Filing an I-601 Application for a Waiver in Your Immigration Case

Certain foreign citizens who are ineligible to immigrate to the United States because they are "inadmissible" can request a waiver (forgiveness) of inadmissibility from the U.S. government. If it's approved, they can proceed with their green card application. The form for doing this is called Form I-601, and is issued by U.S. Citizenship and Immigration Services (USCIS) and available for free download.

What Does It Mean to Be Inadmissible to the U.S.?

Despite being otherwise eligible for a U.S. visa or lawful permanent residence (a green card), the U.S. government can refuse entry to anyone who falls within the list of grounds of inadmissibility found in Section 212 of the Immigration and Nationality Act (I.N.A.). The idea is to protect the United States from people who pose security, health, or related risks, or who appear likely to need public assistance (often called welfare).

Some grounds of inadmissibility apply to all visa or green card applicants, such as to people with a criminal record or links to terrorism.

Other grounds are applied only to some categories of visa applicants but not to others. For example, people applying for family-based immigrant visas often face the greatest scrutiny when it comes to proving that they won't need public assistance (or in technical terminology, are not likely to become "public charges").

When Will You Find Out That You're Inadmissible to the United States?

If you have done your research, or are working with a lawyer, you might figure out that you are likely to be considered inadmissible before you submit your application for a visa or green card. In that situation, it's often possible to submit the Form I-601 waiver request along with the rest of your application materials. Such an approach can save you significant time.

The benefits to filing the waiver up front are potentially even greater if you are inadmissible based on excessive unlawful presence in the U.S., and likely subject to a three- or ten-year time bar on returning if you leave the U.S. (for your consular interview, for instance). Some immediate relatives of U.S. citizens can actually apply for a "provisional" or "stateside" waiver using Form I-601A rather than the regular Form I-601, allowing them to receive a 'yes' or 'no' answer before their departure from the United States. For details, see Staying in the U.S. With The I-601A Provisional Waiver of Inadmissibility and Tips for Filing an I-601A Provisional Waiver Application.

You might not, however, discover that you are considered inadmissible until you are at your interview for a visa or green card. In that case, if a waiver is available, you will probably be given more time in which to submit your waiver request.

Filing Locations for I-601 Waiver Application

If you are outside the United States, you must file Form I-601 with the U.S. embassy or consulate where you apply for a visa. If you are already in the United States, and applying to adjust status, you would file Form I-601 with U.S. Citizenship and Immigration Services (USCIS).

Not All Grounds of Inadmissibility Can Be Waived

Certain categories of inadmissibility are considered so serious that the U.S. government provides no waiver for them. For example, a foreign-born person will not be eligible for a waiver if U.S. immigration authorities believe they are a murderer, torturer, drug abuser or addict, spy or saboteur, or terrorist, or have participated in genocide or the persecution of others, have made false claims to U.S. citizenship, are unlawfully present in the U.S. after previous immigration violations, and so on.

You'll need to carefully research the specific ground of inadmissibility described in the I.N.A. that you've been accused of in order to discover whether it comes with a waiver and the waiver terms. Get a lawyer's help with this.

Basic Eligibility to File Form I-601 Waiver Request

In order to file Form I-601, your application for a green card or other immigration benefit must fall within one of the following categories:

• immigrant visa
• adjustment of status
• K-1 or K-2 nonimmigrant visa
• K-3, K-4, or V nonimmigrant visa
• Temporary Protected Status (TPS)
• Nicaraguan Adjustment and Central American Relief Act (NACARA)
• Haitian Refugee Immigrant Fairness Act (HRIFA)
• Violence Against Women Act (VAWA) self-petition, or
• T nonimmigrant visa status holder filing for adjustment of status who is inadmissible due to a ground that has not already been waived.

However, as described above, merely fitting within one of these categories does not make you eligible to file Form I-601. There needs to be a waiver available in your category of inadmissibility. And, you'll need to make a convincing case that you deserve it.

Presenting a Convincing Case for a Waiver of Inadmissibility

Waiver approvals are made on a discretionary basis. Despite filling out the appropriate form and supplying lots of documents, under no circumstances will it be mandatory for U.S. immigration authorities to grant your waiver. It's up to their wishes and judgment.

So, you'll need to present not only the form but documents, preferably from authoritative sources, backing up the facts you're asserting in your waiver request.

Many immigration waivers require proving extreme hardship to a U.S. citizen or lawful permanent resident who is your immediate family member. In other words, you might need to show that if you were denied the visa or green card, your spouse, parent, or child would not only face the sadness of being separated from you or the difficulty of moving to your home country, but would encounter additional hardship on top of that.

Simply claiming, "My family will face extreme hardship!" isn't going to get you a waiver. The classic case is where the U.S. citizen or permanent resident has special emotional or physical/medical needs. In addition, you will need to provide documentary evidence that supports your claim and your reasons for seeking a waiver. For example, gather:

• affidavits from professionals or friends who know your family situation
• police and other reports showing conditions in your home country
• medical and psychiatric reports and records, and descriptions of the availability of treatment and medical care in the country in which you would have to relocate (as supported by a medical professional's statement), and
• other evidence showing the unique impact of separation or relocation on your family.

Filing Fees for the I-601 Waiver Application

You must pay a fee when you file Form I-601. These fees change regularly, so check for the latest on the I-601 page of the USCIS website. However, you can request a waiver of this filing fee if you are a:

• VAWA self-petitioner
• applicant for a T visa or U visa
• battered spouse or child of a lawful permanent resident or U.S. citizen
• applicant for Temporary Protected Status (TPS)
• in a category of applicant for whom a determination of the likelihood of becoming a public charge is not required.

Getting Legal Help

Filing a waiver of inadmissibility with Form I-601 is a complex process with serious consequences if you are denied. You would be well-advised to contact an attorney to assist you.