Waiver of Inadmissibility for Immigrants (I-601)
When applying to obtain a green card, either through “adjustment of status” or “consular processing” for an immigrant visa (which upon entering the US triggers the production of your green card), one must be “admissible.” If you look at the green card application or the immigrant visa application, you will see countless checkboxes, each of which is used to determine your eligibility (or “admissibility”) for permanent residency.
Lately, we have seen a huge shift in how USCIS is adjudicating marriage-based cases for those who did not enter on a fiancé visa.
Example: Carla entered the US on an F1 student visa. Shortly after arriving, her financial sponsor dropped out and Carla could not afford her tuition. She stopped going to school but needed to survive so she started working “under the table” as a nanny and a waitress; for both jobs she was paid in cash. Ten years later, Carla meets and marries Robert, an active duty marine.
Example: Richard entered the US on a tourist visa. He did not want to return to his native country of Venezuela and decided to stay. Two months later, his friend gave him a job working at his restaurant and he was paid in cash. Five years later, he meets and marries Sandy, a US citizen whom he met at a mutual friend’s party.
Example: Adam entered the US on a J1 visa to work as a lifeguard. Six weeks later, while playing pool with his friends, sparks flew between him and a cocktail waitress at a bar, and the couple started dating. Three years later, the couple got engaged and one year later, married in a civil ceremony in front of family and friends.
Example: John entered the US on an F1 visa. Unfortunately, the school in which he was enrolled lost its accreditation and John was put into removal proceedings and was ultimately ordered removed. However he did not depart the US. Instead, 15 years later John married Mary, a US citizen. Over the next 5 years, the couple had 3 US children together. Each of them earned $100,000 working as financial analysts. They purchased a home together, had several years of joint bank account statements with major transactions, filed joint taxes for five years, had investment accounts with each other’s names, had a family medical plan, were listed as each other’s emergency contact, had joint credit cards for several years and made large purchases using it, financed two cars jointly, and their cell phone statements and text messages showed constant communication.
All of the cases above are loosely based on real clients’ lives. In all four of these cases, USCIS conducted an interview and subsequently determined that at the time of entry, the client was using a visa that did not match the intent and therefore made “misrepresentations to obtain an immigration benefit,” (first two examples), either had “preconceived intent” to immigrate (third example), or, married a US citizen in order to obtain a green card (fourth example). While walking down the hall on the way to the interview room, the officer confided to Attorney Sequeira that he was “trying to get promoted to the international fraud unit” and we believe he was making false accusations against our clients in order to get promoted. In each waiver application, we vehemently denied that our client committed fraud, and were filing the waiver strictly because the officer instructed to do so. We subsequently filed a waiver for each of the above cases, and all of them were approved without a Request for Evidence or subsequent interview.
The takeaway lesson here is that if you did not enter on a fiancé visa, be prepared to be called in for an interview and testify that you did not have preconceived intent to immigrate and used the proper visa for the proper purpose. Have appropriate documentation available to prove the same.
What is Our Law Firm’s Approach to Preparing an Immigrant Waiver Case?
During our initial 10-minute screening call, if a potential caller tells us facts that indicate a waiver is needed, first, we ask for a brief explanation of the facts of the disqualifying criterion. In some instances, our law firm has been able to successfully argue that despite marking “yes,” to one or more of these boxes, our client is still admissible and therefore a waiver is not required. In other instances, we advise our clients that they are inadmissible and a waiver will be required.
Example: Alex was 16 years old when he was brought to the United States with his mother. The border patrol agent does not ask Alex any questions. Years later, Alex marries Annie and tells his mother about how excited they are to prepare his green card application. At that time, Alex’s mother confesses that she presented the passport and tourist visa of Alex’s cousin at the time of inspection. Alex was unaware that the passport that his mother presented was not in his name. On the green card form, it asks if he ever presented “false or misleading information to any government official,” and whether he ever “provided false documentation to any government official.” Alex is concerned that USCIS will determine that he committed fraud when he entered using his cousin’s passport and visa.
Example: Cynthia arrived in the United States on ESTA. After her tourist status expired, she began working without permission for nearly 10 years. After living in the US illegally for 9.5 years, Cynthia finds out her mother has cancer. She departs the United States to care for her mother. After her mother passes away two years after she left the United States, Cynthia obtains a new passport and applies for a tourist visa. On the visa application, so distraught about her mother’s passing, Cynthia neglects to include the information of her first entry on ESTA. Five years after Cynthia arrives in the United States for the second time, she meets and marries Andrew, a US citizen. On the green card form, it asks if she ever presented “false or misleading information to any government official,” and whether she ever “provided false documentation to any government official.” Cynthia is worried that USCIS will determine that she committed fraud by not listing her first entry and overstay, which would have triggered the 10-year bar.
Both of the above factual scenarios were loosely based on real client cases. In both cases, with our initial filing, we argued that our clients did not commit any fraud. Both cases were approved without a waiver of inadmissibility.
If we determine that a waiver is required, then we ask if there is a “qualifying relative” to whom we can prove “extreme hardship.” If there is a qualifying relative, then we prefer to schedule a consultation to determine the strength of the case. If there is no qualifying relative, then sadly, we usually do not schedule a consultation.
Next, we put our client in touch with one of our psychologists. A psychological expert is an “expert of the mind,” and is the only one allowed to provide expert opinions on the mental state of our client. But so many of them have jumped into immigration law reports because it is a “money maker.” We closely vet all those experts who send us emails advertising their services by asking two simple questions: 1) have you won an Adam Walsh Act case; and 2) are you willing to testify in court. The first question is asked because AWA cases are one of the toughest to win. The second question is asked because the expert should feel comfortable testifying before a judge and being cross-examined by the government attorney about the contents of their report. We are happy to say that our expert met both of these requirements and we have worked with one psychological expert for years; she is partially responsible for helping us win all of our waiver cases. We once asked our expert, “can you make a waiver case for every client?” And she replied, “yes!” This is because each and every person has gone through something that can be used to build a waiver case. Just recently, we added a second psychological expert (recommended by a colleague) to give our clients options in terms of turnaround time and cost.
While the psychologist is working with our client on the report, we provide the client with a checklist of times to help us prove “extreme hardship” to the qualifying relative. These items cover financial hardship, medical hardship, psychological hardship, emotional hardship, and any other considerations. Let us begin by saying that we never get those “slam dunk” cases where the qualifying relative is dying or severely disabled. Instead, many of our waiver cases involve unseen hardship, such as emotional or psychological hardship. So do not be disheartened if you do not have a straightforward waiver case.
Our law firm then conducts extensive research to pull together evidence of country conditions which could result in hardship to the qualifying relative. But it’s not as simple as downloading articles and including them in our filing. USCIS spends a lot of time reading this evidence and it can be used against you if not done properly.
The last, and most important component, are the two affidavits written by the qualifying relative and the applicant; they form the foundation of our waiver case. Only our owner, Attorney Sequeira, works on the waivers. And believe us when we tell you that the way Attorney Sequeira edits the affidavits is unparalleled; it is because she is so passionate about your case, and has been through a lot of different experiences in her own life, that she is able to empathize and put herself in your (proverbial) shoes.
We honestly believe that these affidavits are the “secret sauce” to winning our waiver cases and we have never seen ANY other law firm even come close to the quality of our affidavits. Each one is crafted from scratch. The client is provided a sample from a winning waiver case to show the amount of detail that is needed, then that initial draft goes through multiple rounds of editing between the Attorney Sequeira and the client.
Our clients are always amazed with the final version of the affidavits and wonder how Attorney Sequeira is able to feel what the client feels. All we can say is that this ability is her gift.
When Do I Apply for a Waiver?
If adjusting status, our law firm usually submits a waiver application concurrently with the adjustment of status application, except in rare circumstances.
If consular processing for an immigrant visa, the process is a little different. A consular processing applicant must first be found as “inadmissible,” which means that s/he must attend the consular interview and be denied. The consular officer will issue a “refusal” notice which indicates the ground(s) of inadmissibility and whether you are eligible to apply for a waiver. You must then submit your waiver package to USCIS. If USCIS approves your case, USCIS will notify the consulate and inform them of which inadmissibility criteria have been waived. Once this happens, the consulate will contact you regarding issuance of the visa. If many years have passed since the visa denial, the consulate will most likely either request additional documents, or, will schedule an interview to make sure you are still eligible to receive the visa.
It is VERY important to maintain regular contact with the consulate to make sure that while your waiver is pending with USCIS, that your case remains open with the consulate; if the consulate does not year from you once per year, your relative petition approval can be revoked!
If you think that you might need a waiver, please send us an email. We would love to help you.
