Filing an I-601 Waiver request after a Green Card application is denied

Most of the time, when US-CIS denies a Green Card application, the case involves a foreigner who has married an American citizen and then applies for Permanent Residence. CIS is automatically suspicious of such cases and they look for any indication that the marriage was for immigration purposes.

When CIS investigates one of these marriage cases, they are looking for something about the alien that would make him or her “inadmissible”. If an alien is inadmissible, he cannot obtain permanent residence. Usually CIS finds that they are inadmissible because of a prior criminal conviction or a prior immigration violation, such as misrepresentation, when entering the US. Misrepresentation occurs whenever a person intentionally presents false information in order to obtain a visa to the US. In some cases, a waiver can be requested by filing an I-601 form.

Or, CIS may find that the alien is guilty of unlawful presence. This is when a person enters the country unlawfully or when a person’s lawful status lapses. If the person is unlawfully present more than six months and then leaves the US, there would be a 3 year bar to re-entry. I-601 waivers are available for this re-entry bar.

In all Waiver requests it is necessary to show how there would be extreme hardship for the petitioner if the alien spouse or fiancée did not get the waiver and had to return to Vietnam. “Extreme hardship” has no exact definition. CIS just says they require evidence of hardship that is greater than normal hardship.

Proving extreme hardship is not easy and it includes two elements: it is important to prove why the American citizen spouse cannot move abroad with the alien AND why the he cannot just continue to live in the US without the alien.

The most successful claims of extreme hardship are related to health issues, such as:

Petitioner needs medical treatment that is not available in Vietnam and the petitioner absolutely needs the Alien in the US to help take care of him.

Or, the petitioner is caring for a relative who needs constant care and whose condition is bad enough that the petitioner MUST live with the relative. This makes the petitioner unable to move abroad and makes him really need the Alien in the US to help care for the relative and manage other responsibilities.

Or, the petitioner has a MAJOR medical condition which makes him unable to move abroad and for which he absolutely needs the Alien spouse to remain in the US to help take care of him.

Other claims of hardship: The petitioner is the primary caregiver for his children from a prior relationship and the children's other parent will not allow the children to be taken out of the country AND the children have formed an emotional attachment to Alien.

Petitioner and children cannot speak Vietnamese, are unfamiliar with the culture, have never had the chance to culturally integrate themselves in any Vietnamese community in the US.

Vietnam has bad public health conditions and bad public education. This would require treatment at expensive private clinics and the payment of very high fees for the children’s educational in international schools.

The petitioner’s job in the US could not be performed in Vietnam, or petitioner could not earn enough in VN to support needy relatives in US or to put child through college in the US or keep up mortgage payments on US house.

Waiver requests must be supported by documentation. It is not enough to say that there are medical or financial reasons involved. These claims must have official documentation to support them. 

We heard about one couple who found it impossible to convince CIS about the hardship element and just gave up hope of having their case approved. They finally decided to go back to live in Vietnam. But this is never the best solution to the problem. It is always preferable to remain in the US to follow through with the appeal process with CIS. It is never advisable to return to Vietnam to solve this matter.

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Q. 1. Wasn't there a time when aliens who entered illegally could pay CIS a penalty fee to have their green card application approved, instead of requesting a Waiver?
A.1. That was with the 245(i) rule. It allowed immediate relatives of US citizens to adjust to permanent residents even if they had entered the country illegally. This rule is no longer in effect. 

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Q.2. I am a foreign student on a J-1 visa who married a US citizen. My wife will give birth to our child soon. Wouldn't the marriage and our child allow me to stay in the US without fulfilling my 2 year foreign residence requirement?
A.2. You would have to prove to CIS that it would be an extreme hardship for you and your wife and child if you returned to Vietnam for two years. CIS rarely agrees that it is a hardship because you knew well about the 2 year home stay requirement even before you arrived in America.

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Q.3. What are the main types of criminal activity that would require an I-601 Waiver request?
A.3. Some of the main types of criminal activity that require a Waiver are Fraud, burglary, bribery, tax evasion, drug offenses, prostitution, drug trafficking, and gang membership.


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