In Berkeleyme Consultants’s experience the most commonly applicable and most commonly relied upon grounds for pursuing a successful I-601 waiver are: Extreme Hardship and 15-Year Statute of Limitations.
What is “Extreme Hardship” and how do I establish it?
Despite being the most common ground for IV waiver, extreme hardship is not easy to satisfy and as such often requires an in depth analysis of an individual and their family’s personal circumstances. In order to be eligible, an individual must meet the following criteria:
1. Has a qualifying relative (“QR”) – that is to say the individual is a spouse, parent, son or daughter of a US citizen (“USC”) or lawful permanent resident (“LPR”)in respect of criminal grounds but the narrowed criterion of spouse or parent in respect of prior violations and/or fraud and willful misrepresentation; and
2. Such QR must suffer extreme hardship if the individual was denied a visa; and
3. On balance, a positive exercise of discretion is necessitated.
Establishing extreme hardship is not measured by objective characteristics and therefore requires persuasive and compassionate advocacy on how the QR will suffer – factors include:
- Financial considerations
- Personal circumstances
- Special factors (e.g. cultural or race; valid fears of persecution; social ostracism)
Granting a waiver of inadmissibility is a discretionary exercise and in addition to considering extreme hardship, the adjudicator weighs the favorable with unfavorable factors submitted by an applicant.
Positive factors include:
- Individual has US citizen children in common with the qualifying spouse
- Relationship/marriage with USC/LPR is of considerable length
- Lack of criminal record or rehabilitation
- A showing of exemplary character including evidence of work in the community, voluntary work or the like
- The provision of sworn evidence as to good moral character
Negative factors include:
- Individual has been previously married to a different USC/LPR
- QR spouse has been formerly married to a foreign individual
- Allegations of marriage fraud against either
- Criminal record with especially heinous crimes
- QR has limited ties to the US
What is the 15-Year Statute of Limitations?
If you are inadmissible under a criminal ground as outlined above, you may be eligible for a waiver based on the 15-Year Statute of Limitations, which is both easier to establish and more objective in nature.
Applicants must satisfy the following criteria:
- Presents no risk to national security;
- Is rehabilitated; and
- The grounds of inadmissibility occurred over 15 years ago.
N.B. With respect to controlled substance offenses, waivers are only available if the violation relates to a single offense of simple possession of 30 grams or less of marijuana.