I-601 Hardship Waiver – Part 1

Ame Coats: Hello everyone.  I’m Ame Coats.  I’m an immigration attorney with Bashyam Global .  And I’m here with our managing partner Murali Bashyam.  Bashyam Global is a full service immigration law firm located in Raleigh, North Carolina.  We represent clients in all 50 states and around the world.  Today, we’re going to talk about I-601 waivers.  So as far as the first section of our presentation goes today, we are going to be discussing some of the data diagnostics of the waiver, how it’s adjudicated, and then we’re going to talk about some of the examples that our law firm has seen.

When someone is trying to get U.S. lawful permanent resident status, there is a long list of reasons that can prevent them from getting it.  These are called ‘grounds of inadmissibility’, meaning that the person who wants to become a permanent resident, is inadmissible to the United States.  Some of these, there’s nothing that can be done.  But others, there is an application that you can file to try to waive that ground of inadmissibility.  That application is an I-601 application.

I’m going to talk to you about the most common types of grounds of inadmissibility that we see here in our practice.  The first one is the three and ten-year Unlawful Presence Bar.  So what this means is when someone comes in and enters the country staying as a visitor, and they overstay their immigration status for a certain amount of time, if they depart the United States and then reenter the country, they could trigger a three or ten-year bar.

The three and ten-year bar is something really – I find this very difficult to explain to folks.  And my explanation and my definition is not going to cover every single circumstance.  So the first thing that I want to say about grounds of inadmissibility is that’s not what our presentation is about today.  So if you believe that you’re inadmissible, it is crucial that you get good concrete legal advice from someone.

Murali Bashyam: But just real quick, Ame, I mean just give one or two examples of how someone could be subject to a three or ten-year bar.

Ame Coats: Sure.  Okay, let’s say that you enter the United States as a visitor and you’re given six months and then you overstay by a year, if you were to leave the country, the minute that you step foot out of the United States, you have triggered a ten-year bar to reentering the country.  And so that’s one of the most common things that happens.

What I see here is a lot of folks who enter as a visitor will come in, they’ll overstay, eventually marry a U.S. citizen, file an application for a green card, and lo and behold, the immigration services sends them an Advanced Parole Travel document.  What they don’t realize about that travel document is that the minute they use it and go back home, they will have triggered a ten-year bar.  What they don’t understand is that the immigration service doesn’t adjudicate whether or not they’re qualified; they just send it back.

As far as criminal grounds goes, if you are convicted of a crime of moral turpitude and you’re inadmissible to the United States, the are some exceptions, but in general, that will prompt grounds of inadmissibility.  As far as fraud misrepresentation goes, occasionally, I’ll see someone who’s committed fraud on their visa application to get to the United States, or has former misrepresentation in some other way to get an immigration benefit.

Murali Bashyam: So the point is if you think you are subject to any of these things, definitely speak with an immigration attorney first.

Ame Coats: Absolutely.

Murali Bashyam: There is some confusion probably about how an I-601 is filed and adjudicated.  So there’s really two – well, possibly three options; the legal proceedings we’re not going to discuss right now.  But one way you can file an I-601 application is if you had applied for a green card here in the United States, which is called ‘adjustment of status’.  That’s when you have your green card interview here in the U.S., and you are told that you are inadmissible and that you have to submit an I-601 here in the United States.

The other option is if you are out of the United States; you’re in another country, you’re at the U.S. Embassy and you’re applying for an immigrant visa to enter into the United States as a permanent resident, and then at the embassy, you’re told that you’re inadmissible.  At that point, you would submit an I-601 waiver application.  But there’s a big difference.  If you’re outside of the United States and you submit the application at the embassy, actually, the people at the embassy are not the ones who are adjudicating the case.  It’s then sent to an immigration office, and the immigration office has jurisdiction over that embassy, and they make a decision.

Murali Bashyam: And, Ame, doing the -I601 process at a consulate overseas, if the parties are here in the United States first, that carries quite a bit of risk, right?

Ame Coats: Absolutely.  So the common situation that we see is someone who is in the United States, the only way they can get a green card is if they leave the country and process in their home country and embassy.  But there’s a lot of risk because if it doesn’t work and the case is denied, they can’t come back to the U.S.

Murali Bashyam: You’ve got some examples, I believe, that you want to share with the audience.

Ame Coats: Yes, we do.  So the first example is Paul and Belkis, these are clients of ours who’ve actually – they’ve just filmed their video testimony.  With the situation in this case, Belkis is from Honduras.  And when she was a kid, her mother really wanted her to come to the U.S., and made all the arrangements, but Belkis entered the country illegally.  So Belkis was here illegally; she then turned 18 and she began accumulating what’s called  ‘unlawful record’.

So after being here – after her 19th birthday and she had a year of unlawful presence, then if she were to leave the United States, she would trigger a ten-year bar to reentry.  So we met Paul and Belkis because they came to the office – they’re married, and Paul wanted to get a green card for his wife, of course.  The problem is because she didn’t enter the country legally, there was no way we could file the paperwork here in the United States and give her green card here.

It was a huge risk.  And Paul and Belkis talked about this many times.  They had many meetings with an attorney before they ultimately made the decision just for her to go back and do the process in her home country.  I want to emphasize, we do not encourage people to do this unless they have a slam-dunk case.

Murali Bashyam: And, Ame, not only that they have a slam-dunk case, they have to be willing to take the risk because even if they have a slam-dunk case according to us or other folks; ultimately, there is risk involved, you just never know what’s going to happen at the consulate.

Ame Coats: Right.  And I rarely see slam-dunk cases.  It’s usually something more in the middle, which definitely the couple is going to undertake a lot of risk.  We also represented Richard and Winnie.  The situation in this case was that when Winnie first came to the United States, this is way before she ever even had met Richard, who’s the U.S. citizen, when she filled out her visa application to come to the United States, she checked off that she was married even though she wasn’t.

And the reason she did this was because people had told her in her country that if she said that she was married, she’d have an easier time getting a visa.  So she committed fraud when she applied for her visitor visa.  After she came to the United States, she decided that she wasn’t going to return to her home country.  So she was here on an invalid visa for a number of years, met Richard, and then they got married.

They filed their green card case on their own.  And when Winnie got her travel document, Winnie left the United States and went back home to see her family, little did she know that she had triggered the ten-year bar.  So when her green card interview rolled around, the immigration service found that she had triggered the ten-year bar and she had committed fraud when she got her visa.  So we had to file a I-601 waiver, which was successful.

Then the last example, Sarah and Bao.  Bao borrowed a friend’s green card and social security card to get a job.  The friend entered into the situation willingly, but, ultimately, his employer discovered it, reported him to the police, and he was charged with identity theft.  And even though he wasn’t convicted in the way that we think of conviction, he admitted he was guilty and went through a deferred prosecution agreement and was considered convicted for immigration purposes.  So we had to file a waiver for his case, as well, and, ultimately, that case was also approved.

Murali Bashyam: We want to thank everybody attending this webinar.  We hope you found it helpful.  If you have any other questions related to this topic or any other immigration topic, please feel free to e-mail Ame at [email protected], or myself, murali@bashyamspiro.  And we thank you for attending this webinar.

Ame Coats: Thank you for joining us.

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