An I-601 Waiver can be useful in a variety of situations. If you have questions about what a waiver is, or why you might need one, click here.
Here, we’ll cover:
- Which grounds of inadmissibility an I-601 Waiver can cover
- Which types of cases it can be used in
- The legal standard the government uses to make a decision on your case
- Procedure to Apply and Expected Timeline for each type of case
Which Grounds of Inadmissibility Does an I-601 Waiver Cover?
This type of waiver is very useful and can be used for many different grounds of inadmissibility, including:
- Unlawful Presence: when you have remained in the U.S. without permission for more than 180 days
- Immigration Fraud and Misrepresentation: when you have tried to get some sort of immigration benefit (a visa, entry into the country, a Green Card, etc.) by lying to an official, not giving an official information, or presenting some sort of false document to an immigration official (this does not include any false claims to being a US Citizen)
- Immigrant Smuggling: when you have helped your spouse, parent, son or daughter enter the United States illegally
- Smuggling includes encouraging, inducing, assisting, abetting, or aiding someone to enter the country illegally
- Individuals who have smuggled any other person are ineligible for a waiver
- Health-Related Grounds:
- Individuals who have communicable diseases
- These include Class A Tuberculosis, chancroid, gonorrhea, granuloma inguinale, lymphogranuloma venereum, infectious syphilis, infectious leprosy, other communicable diseases selected by the U.S. Secretary of Health and Human Services
- Individuals who do not have all the required vaccinations
- Individuals who have a physical or mental disorder with associated harmful behavior
- Individuals who have communicable diseases
- Criminal Grounds: people who have committed certain crimes (in some cases even when they were not convicted)
- Most Crimes Involving Moral Turpitude
- Possession of less than 30 grams of marijuana
- Two or more convictions for which the sentences were a total of 5 years or more
- Unlawful commercialized vice
- Certain aliens who have asserted immunity from prosecution
- Individuals who have been a member of a Totalitarian Party
- Individuals who are subject to a civil penalty under INA §212 (a)(6)(F)
- Additional grounds of inadmissibility may be covered by an I-601 Waiver if you are applying for TPS, NACARA, HRIFA, VAWA, T Status, Special Immigrant Juvenile Status
Which Types of Cases Can Use an I-601 Waiver?
An I-601 Waiver can be used in many different types of cases. The most common ones are Adjustment of Status (applying for a Green Card inside the U.S.), Consular Processing of an Immigrant Visa (applying for a Green Card outside the U.S.) and removal proceedings (applying for a Green Card in front of an Immigration Judge). It might also be used in applying for TPS, NACARA, HRIFA, VAWA, T Status, Special Immigrant Juvenile Status, and K-1 and K-2 applicants.
The Legal Standard Used
The legal standard is the amount and type of evidence required to obtain an approval of the waiver. It varies depending on the ground of inadmissibility. The most common waivers in our office are for Unlawful Presence and Immigration Fraud/Misrepresentation. The legal standard that must be shown in these cases is Extreme Hardship to a U.S. Citizen or LPR spouse or parent (not child). That means that in order for your waiver to be approved, you must show that your “Qualifying Relative” would suffer Extreme Hardship if your waiver was denied. The Extreme Hardship legal standard is also used for certain criminal grounds of inadmissibility. In these cases, a U.S. Citizen or LPR child can also be the Qualifying Relative.
For those individuals who do not have a required vaccine, you must show that vaccinations are against your religious beliefs or moral convictions.
For individuals who have engaged in immigrant smuggling of a spouse, parent, son or daughter, you must show that the application should be granted for humanitarian purposes, to assure family unity, or that is otherwise in the public interest.
The legal standard for those applying for TPS, NACARA, HRIFA, VAWAY, T Status, Special Immigrant Juvenile Status, or a K-1 or K-2 Visa varies depending on the type of application and ground of inadmissibility. More information can be found in the instructions to the Form I-601.
Procedure to Apply and Timelines
The procedure required to apply for a waiver depends on the type of case. We will only cover the most common types here.
Adjustment of Status: In an Adjustment of Status case, the I-601 waiver can be sent together with the I-485 application package, or filed after an officer has determined you are inadmissible at your interview.
If filing the waiver with the application, it can generally be sent in the same package to the same address. The officer at the local USCIS office who interviews you (or a supervisor) will be the one to decide whether your waiver will be approved. Filing the waiver with the I-485 application allows you to talk to the officer in person about why your waiver should be approved. At our local office in Boston (and most other offices in Massachusetts, Maine, Vermont, New Hampshire and Rhode Island), you will most likely not get a decision on the waiver at your interview. A decision on your case can take anywhere from a week to a few years. An attorney can help minimize this time by staying in contact with the local office.
You can also wait until your interview to decide to file your waiver. Depending on the circumstances, the interviewing officer may decide that a waiver isn’t necessary. However, there are risks to this strategy: the officer could decide to deny your case without giving you a chance to file the waiver (which is uncommon), or issue you a letter requesting that your waiver be delivered to them within either 30 or 84 days. If you haven’t yet prepared your waiver, it is extremely difficult to do within 30 days, and still difficult to complete in 84 days. Our office often spends six months preparing waivers.
When our office files a waiver after the interview, we send the signed form, application fee and supporting documents to the address designated on the USCIS website, and also send the form, supporting documents and I-601 Receipt Notice to the local USCIS office. This must all be done within the time frame given by the letter, or the case can be denied. As with the waiver filed with the I-485 Form described above, it can take anywhere between a week and a few years to receive a decision on a waiver from the local office.
Consular Processing of an Immigrant Visa: For those who need to process their application for a Green Card through a U.S. Consulate, the procedure to file a waiver has more steps. First, an Immigrant Relative Petition (I-130) must be filed with USCIS. Once approved, the case is transferred to the National Visa Center (part of the Department of State). The National Visa Center will notify you of the Immigrant Visa interview at a U.S. Consulate abroad. When you attend your interview, if you are found inadmissible, the Consulate will give you a denial letter telling you why you are ineligible for an immigrant visa. Once you have this letter, you can then (and only then) file your I-601 Waiver with USCIS. If your waiver is approved, USCIS will notify the Consulate. Depending on how much time has gone by, you may be required to attend a second interview, or just update certain documents. After this step is complete, the Consulate will return your passport and visa to you, and you can enter the United States as a Permanent Resident. With all these steps, the timeline can vary greatly from one case to another. The waiver decision by USCIS, though, usually takes between three and nine months.
I-601A Provisional Waiver: Certain people are eligible to apply for a Provisional Waiver while inside the United States, and consular process their case if and when it is approved. More more information, click here.