Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. Under section 212(a)(9)(B)(i)(II), the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. When you are subject to the 3/10 year unlawful presence bar, you need an I-601 waiver, available under INA § 212(a)(9)(B)(v), to return to the U.S. as an immigrant.
What Must You Submit When Requesting an I-601 [INA § 212(a)(9)(B)(v)] Waiver?
A section 212(a)(9)(B)(v) waiver applicant must submit a completed and signed Form I-601, Application 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.
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(i) waiver (for fraud or willful misrepresentation) also 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 unlawful presence 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.
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Any period of unlawful presence prior to April 1, 1997 – the date the law went into effect – does not count toward the 3 year/10 year bars. In addition, a minor who is unlawfully present while under age 18 does not accrue any time toward the 3 or 10 year bars. Upon turning 18, he begins to accrue unlawful presence toward the bars.
For more information on when the 3/10 year bar applies, who qualifies for the I-601 [INA § 212(a)(9)(B)(v)] Waiver, and the limitations of the waiver, read our related article, When do you need an I-601 waiver due to unlawful presence (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.
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