Getting resident status in the United States can be tricky when the applicant, also known as the beneficiary, has prior deportations or entered unlawfully into the United States. However, this fact alone does not prevent a person from acquiring legal status in the United State. It only means that the process may require more work than other applications. To deal with prior deportation or with an unlawful entry, an applicant is required to apply for a waiver. This means that the applicant must ask the immigration authorities to waive a legal requirement and grant a “pardon.”. In this note, we will discuss the three kinds of waivers that apply to prior deportations or unlawful presence in the US.
I-212 Waiver: Application for Permission to Reapply for Admission into the United States After Deportation or Removal
The I-212 Waiver was designed to address the situation of individuals who are inadmissible to get a green card (resident status) under the Immigration and Nationality Act (INA) section 212(a)(9)(A) or (C) and are seeking permission to reapply for admission into the United States.
Where will the applicant complete her process to get a green card?
If a person has a prior deportation, this person cannot adjust her status in the United States. This means that the person must go overseas for an interview at a consular post and, after that step is successfully completed, come back to the US to receive the green card.
Who should apply for an I-212 Waiver?
– Individuals who were removed from the United States after a final order of deportation.
– Individuals who were granted a request for voluntary departure.
– Individuals who have been convicted of an aggravated felony.
Exceptions exist for aliens who entered the United States prior to April 1, 1997. Such aliens are protected by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) which stipulates that aliens who re-entered the United States prior to April 1, 1997 following their removal are not subject to the permanent bar. Additionally, aliens who have accrued unlawful presence prior to April 1, 1997 are immune from the permanent bar.
Two examples to illustrate this:
Paul was previously deported from the U.S. and then entered or attempted to enter the U.S. illegally. Then, Paul marries Claire, a U.S. citizen, during his stay. Claire comes to the G.A.M. LAW OFFICE to inquire about the immigration process for Paul, her non-citizen spouse.
In this case, Paula has committed multiple immigration violations, specifically:
Since Paul re-entered the United States illegally following his removal, Paul is now subject to a sanction usually known as the “permanent bar”, which requires Paul to wait at least 10 years from the date of his departure or removal from the United States to be eligible to apply for the I-212 waiver. If Paul had filed an I-212 waiver before entering the United States following their deportation or removal, the 10-year rule would not apply, but Paul would still need to depart the United States to obtain an immigrant visa through a US consulate abroad.
Mary has been unlawfully present in the U.S. for more than 1 year, then departs the U.S. for frivolous or personal reasons, and enters or attempts to enter the U.S. illegally. Then, Mary marries Winston, a U.S. citizen, and tries to lawfully immigrate to the U.S.
Similar to the prior example, unless Mary re-entered or accrued the unlawful presence before April 1, 1997, in which case Mary would not be subject to the “permanent bar” according to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), she needs to file an I-212 Waiver to acquired lawful status.
How to win the I-212 Waiver…
To obtain authorization to reapply for admission o the US (to win the waiver petition), an applicant must demonstrate that he/she has remained outside the United States for a continuous period of time, depending on the reason for your removal:
– 5 years from the date of departure or removal, if the alien was removed only once;
– 10 years from the date of departure or removal, if the alien was removed only once;
– 20 years from the date of departure or removal in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony;
The applicant is also required to demonstrate to USCIS that there are enough elements that grant a favorable exercise of discretion. Considering that this is a legal concept, it is better to have the representation of legal counsel.
The I-601 Waiver of Inadmissibility
The I-601 waiver is an option for those individuals who are in the process of acquiring lawful status through a consular petition, i.e., from outside the US. The I-601 is available only to those individuals who are spouses, fiancés, or parents of U.S. citizens or legal residents.
I-601 Applicant must have a qualifying relative
A qualifying relative is someone who files the immigrant petition and who would suffer extreme hardship if the immigrant was not allowed to enter as a permanent resident.
– A U.S. citizen or legal resident spouse or parent if the immigrant is denied for unlawful presence or misrepresentation.
– A U.S. citizen or legal resident who is a spouse, parent, or child of the alien who is denied admissibility based on criminal history.
– A U.S. citizen fiancée
How can I demonstrate Hardship and get the I-601 approved?
An I-601 applicant is required to demonstrate that her/his qualifying relative would suffer extreme hardship should the applicant’s petition be denied. To succeed, it is crucial to provide enough evidence of the said hardship. For this reason, an applicant and a qualifying relative should work with an immigration attorney to provide as much evidence as possible. Factors that may constitute an extreme hardship include:
– The qualifying relative would be forced to leave the U.S. to be with the applicant.
– The qualifying relative needs medical treatment on a continual basis (e.g., for a brain tumor or multiple sclerosis)
– The applicant’s country is embroiled in a civil war or constant political upheavals
– The applicant is the primary caretaker for an elderly, disabled, or seriously and chronically ill qualifying relative
– The applicant or the qualifying relative’s education would be significantly interrupted or terminated
– The applicant would lose or be denied significant employment opportunities if denied
– The applicant is the primary caregiver of the qualifying relative’s children from a prior relationship, who have an emotional attachment to the applicant.
– What factors can make a person ineligible to apply for an I-601?
There are some circumstances under which you may not file for an I-601 waiver, though other options for entry may be possible. These include:
– You were in the U.S. unlawfully for more than one year, departed, and then reentered without inspection
– You previously made a false claim that you were a U.S. citizen, unless you can show that the claim was not intentionally made without a reasonable basis, or that you had a reasonable basis for your claim
– You were or appear to be a member of a criminal gang (such as having gang tattoos)
– You have a drug conviction after the age of 18 unless it was for possession of fewer than 30 grams of marijuana
– You failed to attend a removal hearing and have been in the U.S. for at least five years
– Immigration officials determined you were in a sham marriage
– You filed a frivolous asylum claim
It is important to note that if you were previously in the U.S. unlawfully and have been outside the country for ten years, you can reapply for entry without the need for a qualifying relative.
The I-601A Waiver
The I-601A waiver, specifically called the “provisional waiver”, allows certain immigrants, if successful, to acquire lawful status of permanent resident, despite being subject to unlawful presence. The difference between the I-601A Waiver and the I-601 is that the I-601 waiver is used when the applicant is outside the US. However, for both waiver petitions, the applicant must have at least one qualifying relative.
The I-601 waiver allows a green card applicant to obtain a provisional waiver before the applicant leaves the U.S. for their consular interview abroad. The reason behind the I-601A waiver process is to promote the reunification of family members, as well as to shorten the time that families must be separated while their relatives are obtaining immigrant visas to become lawful permanent residents of the United States.
Who can Apply for an I-601A Waiver?
In order to qualify for an I-601A waiver, an applicant must meet at least the following requirements:
– The applicant must be at least 17 years old
– The applicant must be physically present in the U.S. to file the form I-601A application and provide biometrics
– The applicant must be in the process of obtaining their immigrant visa, and have a case pending before the NVC
– The applicant must not have a pending I-485 Petition
– The applicant must not have any additional grounds for inadmissibility
– The applicant must be able to demonstrate that refusal of their admission will cause extreme hardship to their U.S. citizen or permanent resident relative
– The applicant must not be in removal proceedings that are pending or haven’t been administratively closed
The applicant must not have a final order of removal, exclusion, or deportation