Monthly Archives: January 2016

What should you do to get an I-601 waiver for criminal grounds?

Section 212(a)(2) of the Immigration & Nationality Act (INA) permanently bars you from adjusting to permanent residence or being lawfully admitted to the U.S. (either as an immigrant or nonimmigrant) on criminal and related grounds. When you have a lifetime ban due to a Crime Involving Moral Turpitude (CIMT) or controlled substance violation, for example, you need an I-601 waiver, available under INA § 212(h).

What Must You  Submit When Requesting an I-601 [INA § 212(h)] Waiver?

A section 212(h) waiver applicant must submit a completed and signed Form I-601Application for Waiver of Grounds of Inadmissibility. The Form I-601 filing fee and sometimes a biometrics fee are required.

The Form I-601 instructions include a list of supporting documents you should submit with your waiver request. Examples are affidavits from yourself and third parties describing hardships and/or rehabilitation; expert opinions; medical documentation; and reports of conditions in your home country.

Evidence of extreme hardship 

If you qualify for the waiver on the basis that your U.S. citizen or permanent resident spouse, parent, son or daughter, or K visa petitioner, will suffer extreme hardship if you are denied admission to the U.S., you must present documentary evidence of the “extreme hardship.”

The agency considers a variety of factors when determining whether there is extreme hardship. They include:

  • Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term; need for applicant to assist with physical or mental conditions.
  • Financial Considerations: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (e.g. elderly and sick parents).
  • Education:  Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade or pay level; availability of special requirements, such as training programs or internships in specific fields.
  • Personal Considerations: Close relatives in the U.S.; separation from spouse or children; ages of involved parties; length of residence and community ties in the U.S.
  • Special Factors: Cultural and language barriers; religious and ethnic obstacles; social unrest or civil war in your country; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures for support, guidance and protection.

Evidence of rehabilitation| Evidence that your admission would not be against the national welfare, safety, or security of the United States

Evidence of your rehabilitation and evidence that your admission would not harm the national welfare, safety, or security of the U.S. are especially important when you are filing for the waiver on these grounds. Such evidence is also essential to showing the positive factors outweigh the negative factors in your case.

The agency considers several factors when determining whether there is rehabilitation. They include:

  • Passage of time since the last conviction
  • The court order regarding sentence imposed and whether the applicant is likely to commit another offense
  • The applicant’s participation in a rehabilitation program, such as alcohol or drug treatment program, if alcohol or drug use contributed to the crime
  • The applicant’s active involvement in community activities and volunteer work
  • A grant of expungement or pardon
  • A psychological evaluation confirming the crime resulted from a mental problem for which the applicant is being treated

Does Having an Immigration Attorney Make a Difference? 

Filling out the Form I-601 is just the first step. The harder part is convincing the agency that you are eligible for the waiver and deserve it as a matter of discretion.

Although “extreme hardship” is not defined by immigration law, it is more than just the normal emotional hardships or financial difficulties that result from family separation or relocation.  A good lawyer will help you prove your qualifying relatives would suffer extreme hardship if they are separated from you while you are abroad, or if they move overseas to be with you.

The presence of aggravating factors (e.g. conviction for a serious offense, recent convictions) and lack of mitigating factors (e.g. participation in a rehabilitation program) can lead to a denial of your waiver request. Needing another waiver, such as a section 212(i) waiver (for immigration fraud/willful misrepresentation) or a section 212(a)(9)(B)(v) waiver (for unlawful presence), further complicates your case. A good lawyer will help you prove the favorable factors outweigh the unfavorable factors in your case.

It’s much harder to get an I-601 waiver [INA § 212(h) waiver] when you file it on your own and don’t have the benefit of counsel. You have 30 days to file a motion to reopen/reconsider or an appeal if your waiver request is denied. Otherwise, you may re-file the application with new, material evidence. Federal courts lack jurisdiction to review an agency’s decision on an I-601 waiver.

A diligent, experienced immigration attorney will advise you on the documentary evidence to submit, prepare a legal brief explaining how you qualify for the waiver and why you deserve it, and put together a strong waiver application to maximize the chance of success.

For more information on when the crime-related bar applies, who qualifies for the I-601 [INA § 212(h)] Waiver, and the limitations of the waiver, read our related article, When do you need an I-601 Waiver due to criminal grounds (and how do you get it)?

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

Photo by: Tiago Pinheiro

When do you need an I-601 Waiver due to criminal grounds (and how do you get it)?

Certain criminal offenses bar you from adjusting to permanent resident status or from entering the U.S. as a permanent resident or an immigrant, K-3 nonimmigrant, or K-1 fiancé(e) visa holder.

To overcome crime-related bars to reentry, prospective immigrants or permanent residents seeking admission to the U.S. must file for and receive an I-601 waiver when available under section 212(h) of the Immigration & Nationality Act. If the I-601 waiver is granted, you may then adjust status, enter the U.S. on an immigrant, K-3 or K-1 visa, or be admitted as a permanent resident.

 

When Are You Inadmissible Due to Criminal and Related Grounds [INA§ 212(a)(2)]? 

Crime-related grounds of inadmissibility are permanent bars to adjusting to permanent residence within the U.S., obtaining a visa for entry to the U.S., or being lawfully admitted to the U.S.

Crime Involving Moral Turpitude

Section 212(a)(2)(A) (i)(I) of the Immigration & Nationality Act (INA) states foreign nationals are inadmissible to the U.S. if they have been convicted of – or admit to committing – one Crime Involving Moral Turpitude (CIMT), other than a purely political offense.

A CIMT involves engaging in morally reprehensible and intrinsically wrong conduct with willful, reckless, or malicious intent. Examples are crimes against a person (aggravated battery, aggravated assault with a deadly weapon, statutory rape); crimes against property (shoplifting, theft, fraud, forgery, robbery); sexual and family crimes (e.g. child abuse, aggravated domestic assault); and crimes against the government (e.g. bribery, counterfeiting, willful tax evasion).

You are not inadmissible due to a CIMT when you qualify for:

1. the petty offense exception, where you committed only one CIMT ever, the CIMT has a potential sentence of one year or less, and a sentence of six months or less was imposed ; OR

2. the youthful offender exception, where you committed only one CIMT while under age 18, and at least five years have passed since your conviction and release from jail.

Controlled Substance Violation

Section 212(a)(2)(A) (i)(II) of the INA states that foreign nationals are inadmissible if they violated (or conspired or attempted to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, as defined in section 802 of Title 21.

Multiple Criminal Convictions

Section 212(a)(2)(B) of the INA states that foreign nationals are inadmissible to if they are convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offense arose from a single scheme of misconduct, and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more.

Controlled Substance Traffickers

Section 212(a)(2)(C) of the INA bars foreign nationals who the U.S. consular officer or U.S government knows or has reason to believe is a controlled substance trafficker. This includes a person who:

1. is or has been an illicit trafficker in any controlled substance listed in section 802 of Title 21, or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled substance.

or

2. is the spouse, son, or daughter of a person inadmissible as an illicit trafficker, has obtained financial or other benefit from the illicit activity within the last 5 years, and knew or reasonably should have known that the financial or or other benefit resulted from such illicit activity.

Prostitution and Commercialized Vice

Section 212(a)(2)(D)(i) of the INA states that foreign nationals are inadmissible if they are coming to the U.S. solely, principally, or incidentally to engage in prostitution, or have engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status.

Section 212(a)(2)(D)(ii) of the INA adds that foreign nationals are inadmissible if they directly or indirectly procure or attempt to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receive or (within such 10-year period) received the proceeds of prostitution.

Section 212(a)(2)(D)(iii) of the INA further bars foreign nationals who are coming to the U.S. to engage in any other unlawful commercialized vice, whether or not related to prostitution.

Certain Aliens Involved in Serious Criminal Activity Who Have Asserted Immunity from Prosecution

Under section 212(a)(2)(E) of the INA, a foreign national:

(i) who has committed in the United States at any time a serious criminal offense (as defined in section 101(h) of the INA – i.e. any felony, any crime of violence, and any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or prohibited substances if such crime involves personal injury to another),

(ii) for whom immunity from criminal jurisdiction was exercised with respect to that offense,

(iii) who as a consequence of the offense and exercise of immunity has departed from the United States, and

(iv) who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense,

is inadmissible.

Foreign Government Officials Who Committed Particularly Severe Violations of Religious Freedom

Under section 212(a)(2)(G) of the INA, a person who, while serving as a foreign government official, was responsible for or carried out particularly severe violations of religious freedom is inadmissible.

Significant Traffickers in Persons

Under section 212(a)(2)(H) of the INA, a person who commits or conspires to commit human trafficking offenses in or outside the U.S., or who the U.S. government knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe human trafficking, is inadmissible.

A spouse, son or daughter of a human trafficker, who has, within the previous 5 years, benefited from the illicit activity, or knew or should have known that he benefit was the product of such illicit activity, is also inadmissible. One exception is if the son or daughter was a child at the time he or she received the benefit.

Money Laundering

Section 212(a)(2)(I) of the INA states that a person who the U.S. government knows, or has reason to believe, has engaged, is engaging, or seeks to enter the U.S. to engage, in money laundering is inadmissible. A person who the U.S. government knows is, or has been, a knowing aider, abettor, assister, conspirator, or colluder with others in money laundering, is also inadmissible.

When Do You Need an I-601 [INA § 212(h)] Waiver Due to Criminal and Related Grounds? 

Intended immigrants and permanent residents need an I-601 waiver under section 212(h) of the INA when they are barred from admission to the U.S. due to the following criminal grounds:

1. Crimes involving moral turpitude

2. One controlled substance violation involving simple possession of 30 grams or less of marijuana (or an equivalent amount of hashish)

3. Two or more criminal convictions (other than purely political ones) with an aggregate sentence imposed of at least five years

4. Prostitution

5. Unlawful commercialized vice, whether or not related to prostitution

6. Certain aliens involved in serious crimes who have asserted immunity from prosecution

When you are inadmissible due to crime-related grounds, you need the INA 212(h) waiver to get a green card, an immigrant visa, or a K visa to enter the U.S. or to be lawfully admitted to the U.S. as a permanent resident.

What are the Limitations of the I-601 [INA § 212(h)] Waiver?

The I-601 waiver under section 212(h) of the INA has several limitations:

It is not available for all crime-related grounds of inadmissibility. The I-601 waiver is unavailable to persons who are inadmissible under sections:

1. 212(a)(2)(A)(i)(II)[Controlled Substance Violation] – except when it relates to a single offense of simple possession of 30 grams or less of marijuana (or hashish); or

2. 212(a)(2)(C)[Controlled Substance Traffickers]

3. 212(a)(2)(G)[Foreign government officials who committed particularly severe violations of religious freedom]

4. 212(a)(2)(H)[Significant traffickers in persons/human traffickers]

5. 212(a)(2)(I)[Money laundering]

(NOTE TO NONIMMIGRANTS: A special authorization for admission as a nonimmigrant for crime-related grounds is available under section 212(d)(3)(A) of the INA. Whether you qualify for the nonimmigrant visa itself is a separate issue.)

It is not available to certain foreign nationals. The waiver cannot be granted, as a matter of discretion, to:

1. A foreign national who has been convicted of, or admitted committing murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.

2. A foreign national who has previously been granted permanent residence if, since the date of such admission, he has been convicted of an aggravated felony or he has not lawfully resided continuously in the U.S. for a period of not less than seven years immediately preceding the date of initiation of removal proceedings.

It does not waive prior removal orders and multiple illegal entries. The I-601 waiver does not cover the 5-year, 10-year, and 20-year bar due to prior removal orders. It also does not cover permanent bars caused by multiple unlawful entries into the U.S. To overcome such grounds of inadmissibility, you need to qualify for, seek and obtain an I-212 waiver by filing a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal .

It is not usually a stand-alone application. To obtain a section 212(h) waiver, the person must be applying or reapplying for adjustment of status, for a visa, or for admission to the United States. The section 212(h) waiver request is usually filed in conjunction with an I-485, adjustment of status application or an immigrant, K-3 or K-1 visa application.

One situation that allows a stand-alone request is when a permanent resident leaves the U.S. and is then charged as inadmissible, due to crime-related grounds, upon request for re-entry. Permanent residents who commit criminal offenses that make them inadmissible do not receive automatic re-entry to the U.S. Instead, they may file a stand-alone § 212(h) waiver in removal proceedings to retain their status. Stand-alone § 212(h) waivers may also be filed by immigrant visa holders, in which case, the waiver must be granted retroactively (nunc pro tunc) to make the visa valid.

Under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, lawful permanent residents (green card holders) who depart the U.S. and seek re-entry are generally not regarded as seeking admission and are thus not subject to INA 212 inadmissibility grounds. But when any of the six exceptions under INA § 101(a)(13)(C) applies, permanent residents are subject to being denied admission to the U.S. One is when the permanent resident has committed a criminal offense listed in section 212(a)(2) (including crimes of moral turpitude, drug trafficking, or prostitution), except if since such offense the person has been granted an INA 212(h) waiver or Cancellation of Removal for Certain Permanent Residents under INA  240A(a).

A permanent resident who is inadmissible under section 212(a)(2) is normally paroled into the U.S. as an arriving alien seeking admission and then placed in removal proceedings to respond to charges of inadmissibility under INA 212 (or charges of removability under INA 237). Parole allows a person, who may be inadmissible or otherwise ineligible for admission into the United States, to be paroled into the United States for a temporary period.

A permanent resident may request a stand-alone section 212(h) waiver — without reapplying for a visa or adjustment of status —  if he is presently requesting admission into the United States. This means he has to to be paroled into the country and referred to the Immigration Court as an arriving alien seeking admission. If the waiver (or other relief) is denied in removal proceedings, the permanent resident status is revoked and the Immigration Court may issue a removal order or a voluntary departure grant.

Who Qualifies for the I-601 [INA § 212(h)] Waiver?

You qualify for the I-601 waiver [§ 212(h) waiver] if you are one of the following:

1. An immigrant who has a U.S. citizen or permanent resident spouse, parent, son or daughter who will suffer extreme hardship if you are not admitted to the U.S.

2. A self-petitioning abused spouse or child of a U.S. citizen or permanent resident, under the Violence Against Women Act (VAWA).

3. Inadmissible only under prostitution grounds [sections 212(D)(i) or (D)(ii) of the INA]; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security to the United States.

4. Inadmissible due to certain criminal activities (e.g. a crime involving moral turpitude; single offense of simple possession of 30 grams or less of marijuana) that occurred more than 15 years before the date of application for a visa, admission, or adjustment of status; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security of the United States.

Being eligible for the I-601 waiver does not necessarily mean you will get it.  As with other waivers available under the INA, §212(h) waivers are granted in the exercise of discretion. In addition to meeting the statutory requirements, you must present evidence showing the positive factors outweigh the negative factors in their case. Even if you are eligible for the waiver, the agency may still deny the request as a matter of discretion.

If you are convicted of a violent or dangerous crime, you must demonstrate “extraordinary circumstances,” such as national security or foreign policy considerations, or that the denial of admission would result in “exceptional or extremely unusual hardship.” Even if this higher standard is met, the agency may still deny the request as a matter of discretion.

Where Do You File An I-601 [INA § 212(h)] Waiver Application? 

The §212(h) waiver request is filed on a Form I-601, either with the USCIS office that is adjudicating the adjustment of status application, the U.S. Consulate that conducted the visa interview, or the Immigration Court (if you are in removal proceedings and filing for adjustment of status OR requesting admission as a permanent resident who was paroled into the U.S.).

The filing address for the I-601 application depends on whether you are:

An adjustment of status applicant who is filing or has already filed the I-485 application with USCIS;

An immigrant visa or K-3/K-1 nonimmigrant visa applicant who was found inadmissible by the U.S. Consulate at the visa interview; or

A VAWA self-petitioner seeking an immigrant visa or adjustment of status.

Direct filing addresses for the I-601 are available on the USCIS website.

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Getting an I-601 waiver for criminal grounds involves more than just submitting the form and documents listed in the instructions. You must also show USCIS how you qualify for the waiver and deserve it as a matter of discretion. An experienced immigration attorney can help you maximize your chance for approval by presenting a legal brief and explaining how you meet the eligibility requirements.

For more information on what to submit with your application and why having an immigration attorney helps, read our related article, What should you to do get an I-601 waiver for criminal grounds? 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

Photo by: Mark Morgan

What should you do to get an I-601 waiver for immigration fraud or misrepresentation?

Section 212(a)(6)(C) of the Immigration & Nationality Act (INA) permanently bars you from immigrating to the U.S. or being lawfully admitted to the U.S. when you have been found to have (1) committed fraud or willful misrepresentation to gain immigration benefits, or (2) made a false claim to U.S. citizenship for any purpose or benefit under immigration, federal or state law.

If you are inadmissible due to fraud or misrepresentation, you need an I-601 waiver, available under INA § 212(i), to get a green card or immigrant visa. There is no waiver for false claims to U.S. citizenship, but you may have defenses and exceptions to establish the bar does not apply to you.

 

What Must You  Submit When Requesting an I-601 [INA § 212(i)] Waiver?

A section 212(i) waiver applicant must submit a completed and signed Form I-601Application for Waiver of Grounds of Inadmissibility. The Form I-601 filing fee and sometimes a biometrics fee are required.

The Form I-601 instructions include a list of supporting documents you should submit with your waiver request. Examples are affidavits from yourself and third parties describing extreme hardships; expert opinions; medical documentation; and reports of conditions in your home country.

Evidence of extreme hardship 

If you qualify for the waiver on the basis that your U.S. citizen or permanent resident spouse, parent, son or daughter, or K visa petitioner, will suffer extreme hardship if you are denied admission to the U.S., you must present documentary evidence of the “extreme hardship.”

Similarly, if you are a VAWA self-petitioner applying for the waiver, you must show the denial of admission will result in “extreme hardship” to yourself (or qualifying relatives).

The agency considers a variety of factors when determining whether there is extreme hardship. They include:

  • Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term; need for applicant to assist with physical or mental conditions.
  • Financial Considerations: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (e.g. elderly and sick parents).
  • Education:  Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade or pay level; availability of special requirements, such as training programs or internships in specific fields.
  • Personal Considerations: Close relatives in the U.S.; separation from spouse or children; ages of involved parties; length of residence and community ties in the U.S.
  • Special Factors: Cultural and language barriers; religious and ethnic obstacles; social unrest or civil war in your country; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures for support, guidance and protection.

Does Having an Immigration Attorney Make a Difference? 

Filling out the Form I-601 is just the first step. The harder part is convincing the agency that you are eligible for the waiver and deserve it as a matter of discretion.

Although “extreme hardship” is not defined by immigration law, it is more than just the normal emotional hardships or financial difficulties that result from family separation or relocation.  A good lawyer will help you prove your qualifying relatives will suffer extreme hardship if they are separated from you while you are abroad, or if they move overseas to be with you. If you are a VAWA self-petitioner, the lawyer will also help prove you personally would suffer extreme hardship if you are denied admission.

Immigration fraud/misrepresentation is particularly serious. The presence of aggravating factors (e.g. criminal record) and lack of positive factors (e.g. active involvement in community or volunteer organizations) could lead to a denial of your waiver request. Needing another waiver, such as a section 212(h) waiver (for criminal and related grounds) or a section 212(a)(9)(B)(v) waiver (for unlawful presence), further complicates your case. A good lawyer will help you prove the favorable factors outweigh the unfavorable factors in your case.

It’s much harder to get an I-601 waiver [INA § 212(i) waiver] when you file it on your own and don’t have the benefit of counsel. You have 30 days to file a motion to reopen/reconsider or an appeal if your waiver request is denied. Otherwise, you may re-file the application with new, material evidence. Federal courts lack jurisdiction to review an agency’s decision on an I-601 waiver.

A diligent, experienced immigration attorney will advise you on the documentary evidence to submit, prepare a legal brief explaining how you qualify for the waiver and why you deserve it, and put together a strong waiver application to maximize the chance of success.

For more information on when the fraud/willful misrepresentation bar applies, who qualifies for the I-601 [INA § 212(i)] Waiver, and the limitations of the waiver, read our related article, When do you need an I-601 Waiver due to immigration fraud or misrepresentation (and how do you get it)? 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

Photo by: Kevin Dooley

When do you need an I-601 Waiver due to immigration fraud or misrepresentation (and how do you get it)?

Immigration fraud or willful misrepresentation of a material fact bars you from adjusting to permanent resident status or from entering the U.S. as an immigrant, K-3 nonimmigrant, or K-1 fiancé(e) visa holder.

To overcome this bar to being lawfully admitted to the U.S., prospective immigrants must file for and receive an I-601 waiver when available under section 212(i) of the Immigration & Nationality Act. If the I-601 waiver is granted, you may then adjust status or enter the U.S. on an immigrant, K-3 or K-1 visa.

When Are You Inadmissible Due to Fraud or Misrepresentation [INA§ 212(a)(6)(C)]?

Immigration fraud or misrepresentation is a lifetime bar to adjusting to permanent residence or lawfully gaining admission to the U.S. (either as an immigrant or nonimmigrant).

Section 212(a)(6)(C)(i) of the Immigration & Nationality Act (INA) states that foreign nationals, who by fraud or willfully misrepresenting a material fact, seek to procure (or have sought to procure or have procured) a visa, other documentation, or admission into the United States or other immigration benefit are inadmissible.

Section 212(a)(6)(C)(ii) of the INA further states that foreign nationals who have made false claims to U.S. citizenship for any purpose or benefit under immigration law or federal or state law is inadmissible. The one exception is if each natural parent (or each adoptive parent) of the foreign national is or was a U.S. born or naturalized citizen; the foreign national permanently resided in the U.S. prior to turning age 16; and the foreign national reasonably believed at the time of making such false claims that he or she was a citizen.

When Do You Need an I-601 [INA § 212(i)] Waiver Due to Fraud or Misrepresentation?

You need an I-601 waiver under section 212(i) of the INA when you are inadmissible due to fraud or willful misrepresentation and seek an immigrant visa or green card.

You are inadmissible based on fraud if all the following elements exist:

1. You procured, or sought to procure, a benefit under U.S. immigration laws;

2. You made a false representation;

3. The false representation was willfully made;

4. The false representation was material;

5. The false representation was made to a U.S. government official, such as a USCIS officer, U.S. customs officer, or U.S. consular officer;

6. The false representation was made with the intent to deceive a U.S. government official authorized to act upon the request; and

7. The U.S. government official believed and acted upon the false representation by granting the benefit.

If the immigration benefit was denied, you may still be inadmissible for having “sought to procure” it by fraud. Although the fraud element requiring the U.S. government official to believe and act upon the false representation does not apply, an intent to deceive is still a required element.

In cases of attempted fraud, it’s hard for the agency to determine your intent to deceive when the fraud was unsuccessful. You may, however, still be inadmissible for willful misrepresentation, without any finding of fraud.

You are inadmissible based on willful misrepresentation of a material fact if all the following elements exist:

1. You procured, or sought to procure, a benefit under U.S. immigration laws;

2. You made a false representation;

3. The false representation was willfully made;

4. The false representation was material; and

5. The false representation was made to a U.S. government official, such as a USCIS officer, U.S. customs officer, or U.S. consular officer.

If the immigration benefit was granted, you are inadmissible for having procured the benefit by willful misrepresentation. If the immigration benefit was denied, you are still inadmissible for having “sought to procure” it by willful misrepresentation. In each case, an intent to deceive is not required.

If you are inadmissible for fraud, you are also inadmissible for willful misrepresentation. One example is when a person presents a fake (or someone else’s) passport and visa to a U.S. customs officer with the intent of deceiving the officer to gain entry into the U.S. , and the officer admits him based on the false representation. The person is inadmissible for both fraud and willful misrepresentation.

On the other hand, being inadmissible for willful misrepresentation does not necessarily make you inadmissible for fraud. For example, USCIS could find you willfully misrepresented a material fact, but there was no intent to deceive the officer and the officer did not believe and act upon the false representation.

The distinction between fraud and willful misrepresentation, however, is minor. Either way, the lifetime bar under section 212(a)(6)(C)(i) applies.  Without the I-601 waiver, you cannot get a green card, an immigrant visa, or a K visa.

What are the Limitations of the I-601 [INA § 212(i)] Waiver?

The I-601 waiver under section 212(i) of the INA has several limitations:

It is limited to immigration fraud or willful misrepresentation of a material fact to obtain immigration benefits. Section 212(i) does not provide an immigrant waiver for false claims to U.S. citizenship to procure immigration benefits or other benefits under federal or state law. Therefore, if you are found inadmissible under section 212(a)(6)(C)(ii), you must show that the bar actually does not apply to you. Potential defenses to a false claim to U.S. citizenship finding include:

1. The false claim was made prior to September 30, 1996, when the law took effect.

2. The false claim was not for a “purpose or benefit” under immigration law or federal or state law.

3. The false claim was not intentionally or knowingly made, particularly if you were a minor at the time.

4. The false claim was made by someone else, without your knowledge or involvement.

5. The false claim was timely and voluntarily retracted, before the lie is exposed or is about to be exposed.

It does not waive prior removal orders and multiple illegal entries. The I-601 waiver does not cover the 5-year, 10-year, and 20-year bar due to prior removal orders. It also does not cover permanent bars caused by multiple unlawful entries into the U.S. To overcome such grounds of inadmissibility, you need to qualify for, seek and obtain an I-212 waiver by filing a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal .

It is not a stand-alone application. The section 212(i) waiver request is normally filed in conjunction with an I-485, adjustment of status application or an immigrant, K-3 or K-1 visa application. The waiver request is submitted after USCIS (in the case of an adjustment applicant) or the U.S. Consulate (in the case of an immigrant or K-visa applicant) determines you are inadmissible due to fraud or misrepresentation. The waiver, by itself, confers no immigration benefits, such as permanent residence or employment authorization.

Who Qualifies for the I-601 [INA § 212(i)] Waiver?

To qualify for the I-601 waiver [§ 212(i) waiver] and be excused from the lifetime bar under section 212(a)(6)(C)(i), you must show you are one of the following:

1. An intended immigrant who is the spouse, son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S.

[NOTE: Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the §212(i) waiver.]

 

2. A VAWA self-petitioner who will suffer extreme hardship or whose U.S. citizen, lawful permanent resident, or qualified alien parent or child will suffer extreme hardship if you are not admitted to the U.S.

If you do not qualify for the waiver, you will have to present information, documents, and legal arguments establishing the section 212(a)(6)(C) finding is improperly applied to you. You cannot become a permanent resident unless you get the inadmissibility finding rescinded or you obtain the waiver. 

Being eligible for the I-601 waiver does not necessarily mean you will get it.  As with other waivers available under the INA, §212(i) waivers are granted in the exercise of discretion. In addition to meeting the statutory requirements, applicants must present evidence showing the positive factors outweigh the negative factors in their case. Even if the applicant is eligible for the waiver, the agency may still deny the request as a matter of discretion.

(NOTE to NONIMMIGRANTS: A special authorization for admission as a  nonimmigrant for false claims of U.S. citizenship is available under section 212(d)(3)(A) of the INA. The nonimmigrant 212(d)(3) waiver is also available for fraud or willful misrepresentation. Whether you qualify for the nonimmigrant visa itself is a separate issue.)

Where Do You File An I-601 [INA § 212(i)] Waiver Application? 

The §212(i) waiver request is filed on a Form I-601, which is submitted to a designated USCIS lockbox or service center, the USCIS Field Office that is adjudicating the I-485 adjustment of status application, or the Immigration Court (if the person is in removal proceedings).

The filing address for the I-601 application depends on whether you are:

An immigrant visa or K-3/K-1 nonimmigrant visa applicant who was found inadmissible by the U.S. Consulate at the visa interview; or

An adjustment of status applicant who is filing or has already filed the I-485 application with USCIS; or

A VAWA self-petitioner seeking an immigrant visa or adjustment of status.

Because direct filing addresses for the I-601 are subject to change, you must verify this information on the USCIS website.

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To receive an I-601 waiver for immigration fraud or misrepresentation, you need to do more than just submit the form and documents listed in the instructions. You also have to convince USCIS that you qualify for the waiver and deserve to get it. A qualified immigration attorney can guide you on the documentary evidence to submit and prepare a legal brief to support your waiver request.

For more information on what to submit with your application and why having an attorney helps, read our related article, What should you do to get an I-601 waiver for immigration fraud or misrepresentation? 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Fenris Oswin