Mobile Mexican Consular Unit
Late June 2015 there will be a Mobile Mexican Consular Unit coming to Bend, Oregon! Here you will be able to obtain passports, consular identification cards and other Consular services that normally require a trip to Portland or other offices. For more information please contact the Latino Community Association.
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.
How Long Does it Take to Process an I-601 Waiver?
Processing times vary depending on the consulate. In general, it takes 4-6 months, but in some cases it may take well over a year to process. For those applying at the USCIS Ciudad Juarez Office (also known as CDJ) under the pilot program for I-601 waivers, the waiver should be adjudicated within a day or two, however if the I-601 is not approved and referred for future and file review and adjudication, the processing time may end up being over a year.
Are there Risks to Entering the Waiver Process?
For those who entered the US without inspection, it is not possible to file the waiver in the US, meaning that the applicant would have to leave the United States, to file. If the odds are not very high for the waiver to be approved, it may be better to simply continue residing in the US without being detected. The individual will have to weigh the problems associated with being undocumented (living in fear of potential detection, inability to get a drivers license, employment exploitation, etc) versus the risks of voluntarily entering the waiver process. Each person's motivations are different, and each person's likelihood of success in obtaining a waiver is different. Anyone considering the I-601 waiver process should make a well informed decision.
What is the Attorney's Role in I-601 Waivers?
In cases where the foreign national is living in the US undetected, the most important first step is to assess whether an I-601 waiver is worth pursuing. A qualified immigration attorney will be able to make a reasonable assessment based on the individual's unique circumstances. The attorney will work with the client to determine which arguments are strongest, and what kind of documentation the client may provide to support eligibility for a waiver of inadmissibility. If necessary, the attorney will perform background research including reports on applicant's home country conditions. The attorney will ensure the quality of documentation, in particular, the affidavit of hardship made by the qualifying relative. The attorney will also draft a brief, if necessary, to organize the arguments and evidence so as to present a clear and convincing case that the application is worthy of approval. The officer who will review the application package will have to make a decision on the waiver in short order; therefore, a well-organized, professionally fashioned waiver application can make the difference between approval and denial.
INA 212(d)(3) Non-immigrant Visa Waiver Lawyers | Non-immgrant Visa Waiver
What is a 212(d)(3) Non-immigrant Visa Waiver?
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 under INA 212(d)(3) if they are seeking admission to the county on a non-immigrant visa, such as a B1/B2 visitor visa. This waiver may be available for grounds that could otherwise not be waived if the applicant was seeking admission on an immigrant visa.
What are the Standards for a 212(d)(3) Waiver?
The standard for a non-immigrant visa waiver is significantly more lenient than the I-601 immigrant visa waiver standard. Based on the case precedent of Matter of Hranka, The Foreign Affair Manual (FAM) has reiterated the standard as follows:
a) You may recommend an INA 212(d)(3)(A) waiver for any non-immigrant whose case meets the criteria of N2 (see 9 FAM 40.301 N2 above) and whose presence would not be harmful to U.S. interests. Eligibility for a waiver is not conditioned on having some qualifying family relationship, or passage of some specified amount of time since the commission of the offense, or any other special statutory threshold requirement. The law does not require that such action be limited to humanitarian or other exceptional cases. While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose such a family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.
b) You should consider the following factors, among others, when deciding whether to recommend a waiver:
1. The recency and seriousness of the activity of condition causing the alien's inadmissibility;
2. The reason for the proposed travel to the United States; and
3. The positive or negative effect, if any, of the planned travel on U.S. public interests.
How do I apply for a Non-immigrant Visa Waiver?
For applicants who already possess a valid visa, or is visa exempt (Canadians), the application is submitted to the Customs and Border Protection (CBP) at the port of entry or mailed to one of the designated pre clearance CBP offices. Usually, non-immigrant visa waiver applicants are seeking a visa at the same time as applying for the waiver. In such cases you file the waiver with the particular visa application with the consulate (if you have intent to immigrate issues under 214(b), then provide as much evidence of ties to your home country as possible, addressing it as a separate issue). No set form is used, you just apply for the visa with, and address all inadmissibility issues as part of the application for the non-immigrant visa. If you get the recommendation for the waiver from the consulate (takes about a month, all at the consular officer's discretion to make a recommendation), it's sent to CBP ARO (Admissibility Review Office) in D.C. (they should make a decision in about 1-4 months). The waiver may be granted for a period of up to 5 years, although first time applicants generally do not get a 5 year waiver. A denial of the waiver can be appealed to the BIA under 8 CFR 1003.1(b)(6).
What is the Attorney's Role in Preparing a Nonimmigrant Visa Waiver?
Although the standard to grant a 212(d)(3) waiver appears lenient, it is important to carefully document and support each criteria. An attorney will ensure that appropriate documentation is submitted, that the quality of the documentation is optimal, and that the eligibility for the waiver is presented in a properly organize manner. Consistency in the documentation is also important since waivers can otherwise be denied for a lack of credibility. Rehabilitative factors are also useful to support a waiver, and an attorney will be able to identify and present them as well.