A Eligibility Requirements
The following eligibility requirements apply for a Form I-601A application:
- You must be present in the United States at the time the application is filed;
- You must be the beneficiary of a pending and qualifying immigrant visa application (I-130 Petition for Alien Relative petition, I-140 Immigrant Petition for Alien Workers or Diversity Visa petition, for example);
- You have a U.S. citizen or permanent resident spouse or parent (your “qualifying relative”);
- You must show that your qualifying relative would suffer extreme hardship if you are not granted a waiver of inadmissibility;
- You must not be inadmissible for any reason other than the 3-year bar or the 10-year bar;
- You must not be in deportation proceedings;
- You must have never been ordered deported (regardless of whether you have ever actually been deported), and if you have ever accepted voluntary departure, you must not have failed to depart the US on time;
- You must not have an adjustment of status application pending; and
- You must not be currently scheduled for an immigrant visa interview at a US embassy or consulate abroad.
Documentary Evidence for I-601A
You will need documentary evidence to support your I-601A application. Examples of such documentation include:
- USCIS Form I-797 approval notice for your visa petition.
- Proof of the U.S. citizenship or permanent residence status of your qualifying relative (if that relative did not submit a Form I-130 visa petition for you) — a birth certificate, passport, green card or naturalization certificate, for example.
- Proof of your relationship to your qualifying relative, if that relative did not submit a Form I-130 visa petition for you — a copy of a marriage certificate or birth certificate, for example.
- Proof that your qualifying relative will suffer extreme hardship if your application is not approved (see below).
The Winning Edge: Proving “Extreme Hardship” in Your I-601 or I-601A Application
Your application must include a statement explaining why your qualifying relative will suffer extreme hardship if it is denied. Of course, a certain amount of hardship is to be expected under these circumstances. To prove that the hardship would be “extreme”, you will have to show that the hardship would amount to more than what someone would normally experience under these circumstances.
This document must be persuasively written, and it must be carefully structured to meet the appropriate legal standard. It is the most important part of your application. A common mistake here is to present evidence of hardship to you rather than to your qualifying relative. Hardship to you is considered only to the extent that it affects the degree of hardship that would be suffered by your qualifying relative. Below is a list of the types of hardships that you might mention:
- Community and family ties: Does your qualifying relative have close relatives in the US? Will denial of a waiver result in the separation of your qualifying relative from spouse or children? Your qualifying relative’s community ties and length of residence in the US is important here
- Educational opportunities: Will denying a waiver cause your qualifying relative to lose educational opportunities (including internships and training programs)? Will your qualifying relative’s education be interrupted? Will a move overseas force your qualifying relative to be educated in a foreign language?
- Finances: Will denying a waiver will result in the sale of your qualifying relative’s home or business, or a substantial decline in his or her standard of living (especially if your qualifying relative is your spouse and you are the family breadwinner). Will it result in a loss of income needed to care for your ill or elderly parents?
- Health: This consideration is especially important if your qualifying relative needs specialized or ongoing treatment that is not available in your home country, or if medical treatment in general is inferior in your home country.
- Do you or your qualifying relative have a well-grounded fear of persecution, harm or social or financial discrimination if you alone, or if you and your qualifying relative, return to your home country? This is definitely worth mentioning, even if the degree or likelihood of harm wouldn’t be enough to support an asylum claim.
- Any other circumstances that may cause your qualifying relative to suffer extreme hardship if your application is denied.
Your statement should be supported by as much relevant evidence as possible. This might include personal affidavits, medical records, financial records, educational transcripts, documentary evidence of conditions in your home country, etc. You will also need to submit evidence of your relationship with your qualifying relative — a marriage certificate or birth certificate, for example.
If you file from within the US, the process generally takes four to six months, although processing times vary significantly and are subject to change at any time. If you file from overseas, you can expect to wait six months to a year. If your case is particularly complex or if it depends on assertions that are difficult to verify, the process could take longer than this.