Overcoming inadmissibility for immigrant visa applications (I-601 and I-601A)

Even with an approved family-based or employment-based immigrant petition (I-130 or I-140), every foreign national must not fall under any of the grounds of inadmissibility to be eligible for an immigrant visa and ultimately a green card.

One common category of inadmissibility that many applicants find themselves facing is the “unlawful presence” bar. The 3-year bar is triggered whenever a foreign national “overstays” their authorized period of stay in the United States for more than 180 days and less than a year; a 10-year bar is triggered when a foreign national overstays for more than 1 year. This means, even if you have an approved family-based or employment-based petition, if you face one of these bars, you would normally be required to stay outside the United States for 3 years or 10 years before being allowed to enter the United States again.  Neither would you be able to adjust status from inside the United States to a green card holder.

To overcome any of the grounds of inadmissibility and qualify for an immigrant visa and ultimately a green card, the avenue of relief is a I-601 or an I-601A, what is commonly termed an “extreme hardship” waiver.

In a nutshell, the government would analyze whether denying the foreign national the opportunity to become a green card holder in the United States would cause “extreme hardship” to a qualifying US Citizen or US Lawful Permanent Resident (LPR) relative, which includes the person’s fiancé, spouse, or parent if seeking to overcome unlawful presence grounds, and also includes the child if seeking to overcome criminal grounds.

“Extreme hardship” focuses on the hardship suffered by the U.S. qualifying relative, and can be tied to both the separation (if the applicant is not allowed to enter the United States) and to relocation of the U.S. qualifying relative to a foreign country. For example, the qualifying relative may not practically be able to move to a foreign country to be united with the applicant, because of difficulties integrating into a particular culture or societal infrastructure, language environment, or incur significant travel or communication difficulties to maintain connection with the applicant if the relative does not relocate. There may be health consequences, including psychological impact, due to either separation from the applicant or separation from other family members living in the United States in case of relocation.

If an applicant is currently outside the United States and applying for an immigrant visa based on an approved immigrant petition, the applicant will likely be filing an I-601 waiver after one’s immigrant visa application is denied by a consular officer.  As of the time of writing, I-601 waivers are directly filed to USCIS to the Phoenix Lockbox, even though the applicant is residing outside the United States while the I-601 is being processed.

I-601A waivers are different in that they are filed from within the United States, provided that the applicant is still residing in the United States at the time of filing. If and when the I-601A is approved, the applicant will be required to leave the United States and attend an interview at a US consulate in the foreign country. It is important to note that the I-601A can only waive the “unlawful presence” ground of inadmissibility.  If the applicant is subject to multiple grounds of inadmissibility or any other ground than unlawful presence, he or she must file an I-601 instead.