Waiver Overview
As long as the requirements of a fiance ( fiancee ) or spousal visa petition are met, the petition will be approved. (An approved petition is simply an approval for the foreign fiance ( fiancee ) or spouse to have the privilege of interviewing for a fiance ( fiancee ) or spousal visa at their consulate). An Application for Waiver of Grounds of Inadmissibility (Form 601) becomes necessary when a visa applicant has been determined to be “inadmissible” based on one more visa ineligibilities.
The most common visa ineligibility is illegal presence/prior visa overstay of more than 180 days, which results in a 3 year ban. More than 365 days of illegal presence results in a 10 year ban. Note that illegal presence under 180 days does not hold a ban and does not require a waiver. Also note that illegal presence under the age of 18 does not “count”.
The ban takes effect when the person leaves the US, therefore the clock starts ticking at that point. An approved waiver overcomes the ban and results in visa issuance. Be aware that some ineligibilities such as falsely claiming US Citizenship result in a lifetime ban and waivers are not available. In the case where the applicant has been determined to be a drug or alcohol addict at the pre-visa interview medical exam, a waiver is not available and a visa is not available for three years. In these cases, the consulate generally has other requirements such as proof of rehabilitation and/or submission of regular drug tests results during the waiting period. In these cases, it’s extremely important that the applicant understands exactly what the consulate requires.
Visa Ineligibilities include: (Complete list here: Classes of Aliens Ineligible to Receive Visas - and here: Abridged Listing of Grounds of Ineligibility under INA
• Have been determined to have a communicable disease
• Have been determined to have a dangerous physical or mental disorder
• Have been determined to be a drug or alcohol abuser
• Have committed serious criminal acts, including crimes involving moral turpitude, drug trafficking, and prostitution
• Are likely to become a public charge
• Have used fraud or other illegal means to enter the United States (misrepresentation)
• Have accumulate illegal presence in the United States of more than 180 days
• Have a two foreign residency requirement (for former exchange visitors).
What happens if the visa applicant is not eligible for a visa due to ineligibility?
At the visa interview, the consular officer determines if the applicant is ineligible for a visa, determines if the law provides for a waiver and determines if the applicant is eligible for a waiver. For this reason, waivers cannot be submitted until the interview has taken place and the applicant has been denied. I-601 waivers filed at a consulate are adjudicated by the CIS 601 adjudicator abroad. If you know in advance that a waiver will be required, in the interest of time it’s best to have the waiver completely prepared and ready to submit immediately after the denial at the visa interview. Consular officers usually provide the waiver form to the applicant along with reason for denial and denial codes written in. Fingerprints need to be taken and the waiver fee needs to be paid. Then a complete waiver package can be submitted.
What does the law require?
The law requires that the “Qualifying US Citizen” (the USC fiance ( fiancee ) or spouse) proves “extreme hardship” to them, the USC, if the fiancé or spouses visa is not ultimately approved and as a result they need to relocate permanently to their fiancé/spouse’s country. (A US citizen fiancé IS a qualifying relative – see 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i)). Extreme hardship" is vaguely defined as “greater than the normal hardship the qualifying relative can be expected to experience if the Alien is denied admission”. At some consulates, it is necessary to prove both why the USC cannot move abroad AND why the USC cannot simply live in the US without the Alien. Most waiver hardship letters chose one point of view. Be sure to clarify with the consulate exactly what they require.
Hardships and Evidence:
The USC needs to write a clear and detailed letter explaining each situation and circumstance that will cause “extreme hardship”. It is not enough to say that the US Citizen will feel sad or miss the fiancé/spouse – this is “normal” hardship. The details provided in the letter as well as the evidence/documentation are the key, vital issues in the waiver process.
The best way to approach the hardship letter and evidence is for the USC to think about every aspect of how their life would change if they had to relocate permanently to their fiancé/spouses country. These arguments form the basis of the hardship letter. Again, each argument must be supported with evidence. Note that some consulates require a letter from the visa applicant in addition to the letter from the USC. Be sure to clarify with the consulate whether or not this is necessary.
Extreme hardship can be demonstrated in many aspects of your life such as:
HEALTH/MEDICAL - Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your fiancé/spouse’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term.
FINANCIAL CONSIDERATIONS - Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents).
EDUCATION - Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.
PERSONAL CONSIDERATIONS - Close relatives in the United States; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
SPECIAL FACTORS - Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
Any other situation that you feel may help you meet the burden of extreme hardship.
Include as much legitimate, detailed evidence as possible. For example, in discussion of medical conditions of the USC, include personal letters from your doctor, nurses, therapists, medical records, prescription information, etc. Always try to include information from US government sources such as Information from the National Institutes of Health
In cases that are not personal issues such as safety in the fiancé/spouse’s country, cite US government sources such as Consular Information Sheets or CIA factsheets
Approach the letter and evidence with the idea that the adjudicator knows nothing about your situation, be it medical, financial, safety, education, employment, etc. and be prepared to explain and prove each and every item.
What happens next?
After the waiver form, fees, fingerprints and hardship letter/evidence have been submitted, the fiancé/spouse may not enter the United States. Waiver adjudication is generally slow, and varies by consulate. Some consulates have an on-line tracking system such as London, while others provide no updates or information until a decision has been made. Once a waiver has been approved, it means the inadmissibility has been “waived” and a visa can now be issued. A date is set up for visa pick-up or delivery (depending on the consulate’s procedure). Once the visa has been received, the fiancé/spouse can legally enter the United States and continue the next steps in the fiancé/spousal visa process (if any).
Other I-601 Waiver and Letter of Hardship Resources
Family Based Immigration Waivers Forum
Immgrate2us.net
Thank you to kitkat for this contribution
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