Rachel Browning’s Legal Blog

            As an immigration attorney I receive from time to time, calls from individuals whose loved ones have been detained at the border for reasons either relating to alleged criminal conduct, or for alleged immigration violations.  At other times, I’m asked about what immigration options an individual has who has been here “illegally” but is married to a U.S. Citizen or has a U.S. citizen child.   Most often the questions I’m asked are “how can I get him/her back into the U.S.” and “what relief is available?”  The answers to these questions depend on a variety of circumstances and whether or not the individual deemed “inadmissible” can satisfy the vague and challenging criteria necessary to obtain a “Waiver of Grounds of Inadmissibility.” 

            Known as an I-601 waiver, the waiver application for inadmissibility is filed by an alien when he or she has been denied admission to the U.S.  Different sections of the Immigration and Nationality Act (INA) allow for individuals to apply for and receive waivers of inadmissibility.  The waiver must establish first and foremost that a qualifying relative will suffer “extreme hardship” if the alien is not admitted.  Who is determined to be a qualifying relative will depend on the ground of inadmissibility facing the alien.  An alien applying for a waiver based on unlawful presence or misrepresentation must establish that the denial of his/her admission would result in extreme hardship to the U.S. citizen or lawfully resident spouse or parent of the alien; whereas, a waiver of criminal conduct grounds requires the alien to show extreme hardship to the U.S. citizen or lawfully resident spouse, parent, son or daughter of the alien.  In order to establish “extreme hardship,” the alien must demonstrate that the relative will experience greater than normal hardship should the alien not be allowed admission.  (Simply stating that the qualifying relative will miss the alien’s company is considered “normal” and will not establish extreme hardship.)  It will be necessary to illustrate both why the qualifying relative cannot move abroad and why the qualifying relative cannot simply live in the U.S. without the alien.

            Examples of factors that will support a waiver of inadmissibility could include:  medical condition of the qualifying relative, whether the relative has children or elderly or disabled relatives of his/her own for whom she/he is the primary care-giver, or conditions of the alien’s home country which make it unsafe to live in or impossible to earn a living in.  The more compelling the circumstances present, the more compelling the waiver application will be to the adjudicating officer.  Each individual’s situation is, of course, different.  Individuals who believe they possibly qualify for an I-601 waiver should consult an experienced attorney about their situation, the factors they believe render them qualified for the waiver, and the process involved in applying.  The Immigration Attorneys of Smith & Garg, P.C. can speak with you about this process, as well as other forms of immigration relief for which you could be eligible.  Contact us for more information or to set up a consultation.