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Extreme Hardship and the 601 Waiver: Can I Avoid Deportation?

If you are an immigrant who has been living illegally in the United States for more than one year, you may still become a legal resident. However, it will require leaving the country and serving a 10-year reentry ban.

Individuals claiming extreme hardship from deportation or barred reentry may apply for a "601 waiver." If granted, this will allow them to avoid the 10-year banishment rule. This process requires a waiver application, the admissibility of which will be reviewed. An appearance in an immigration court is required as well.

U.S. Citizenship and Immigration Services (USCIS) bases its decision on the needs of the individual's immediate family members. Extreme hardship considerations are meant to prevent family separation.

Although obtaining a waiver of grounds of inadmissibility will help defer deportation while you adjust your immigration status, this does not guarantee that you can obtain permanent legal residence.

It's important that people from foreign countries know their rights while they are in the United States. Continue reading to learn more.

Waiver of Grounds of Inadmissibility

Immigrants can be considered inadmissible for many reasons, such as lacking legal status or having been in the U.S. for more than one year. Anyone who is inadmissible can face the following consequences:

  • They cannot adjust their immigration status, obtain a visa, or enter the country
  • They may be deported if they cross the border

However, there are exceptions to this rule.

A foreign national denied admission into the U.S. may file a 601 waiver. It is set aside for cases in which the deportation or barred re-entry of that individual would cause "extreme hardship" to a "qualifying relative." Determining one's qualification for a waiver requires an understanding of how the USCIS defines these terms.

A qualifying relative for cases involving unlawful presence would include a citizen or legal resident child, spouse, or parent, according to U.S. immigration law.

The common effects of deportation are considered "typical" hardships, even if those outcomes cause grief for the immigrant's family members. Typical hardships may include:

  • Loss of employment
  • Uprooting of family
  • Separation of parents from small children

A hardship is considered "extreme" only if it's unusual or beyond what one normally would expect from a deportation or barred re-entry.

While an application is pending,  a provisional unlawful presence waiver will be issued. Other qualifying family members will also be given this type of provisional waiver.

Extreme Hardship Waiver Eligibility

Eligibility is not clearly defined by statute, but the USCIS categorizes four levels of arguments that might qualify an individual for a 601 waiver, with Level 1 being the strongest and Level 4 being the weakest.

Generally, USCIS officials are looking for at least one Level 1 argument or several lower-level arguments in order to grant a waiver. The following are examples of each level:

Level 1: A relative has a major medical issue and cannot safely travel abroad, making it necessary for you to remain in the U.S. to care for the relative. Or, your country is in a state of active war.

Level 2: A relative has a serious medical condition that makes moving abroad very difficult, and they need your help. Or, your country is on the verge of a major political upheaval. Another example of this is when a person is undergoing medical care and cannot travel. Serious health conditions are often grounds for a waiver.

Level 3: A relative has a significant condition making it difficult to move out of the country. Or, your home country has an extremely poor economy.

Level 4: A relative would not be able to pay debts by moving abroad. Or, you need to remain in the country to care for aging parents.

Falling into one or more of these categories can work in your favor in your waiver case.

Those who believe they qualify for a waiver must file an Application for Waiver of Grounds of Inadmissibility and pay the filing fee.

Waiver for Criminal Grounds or Immigration Fraud

An I-601 waiver can also be used for inadmissibility based on criminal grounds, such as:

  • A crime involving moral turpitude
  • A controlled substance violation comparable to a single offense of simple possession of 30 grams or less of marijuana
  • Two or more convictions, other than purely political ones, for which the sentences totaled five years or more
  • Prostitution or other unlawful commercialized vice
  • Certain aliens involved in serious criminal activity who have asserted immunity from prosecution

Immigration fraud may also be forgiven through a 601 waiver as long as the fraud was not classified as a "marriage fraud." Such misrepresentation is a complicated issue, and you'll likely need the assistance of an attorney to resolve any negative consequences related to it.

To qualify for this waiver, the applicant must either:

  • be a qualifying U.S. citizen or a relative of a lawful permanent resident, or   
  • be vulnerable to experiencing extreme hardship if denied admission.

In addition, victims of domestic abuse may still qualify for a waiver on this ground.

Without a 601 waiver, removal proceedings will continue going forward. You could still be sent back to your home country.

Other Forms of Relief from Deportation

Besides the waiver, there are other forms of relief from deportation that may benefit individuals with dependent children:

Victims of Domestic Abuse: The Violence Against Women Act grants legal permanent residency to victims of domestic violence who cooperate with police to help prosecute their abuser. See "Violence Against Women Act: Visas for Battered Spouses" for more details.

Certain Individuals Brought to the U.S. as Children: Deferred Action for Childhood Arrivals (DACA) is a policy allowing qualified individuals who were brought to the U.S. as children to avoid deportation and obtain temporary work authorization. See "What is Deferred Action for Childhood Arrivals?" for more information.

To learn more about obtaining relief from deportation, see "Avoiding Removal" and other Deportation articles on FindLaw.

Grounds for Deportation

Someone can be deported for a variety of reasons, many of which are criminal in nature. Crimes of moral turpitude often result in deportation. Such crimes come in a variety of forms, but they are also those that are considered morally reprehensible. Examples of such crimes include:

  • Alien smuggling
  • Drug trafficking
  • Domestic violence

These crimes can lead to:

  • Revocation of your immigrant visa, green card, or any other status you may have in the United States
  • Suspension of your temporary protected status (TPS)
  • Termination of your visa application or adjustment of status

However, with a 601 Waiver, you can eventually re-enter the country. Always remember that it's important not to lie in your visa interview. This can lead to deportation if it is ever discovered, even after your visa has been issued and adjudication is complete. Lying to USCIS officers is treated very seriously. Assessments during the visa application process are very important, and honesty during these processes is a complete necessity.

 

Questions About Extreme Hardship and the 601 Waiver? Contact an Attorney

Although limited, an extreme hardship can be a way to avoid deportation. To submit this claim, it's necessary to file a 601 waiver. If you believe your deportation would cause extreme hardship for a qualifying relative, it's a good idea to contact a local immigration attorney. They can help you file the necessary paperwork and evidence for a 601 waiver.

Noncitizens should know about the benefits provided under the Immigration and National Act (INA). While they should also know about the consequences of immigration violations, these topics can be very complicated. If you're struggling with any immigration-related issue, it's best to contact an attorney.

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