What to Expect During the I-601 Extreme Hardship Waiver Process

Are you barred from entering the United States?

You may require an extreme hardship waiver to overcome an inadmissibility. If you are a green card applicant, but are inadmissible from entering the United States, you may be able to still enter with a waiver. There are all sorts of waivers. It depends on the particular inadmissibility. The I-601 Extreme Hardship waiver is the type of waiver that applies in criminal and immigration violation inadmissibilities. You can apply for a waiver of the inadmissibility based on the extreme hardships that a qualifying U.S. relative will face if you are denied entry into the United States. If you want to learn more, back track to my previous blog post on waivers.

The Extreme Hardship Waiver Process

You won’t be able to apply for the waiver until you’ve been found inadmissible by an immigration or consular officer. Usually the officer will confirm or inform you of your inadmissibility at the adjustment of status interview or at the embassy interview. The officer will tell you whether or not you are eligible for a waiver. Then the officer will provide you instructions on how to apply for the waiver. If the officer needs more information to make a determination about your inadmissibility and your eligibility for a waiver, the officer may request more information from you regarding the issue at hand and then send an answer to you at a later date. It is important to be honest, and straightforward at the interview. The best way to avoid mistakes at the interview is the have an attorney on your matter as soon as possible. The attorney can inform you before the interview whether you will need a waiver. He or she can start preparing the waiver by gathering evidence and prepare you for the interview. In some cases the attorney can advocate on your behalf to help guide the officer’s determination of inadmissibility based on the correct law that applies in your case. It is important to take all the relevant documents with you. For example, if you have a criminal history, be honest about it. Take your certified court records showing the conviction and the certified arrest record or police report. One thing you need to keep in mind is, an expungement does not excuse you from disclosing your arrest and/or conviction. If you answer No to a conviction because of expungement, you can end up in deeper immigration problems. For instance you could be slapped with a material representation charge by the consular or immigration officer.

At the Interview

If the officer informed you that you are not eligible for a waiver, get a second opinion from an attorney. If the officer informs you that you are eligible for a waiver, it is very important that you begin working on the waiver right away. The I-601 waiver must be filed at a designated USCIS service center. It is important to include all the evidence of the extreme hardship to your qualifying U.S. relative (not to you as the applicant). The I-601 extreme hardship waiver requires completion and signing of the USCIS I-601 form plus evidence. You may find the form and I-601 instructions at www.uscis.gov.

The embassy will usually get notice from the USCIS office of the I-601 hardship waiver filing. However, I make it a habit to inform the embassy as well. The embassy will place the case on hold until a decision comes back on the extreme hardship waiver application.

What to Expect After Filing

After proper filing of the I-601 extreme hardship waiver, you’ll get an I-797C Notice of Acceptance. Then its a waiting game. The waiver application takes in excess of a year to process. If the officer adjudicating the matter needs more evidence, you will get a notice by mail requesting more evidence, called an RFE. If you receive an RFE, it is important to adhere to the time given to you to respond. If you send your response to the RFE later than the deadline in the RFE, they may disregard the response and make a decision based on the other evidence. Sometimes an RFE provides you insight into the reasoning of the officer. Sometimes that request is the thin line between the officer’s intention to deny or approve the waiver. Therefore, accurate and timely response to the request is crucial at this point. So if you don’t have an attorney at this point in the process, get one on your case at the RFE level.

If the officer is satisfied with the presented evidence, the officer will either grant or deny the waiver. You’ll get the decision by mail. The USCIS will also send notice of the decision to the consular office. If denied, there is the possibility of an appeal.

If the Waiver is Approved

If the waiver is approved, then the USCIS will send you and the embassy. The embassy will proceed with completing your application for the immigrant visa. If more than 1 year has passed, you may be required to submit a new police certificate and medical examination. You’ll likely have to attend the interview again. Unless something else arises, or new facts come to light, the second interview at the embassy should be shorter and smoother than the first. The officer will take your passport to process the approved immigrant visa. You will get the passport, sealed envelop returned to you by courier. You should be good to go and ready for travel to the U.S. after you get the returned passport.

NOTE: As always this is for informational purposes only and is not legal advice. Consult an attorney for advice regarding your particular circumstances.

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