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Form I-864: Alternatives to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

Posted on April 30, 2016 | Comments Off on Form I-864: Alternatives to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

The Form I-864, Affidavit of Support, is key to meeting the financial requirement for permanent residence and avoiding a public charge determination in most family-based and some employment-based immigrant visa or adjustment cases. Failure to meet the I-864 requirements may cause the U.S. Consulate or USCIS to determine you will likely become a “public charge,” i.e. become primarily dependent on the U.S. government for subsistence. This ground of inadmissibility bars you from receiving an immigrant visa or green card.

The petitioner who filed the immigrant petition on your behalf must also be your sponsor who files a Form I-864 to support your immigrant visa or adjustment application. When the petitioner does not earn enough income to sponsor you, there are alternatives to meeting the financial requirement.

What income requirement must the sponsor meet? 

To qualify as a sponsor, most petitioners must show their current annual household income is at least 125% of the federal poverty level for their household size.

Sponsors who are on active duty in the U.S. Armed Forces, including the Army, Marines, Navy, Air Force, or Coast Guard, and are sponsoring a spouse or minor child, only need to earn an income of 100% of the federal poverty level for their household size. (This exception does not apply to joint or substitute sponsors).

The federal poverty level, per household size, is set once a year and is shown in the Form I-864, Poverty Guidelines.

The household size includes:

  • the sponsor
  • the sponsor’s spouse (even if they are separated or live separately)
  • the sponsor’s unmarried children under 21 (regardless of where they live)
  • any person listed as a dependent on the sponsor’s last tax return
  • the intending (sponsored) immigrant
  • any derivative beneficiaries (i.e. those without a separate I-130 petition being filed on their behalf) who are accompanying the principal beneficiary (i.e. immigrating at the same time or within six months of the principal immigrant)
  • any immigrants previously sponsored with Form I-864 (or Form I-864 EZ), Affidavit of Support.

What are the alternatives if the sponsor does not earn enough income? 

There are situations in which the petitioner does not earn enough income to sponsor the immigrant. Examples include retired U.S. citizen parents,  U.S. citizen spouses who are still attending school and do not work full time, and petitioners with large household sizes.

When the petitioner does not qualify financially as a sponsor, there are other ways to meet the financial requirement for permanent residence and avoid a public charge determination.

1. The Sponsor May Get a Joint Sponsor to File a Separate Form I-864

A joint sponsor may submit a separate Form I-864, Affidavit of Support, when the sponsor (petitioner) does not earn sufficient income. A joint sponsor does not have to be related to the sponsor or the intending immigrant. But like the sponsor, the joint sponsor must:

  • Be a U.S. citizen or national or a permanent resident.
  • Be at least 18 years old.
  • Be domiciled (live) in the United States or a territory or possession.  (If they live abroad, they may show their residence abroad is temporary and they still have a domicile in the U.S. or will establish a domicile in the U.S. on or before the date of the principal intending immigrant’s admission or adjustment of status).
  • Meet all of the financial requirements.

Joint sponsors must meet the income threshold for their household size, independently. They cannot combine their income with the sponsor’s or another joint sponsor’s income to satisfy the requirement.

Intending immigrants are allowed only one joint sponsor. In family-based preference category cases including a principal beneficiary and at least one accompanying derivative beneficiary, the sponsor may use up to two joint sponsors.

2. The Sponsor May Use the Intending Immigrant’s Income to Overcome the Income Shortage (in Limited Cases)

The sponsor may include the income from the intending immigrant, if that income will continue from the same source after immigration. The intending immigrant must also currently reside with the sponsor, unless he or she is sponsor’s spouse.

The sponsored immigrant whose income is being used to meet the income requirement does not need to submit a Form I-864A, Contract Between Sponsor and Household Member, unless a spouse and/or children is immigrating with the sponsored immigrant. In this instance, the I-864A relates to support for the spouse and/or children.

3. The Sponsor May Include Income from Certain Relatives or Dependents

Sponsors may include income from U.S. citizen or permanent resident relatives (spouse, adult child, parent, or sibling) living in their household, or U.S. citizen or permanent resident dependents claimed in their most recent federal income tax return (regardless of where they live). The relative or dependent must also earn income that meets the federal poverty level for their household size.

The relative or dependent must submit a Form I-864A, Contract Between Sponsor and Household Member, agreeing to be jointly responsible for the sponsored immigrant. They must also be at least 18 years old when they sign the I-864A.

4. The Sponsor May Supplement Income With Assets

To supplement income, the sponsor may use the value of assets that can be converted into cash within one year and without considerable hardship or financial loss to the owner. Examples are money in a bank account, stocks or bonds, the net value of a second automobile, and the net value of a home or other real estate.

The assets used must be owned by (1) the sponsor, (2) the sponsor’s U.S. citizen or permanent resident relative (spouse, adult child, parent, or sibling) who resides with the sponsor and submits a Form I-864A , Contract Between Sponsor and Household Member, or (3) the intending immigrant (regardless of where he or she lives).

The value of the assets must be at least five times the difference between the sponsor’s total household income and the current federal poverty guideline for his or her household size. The exception is when a U.S.  citizen is sponsoring a spouse or minor child.  In that case, the assets must total at least three times the difference.

The sponsor must include evidence of the value of the assets used, such as a bank account record showing the  money has been on deposit for the last 12 months, and real estate appraisals with evidence of the sum of all loans secured by a mortgage, trust deed, or any other lien on the property.

USCIS or the NVC May Issue a Request for Evidence on the I-864 Requirement

U.S. Citizenship & Immigration Services (USCIS), which adjudicates I-485, adjustment to permanent residence applications, may issue a Request for Evidence when it determines the I-864 is deficient. Currently, the National Benefits Center (NBC) — usually through contract employees – do the initial screening of the I-864 based on a checklist.

The National Visa Center (NVC), which processes immigrant visa applications before they are forwarded to the U.S. Consulate abroad, may also issue RFEs concerning the I-864.

When an RFE is issued, USCIS and the NVC stops processing the case. Interim benefits, such as employment authorization and advance parole for I-485 applicants, are also delayed until an RFE response is submitted.

If the NBC determines  the response is inadequate, it will not forward the case to the USCIS Field Office for adjudication and will deny the I-485 due to failure to provide an adequate response. Similarly, the NVC may refuse to forward the immigrant visa case to the U.S. Consulate if it determines the RFE response is insufficient.

At the adjustment interview, USCIS may ask for current evidence that the financial requirement is met. The U.S. Consulate may also ask for additional financial evidence at the immigrant visa interview.  Nevertheless, the proper submission of required forms and documents and timely, full responses to RFEs permit the case to move forward.

Can an RFE Be Issued in Error? 

RFEs are issued for a variety of legitimate reasons, such as lack of evidence of the sponsor’s current income, missing federal tax return and W2s for the most recent tax year, and mistakes in filling out the I-864. But some RFEs are issued in error, such as when USCIS or the NVC overlooks evidence that the income requirement is met.

An RFE can be issued in error when the sponsor’s Current Individual Annual Income  meets the income requirement, but the total income for the most recent tax year is less than the federal poverty level for the household size. Such RFEs ask for evidence of assets or a separate I-864 from a joint sponsor to overcome the perceived income shortage.

The regulations and USCIS policy, however, state that the sponsor’s current annual income – not income on the federal tax return for the most recent tax year – is what really counts. Current income refers to the total earnings the sponsor expects to earn from the start to the end of the calendar year.  Income includes both taxable and nontaxable income, such as certain federal or state benefits (e.g. social security retirement or disability), as well as unemployment or workers compensation.

The sponsor should submit evidence of current income (e.g. pay statements for the last six months and current letter of employment), even though this is not required initial evidence.

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For more information, read our related article, Form I-864: Key to Meeting the Financial Requirements for Permanent Residence and Avoiding a Public Charge Determination.

Consult an immigration attorney to help you meet the financial requirements for permanent residence and avoid a public charge determination. The best time to speak with an attorney is before you file for the immigrant visa or for adjustment, not after you receive an RFE.

A qualified attorney can evaluate whether the sponsor meets the income requirements and, if he or she does not, recommend alternatives to make up for the shortfall.

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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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Form I-864: Key to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

Posted on April 30, 2016 | Comments Off on Form I-864: Key to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

Section 212(a)(4) of the Immigration and Nationality Act (INA) prohibits you from receiving an immigrant visa or adjusting to permanent residence if you are likely, at any time, to become a public charge. To show you are not inadmissible on this ground, a Form I-864, Affidavit of Support, filed on your behalf is required in most family-based and some employment-based immigrant visa or adjustment cases.

What Factors are Considered When Determining Whether A Person is Likely to Become a Public Charge? 

“Public charge” means you are likely to become primarily dependent on the U.S. government for subsistence, either through receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.

Totality of the Circumstances

U.S. Consulates and USCIS consider certain factors, including your age, health, family status, assets, resources, financial status, education and skills. The officer weighs the positive and negative factors and examines the “totality of the circumstances” when making a public charge determination.

Under the totality of the circumstances test, a person “who is incapable of earning a livelihood, who does not have sufficient funds in the United States for his support, and has no person in the United States willing and able to assure that he will not need public support is excludable as likely to become a public charge.”

Receipt of Cash Benefits

If you have received certainly publicly funded benefits, the officer takes this into account. The types of cash benefits received that could lead the officer to find you will become a public charge include:

  • Supplemental Security Income (SSI) under Title XVI of Social Security Act
  • Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program) (Note: Non cash benefits under TANF such as subsidized child care or transit subsidies cannot be considered and non-recurrent cash payments for crisis situations cannot be considered for evidence of public charge)
  • State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs)
  • Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution). (Note: costs of incarceration for prison are not considered for public charge determinations)

Receiving cash assistance for income maintenance and institutionalization for long-term care (e.g nursing home) at government expense is also considered, but in the context of the totality of the circumstances.

Public benefits that one family  member receives are not attributed to other family members, unless the cash benefits amount to the sole support of the family.

This list is not exhaustive. The officer will consider receipt of any cash benefits not listed above by examining the totality of the circumstances. A public charge determination, however, cannot be based solely on previous (or current) receipt of public benefits.

Non-cash or special-purpose cash benefits are generally not taken into account as they are usually supplemental and do not make you primarily dependent on the government for subsistence. Examples are:

  • Medicaid and other health insurance and health services, other than support for long-term institutional care
  • Children’s Health Insurance Program (CHIP)
  • Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
  • Housing benefits
  • Child care services
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
  • Emergency disaster relief
  • Foster care and adoption assistance
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
  • Job training programs
  • Transportation vouchers
  • In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
  • State and local programs that serve similar purposes as the federal programs listed above (e.g. “Medi-Cal” in California).
  • Federal, state, or local programs in which benefits are paid in-kind, by voucher or by any means other than cash

In addition, cash payments that have been earned, such as Social Security benefits, old age survivors disability insurance (OASDI), government pensions, and veterans’ benefits, are not considered. Unemployment compensation is also not taken into account for public charge purposes.

Form I-864, Affidavit of Support

By itself, the absence or insufficiency of an affidavit of support — when required by the law governing certain immigration benefits, such as most family-based immigrant visa and adjustment applications —  can lead the officer to find you are likely to become a public charge.

When is a Form I-864, Affidavit of Support, Required? 

The Form I-864 is required for most family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and are unlikely to rely on the U.S. government for subsistence.

Normally, you must submit a Form I-864, Affidavit of Support, completed by the petitioner to support your immigrant visa or adjustment of status application if you fall in of any of these categories:

  • Immediate relatives (parents, spouses, and unmarried children under the age of 21, including orphans) of U.S. citizens
  • Relatives who qualify for immigration under one of the family based preferences:
    • First Preference: Unmarried, adult sons and daughters of U.S. citizens (Adult means 21 years of age or older)
    • Second Preference: Spouses of permanent residents and the unmarried sons and daughters (regardless of age) of permanent residents and their unmarried children
    • Third Preference: Married sons and daughters of U.S. citizens, their spouses and their unmarried minor children
    • Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their unmarried minor children
  • Employment based preference immigrants when a U.S. citizen or permanent resident relative (spouse, parent, child, adult son or daughter, brother or sister) filed the immigrant visa petition, or the relative has a significant ownership interest (5% or more) in the entity that filed the petition.
[NOTE: Although the Form I-864 is not required, by law, in a K-1 visa application of a fiance(e) of a U.S. citizen, many U.S. Consulates will request proof of financial support to ensure the applicant will not become a public charge in the United States. In any event, a K-1 visa holder who then enters the U.S. and marries the U.S. citizen will need to submit a Form I-864 and proof of financial support from the citizen petitioner as part of the Form I-485 adjustment to permanent residence application.]

You do not need to submit an I-864, even if you fall in any of the above categories, if you can show you:

  • Already worked 40 qualifying quarters as defined in Title II of the Social Security Act
  • Can be credited with 40 qualifying quarters as defined in Title II of the Social Security Act
  • Are the child of a U.S. citizen and if admitted for permanent residence on or after February 27, 2001, would automatically acquire citizenship under Section 320 of the Immigration and Nationality Act, as amended by the Child Citizenship Act of 2000.

What is the Form I-864, Affidavit of Support, and Who Submits It? 

The I-864 serves to prove you have the financial means to live in the U.S. without needing welfare or financial benefits from the U.S. government.

The U.S. citizen or permanent resident who filed the Form I-130 immigrant petition for you must be the sponsor who signs and submits the I-864 on your behalf. Sponsors are also required to file their federal tax returns for the three most recent years (if required by  law) and submit their last year’s tax returns with the I-864, regardless of their income level. In some situations, a joint sponsor or substitute sponsor is required and allowed.

The I-864 is a legally enforceable contract with the U.S. Government in which the sponsor, joint sponsor or substitute sponsor agrees to support the immigrant at a minimum annual income level. In the contract, they also agree to reimburse any federal or state agency that provides a means-tested benefit to the immigrant.

The sponsored immigrant may sue a sponsor, joint sponsor or substitute sponsor to enforce the contract to provide financial support. If the immigrant ever receives a means-tested benefit, the agency that provided it can also seek reimbursement from the sponsor, joint sponsor or substitute sponsor.

The contractual obligations under the I-864 begins when the immigrant visa or green card is granted. The affidavit of support may be withdrawn only before permanent residence is granted.

The contractual obligations continue until the sponsored immigrant becomes a U.S. citizen, or can be credited with 40 qualifying quarters of work (generally 10 years of work) in the United States. The sponsor, joint sponsor and substitute sponsor’s obligations also end if they or the sponsored immigrant dies or if the sponsored immigrant ceases to be a lawful permanent resident.

What are the Basic I-864 Requirements?

A sponsor, joint sponsor, and substitute sponsor must:

  • Be a U.S. citizen or national or a permanent resident.
  • Be at least 18 years old.
  • Be domiciled (live) in the United States or a territory or possession.  (If they live abroad, they may show their residence abroad is temporary and they still have a domicile in the U.S. or will establish a domicile in the U.S. on or before the date of the principal intending immigrant’s admission or adjustment of status)
  • Meet all of the financial requirements

Sponsor

Normally, sponsors must show their current annual household income is at least 125% of the federal poverty level for their household size.

The federal poverty level, per household size, is set once a year and is shown in the Form I-864, Poverty Guidelines.

The household size includes the sponsor, the sponsor’s spouse (even if they are separated or live separately), the sponsor’s unmarried children under 21 (regardless of where they live), any person listed as a dependent on the last tax return, the intending immigrant, and any derivative beneficiaries who are accompanying the principal beneficiary (i.e. immigrating at the same time or within six months of the principal immigrant).

Joint sponsor

When sponsors do not meet the minimum income requirement, they may use alternatives. The most common way is to submit a separate Form I-864 from a joint sponsor who meets the income requirement independently for his or her household size, which includes the intended immigrant. .

A joint sponsor must meet all the same requirements as the sponsor, except the joint sponsor does not have to be related to the immigrant.

Each immigrant visa or adjustment applicant may have only one joint sponsor. In in family-based preference category cases involving a principal beneficiary and at least one accompanying derivative beneficiary, the sponsor may use up to two joint sponsors.

Lawsuits against joint sponsors to enforce the I-864  do not usually arise unless there is a dissolution of marriage between the sponsor and immigrant or the sponsor is completely unable or unwilling to support the immigrant.

Substitute sponsor

If the petitioner (sponsor) dies after approval of the visa petition, and USCIS agrees to allow the immigrant visa or adjustment process to continue, a substitute sponsor must file a separate Form I-864.

In addition to meeting the same requirements as the sponsor, substitute sponsors must be related to the intending immigrant in one of the following ways:

  • Spouse
  • Parent
  • Mother-in-law
  • Father-in-law
  • Sibling
  • Child (if at least 18 years of age)
  • Son
  • Daughter
  • Son-in-law
  • Daughter-in-law
  • Sister-in-law
  • Brother-in-law
  • Grandparent
  • Grandchild
  • Legal guardian of the beneficiary

Substitute sponsors exist only when the sponsor has died. As such, lawsuits to enforce the I-864 against substitute sponsors arise only in the event of a sponsor’s death.

***

For more information, read our related article, Form I-864: Alternatives to Meeting the Financial Requirements for Permanent Residence and Avoiding a Public Charge Determination.

The proper filing of a Form I-864 is key to meeting the financial requirement for permanent residence and avoiding a public charge determination in most immigrant visa or adjustment cases. The I-864 instructions can be confusing and do not always provide answers to questions you have about the public charge issue.

The Form I-864EZ is a shorter version of the Form I-864 and is used only if three conditions are met: (1) The sponsor is the person who filed or is filing a Form I-130, Petition for Alien Relative, for the sponsored immigrant; (2). The sponsored immigrant is the only person listed on the Form I-130; and (3) The income being used to qualify is based entirely on the sponsor’s salary or pension and is shown on one or more Internal Revenue Service (IRS) Form W-2s provided by employers or former employers.

Consult an immigration attorney to receive full guidance on the financial aspects of becoming a permanent resident or sponsoring an immigrant. While immigration attorneys offer dual representation to both the petitioner (sponsor) and intending immigrant, many will not provide advice to joint sponsors and other third parties whose income is being used, due to a potential conflict of interest.

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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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What should you do get an I-601 waiver for unlawful presence?

Posted on February 29, 2016 | Comments Off on What should you do get an I-601 waiver for unlawful presence?

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.

* * *

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

Posted on January 30, 2016 | Comments Off on 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-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 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.

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Photo by: Tiago Pinheiro

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Posted in adjustment of status, good moral character, green card, immigrant petition, immigrant visa, immigration consequences of criminal convictions, K-1 visa, K-3 visa, The Legal Immigrant - Immigration Blog, waiver

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

Posted on January 30, 2016 | Comments Off on 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 – (at least) one Crime Involving Moral Turpitude (CIMT), other than a purely political offense.

Even when there is no conviction, there is a valid admission of a crime when the USCIS officer or U.S. consular officer follows formal procedures to obtain it, including placing the applicant under oath and having him admit to all the key elements of the crime.

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. To be subject to this permanent bar, the person must be convicted of or admit to the essential elements of a controlled substance violation.

On a medical examination report, in connection with a green card or immigrant visa application, a person may acknowledge to a civil surgeon or a panel physician that he or she has used a controlled substance, which the physician then may annotate on the medical documentation. While this acknowledgement, by itself, is not a valid admission to a controlled substance violation, it opens a line of questioning to determine criminal inadmissibility.

Arrests and charges for controlled substance violations – even when there is no conviction or guilty plea –  also usually results in further questioning at the green card or immigrant visa interview.

As with obtaining a valid admission to a CIMT, a USCIS officer or U.S. consular officer may place the applicant under oath and use certain procedures to procure a formal admission to a controlled substance violation.

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 deemed inadmissible under sections:

1. 212(a)(2)(A)(i)(II)[Controlled Substance Violation] – except when it relates to one 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 was granted permanent residence and failed to accrue at least seven years of lawful continuous residence in the U.S. before receiving a Notice to Appear in removal proceedings.

[NOTE: On May 12, 2015, the Board of Immigration Appeals issued a decision, Matter of J-H-J, 26 I&N Dec. 563 (BIA 2015), stating that a person who adjusted to permanent resident status in the U.S. and who did not enter the country as an LPR is not barred from establishing 212(h) eligibility as a result of an aggravated felony conviction.   Based on this BIA decision, only those who entered the U.S. as LPRs and thereafter are convicted of an aggravated felony are prohibited from applying for a 212(h)waiver.]

 

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

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Posted in adjustment of status, green card, immigrant petition, immigrant visa, immigration consequences of criminal convictions, K-1 visa, K-3 visa, The Legal Immigrant - Immigration Blog, waiver

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