Legal Requirements of the I-601 Waiver

The I-601 waiver (under Section 212(a)(9)(B)(v) of the Immigration and Nationality Act) waives the “unlawful presence” and “misrepresentation” grounds of inadmissibility for foreign nationals who have a U.S. citizen or lawful permanent resident spouse or parent.  A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

The foreign national must demonstrate that his/her U.S. citizen or lawful permanent resident spouse or parent would suffer “extreme hardship” if they cannot be united.

Extreme Hardship

The foreign national must demonstrate that his or her qualifying relative (the U.S. citizen or lawful permanent spouse or parent) would suffer extreme hardship if they cannot be united.  Hardship to the foreign national is only considered to the extent that it is a source of hardship to the U.S. citizen or lawful permanent spouse or parent.

USCIS officers will generally consider the following factors in determining whether extreme hardship has been met in any individual case:

  • Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.
  • 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 caring for family members (i.e., elderly and infirm 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 in grade; availability of special requirements, such as training programs or internships in specific fields.
  • Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
  • Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
  • Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

Spouses must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.

Applicants must submit the I-601 application; a thorough and persuasively-written extreme hardship statement; personal affidavits; and a comprehensive set of supporting documents to convince the consular officer that they will suffer more than the average person in the same situation.  I have in-depth experience in this niche area of immigration law and have successfully represented spouses throughout the United States since 2002.

Please refer to our in-depth discussion of “Extreme Hardship” for further information on “Extreme Hardship”.

USCIS Update as of August 29, 2016

The provisional waiver allows the spouse, children, and sons and daughters (married or unmarried) of U.S. citizens or U.S lawful permanent residents to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States.  They must be able to demonstrate that being separated from their U.S. citizen or U.S. lawful permanent resident spouse or parent would cause that U.S. citizen relative extreme hardship.

This means that the “risk” of going abroad to process for an immigrant visa is significantly reduced since a provisional waiver approval is already received before the applicant departs the United States.

Filing of the provisional waiver first requires approval of the immigrant relative petition (family-based or employment-based) or selection in the Diversity Visa Program and proof of payment of the immigrant visa fee with the U.S. Department of State’s National Visa Center.

As part of my legal service for I-601A Provisional Waiver clients, I always include preparation and filing of the immigrant visa petition (family-based) to establish eligibility for submission of the I-601A Provisional Waiver.