The immigration process in the United States is complex and requires several steps. The
federal government may refuse entry to anyone who falls within the lists of grounds of inadmissibility.
Those lists include inadmissibility due to health, criminal reasons, national security reasons, likelihood
of becoming a public charge, lack of labor certification, fraud or misrepresentation, prior removals
and/or unlawful presence. This list is not exhaustive, and there are many other reasons the U.S.
Federal Government can deny an adjustment of status.
If you or someone you know falls within one of the inadmissibility categories, the immigration
process can become even more complicated. One can request a waiver of their inadmissibility in an
effort to overcome that hurdle. In order to adjust the status of an individual in such circumstances
one can file either a I-601 Hardship Waiver, Application for Waiver on Grounds of Inadmissibility,
or a I-601A Provisional Waiver, Application for Provisional Unlawful Presence Waiver. This is not
always a guarantee because there are some categories of inadmissibility that are considered so serious
that the federal government refuses to overlook them. Both waivers can help in one’s efforts to obtain
a green card. While the two are similar, there are a few notable differences.
I-601 Hardship Waiver forms are for those individuals who are outside of the United States,
while the I-601A Provisional Waiver forms are for those who are inside the U.S. It is important to
stress that I-601A waivers only waive ONE ground of inadmissibility, that being unlawful presence. Prior
to the creation of this waiver, if an individual had been unlawfully present in the U.S. for more than 6
months but for less than a year, or had they been unlawfully in the U.S. for more than a year and then
left the country for any reason, that individual would trigger a no-entry period which would prohibit
that person from returning to the U.S. for a period of either 3 or 10 years. See 8 U.S.C. §1182; See also
INA § 212(a)(9)(B)(i)(I)-(II). This was particularly devastating for families, as it could separate them
for prolonged periods of time. The addition of the Provisional Waiver (I-601A) relaxes this standard
a bit and allows for people to apply for a waiver while they are still in the U.S. When filing for such a
waiver, an individual must prove that the time and distance away from their U.S. citizen spouse,
children or parents would create an extreme hardship. If the waiver is approved, that person can then
leave the U.S. without worrying about family separation. While filing under I-601A diminishes the
likelihood that the individual will be separated from their families for a period of either 3 or ten years,
the U.S. Citizenship and Immigration Services (“USCIS”) agency can, and often does, require that the
individual leave the U.S. to interview abroad with a consular officer as another step in their
immigration process.
To obtain an I-601 Hardship Waiver an applicant must complete the form while residing outside
of the U.S., and the USCIS then reevaluates the circumstances surrounding that which made the
individual inadmissible. The USCIS weighs those circumstances against the hardship created for the
applicant’s relatives (spouse, child(ren) or other qualifying relative(s)) given the applicant’s absence in
the U.S. The hardship experienced by the familial member(s) must be extreme, though the term
“extreme hardship” is not defined in immigration law. That being said, the decisions makers who
review these I-601 applications have great discretion to approve or deny such waivers. One of the
most common errors an applicant makes is providing too little evidence to indicate that their qualifying
relative would experience an extreme hardship if the applicant were denied residence in the U.S.
Furthermore, certain aggravating factors can increase the likelihood that an I-601 waiver application
would be denied. Such factors include prior violations of immigration law, arrests, marriage fraud, or
pending/pre-existing criminal charges. One should proactively address any such aggravating factors in
their application, because if an evaluator uncovers the existence of them without prior disclosure the
chance of obtaining an I-601 waiver diminishes quickly. If your situation is one involving aggravating
factors, you as the applicant will be required to show a much higher level of extreme hardship
compared to other applicants.
Every individual’s situation is different. As mentioned, the United States immigration process
is inherently complex and involves several steps. This short piece only scratches the surface of one
component of that process. The waiver of inadmissibility is particularly complicated, and the burden
is on the applicant to demonstrate that they have satisfied all of the qualifications. For all of these
reasons our office recommends that anyone seeking to adjust their legal status discuss their options
and plans with a knowledgeable and experienced attorney who specializes in immigration law.
Our team at Castel & Hall LLP is always here to help. One of our offices is in the Trade center
drive in Woburn across from the Middlesex superior court in Woburn. We are also located at 932
Concord St, Framingham, MA. Call Castel & Hall LLP: 617-716-6464 to schedule a consultation.