What Is an I-601 Waiver, and When is it Required?
Some foreign nationals may be deemed inadmissible under INA 212(a), which covers bases including unlawful presence, criminal violations, and immigration fraud or misrepresentation. If a foreign national is considered inadmissible, then he or she must obtain a waiver of inadmissibility if they are seeking lawful permanent resident status. Generally, in order to successfully obtain an I-601 waiver, you must prove “extreme hardship” to a qualifying relative is moved to the applicant’s country, and that the qualifying relative can’t remain in the US without the applicant. These hardships are also weighed against “mitigating and aggravating factors.”
Extreme hardship is vaguely defined as “greater than the normal hardship” that you would expect the relative to have if the applicant is not given a visa. “Normal hardships” such as the separation anxiety, missed income, and difficulty for the qualifying relative to move to the applicant’s home country due to cultural differences, will not be enough to garner an approval on an I-601 waiver. One of the most typical factors supporting an argument of extreme hardship include the qualifying relative’s medical/physical condition which wouldn’t be properly managed if the applicant were away and if the relative had to move to the applicant’s home country. Financial hardship is also a potential factor, but it must be framed so that it is clear that the qualifying relative’s loss is relating to missing basic needs rather than merely missing out on a lifestyle improvement. Depression and compromising mental health is also a potential factor, but generally, if the qualifying relative has no history of depression to show that they are especially sensitive, this would be a weak factor. There are a number of other potential factors relevant to extreme hardship, such as any unusual country conditions in the applicant’s home country making it difficult for the qualifying relative to live in the US, or certain obstacles in life which the qualifying relative can not overcome without the applicant gaining his or her immigrant visa.
Even if extreme hardships are established, if the mitigating and aggravating factors impact whether the I-601 waiver may be denied as a matter of discretion. Mitigating factors include duration of the relationship between the applicant and qualifying relative, whether small children are involved, whether the applicant has applied for the waiver voluntarily, and the degree of the applicant’s culpability. Strong mitigating factors will lower the burden to establish extreme hardship. Aggravating factors include prior criminal record (regardless of basis of inadmissibility), multiple immigration violations, multiple marriages, absconding from deportation, and whether the qualifying relative immigrated to the US as an adult from the same country as the waiver applicant. Aggravating factors will increase the level of hardship that the applicant would have to establish. It is important to highlight the mitigating factors and address the aggravating factors in any I-601 waiver application.