I-601, Application for Waiver of Grounds of Inadmissibility HELP!

[jpidgley 9]

hey everyone!

here we go.

Two days ago i was fully expecting to be flying out to be with my fiancee in a few weeks (my interview is in 1 week), but then yesterday i found out about the Immigration and Nationality Act. This act states that if you have been sentenced to any more than 5 years aggregated years then you cannot be given a visa.

26 years ago my Dad was given an aggregate of 6 years 9 months (for theft, burglary, and robbery, and would never have done more than 4 years because it was an aggregate sentence). He was released for good behaviour way before he got close the the 4 years. Since then has not had so much as a parking ticket, and for the last 20 years he has been a Christian Minister.

ok so first:

1. Can he actually apply for the I-601?? (to attend my wedding)

2. How long roughly does this take (i understand its every case on its merits, but any answer will be appreciated)

Thanks,

Josh.

Edited March 27, 2011 by jpidgley

[frabra 3]

I think that you have to be a LPR to testify for your dad.. i think but i'm not sure, if you go to the uscis website and read the instruction of the form I-601 you will understand if your dad is eligible.

hope it helps a little bit.

http://www.uscis.gov/files/form/i-601instr.pdf

[frabra 3]

I think that you have to be a LPR to testify for your dad.. i think but i'm not sure, if you go to the uscis website and read the instruction of the form I-601 you will understand if your dad is eligible.

hope it helps a little bit.

http://www.uscis.gov/files/form/i-601instr.pdf

or if your dad have other relative in the STATES that are LPR OR US citizen.

every case is different just keep this in mind.

I think that you have to be a LPR to testify for your dad.. i think but i'm not sure, if you go to the uscis website and read the instruction of the form I-601 you will understand if your dad is eligible.

hope it helps a little bit.

http://www.uscis.gov/files/form/i-601instr.pdf

or if your dad have other relative in the STATES that are LPR OR US citizen.

every case is different just keep this in mind.

[jpidgley 9]

So it says "Non-immigrant status visa holder filing for adjustment of status..." so because he doesn't have a non-immigrant visa, and he just wants to use a tourist visa to visit for a wedding, he can't appeal, and can't come??

have i read that right?

[frabra 3]

So it says "Non-immigrant status visa holder filing for adjustment of status..." so because he doesn't have a non-immigrant visa, and he just wants to use a tourist visa to visit for a wedding, he can't appeal, and can't come??

have i read that right?

ok so this is what i'm doing with my dad,he is a LPR with removal proceedings he's in the States i'm going ( I HOPE SOON), to get my conditional green card cause i get married with a US citizen as soon as i get the green card my dad can apply for the WAIVER, now i don't know your dad situation here in the states if he was deported or other issue. the only advice i can give to you is to talk with an attorney as soon as you arrive in USA.

Good luck with your visa interview i think this have to be your first tought in this moment get the visa and then try to bring your dad to attend at your wedding.

i'm not an attorney so i don't really kno what is the best way to bring your dad here ,the best of luck to you and your future family!

[Sergi9 110]

hey everyone!

here we go.

Two days ago i was fully expecting to be flying out to be with my fiancee in a few weeks (my interview is in 1 week), but then yesterday i found out about the Immigration and Nationality Act. This act states that if you have been sentenced to any more than 5 years aggregated years then you cannot be given a visa.

26 years ago my Dad was given an aggregate of 6 years 9 months (for theft, burglary, and robbery, and would never have done more than 4 years because it was an aggregate sentence). He was released for good behaviour way before he got close the the 4 years. Since then has not had so much as a parking ticket, and for the last 20 years he has been a Christian Minister.

ok so first:

1. Can he actually apply for the I-601?? (to attend my wedding)

2. How long roughly does this take (i understand its every case on its merits, but any answer will be appreciated)

Thanks,

Josh.

If I am understanding this right your dad is not in the US but wants to come here for a wedding? If so and he has no intention of immigrating the I601 is not the correct application. He files a B2 VISA and requests a waiver under 212(D)3. They are not as long a process as the I601 from what has been posted on this board in the recent past. I am sure that depends on which consulate you are dealing with as well. Good luck.

The INA 212(d)(3) Nonimmigrant Waiver – Available To All?

by Christina B. LaBrie, Esq.

Section 212(d)(3) of the Immigration and Nationality Act ("the Act") is a broad waiver provision that allows applicants for admission as nonimmigrants to overcome almost any ground of inadmissibility found in Section 212(a) of the Act. The only inadmissibility grounds that can not be overcome by the 212(d)(3) waiver relate to foreign policy considerations and participation in Nazi persecutions.

The Section 212(d)(3) waiver is thus available to the vast majority of inadmissible individuals. The 212(d)(3) waiver must be anchored to a nonimmigrant visa, such as a tourist, student, H-1B or L visa. For example, an individual who has been deported from the United States because of a criminal conviction but has since returned to his or her home country and now has an offer of professional employment from a US company can petition for an H1B visa.

Of course, it is within the discretion of the Attorney General to grant or deny the waiver. However, this waiver is important because it includes few statutory grounds of ineligibility. It could be used to obtain admission on a nonimmigrant visa for an applicant who had previously been deported from the United States or who had been found to have committed fraud, for example.

The Board of Immigration Appeals has set forth criteria to be evaluated by the Attorney General in making a discretionary determination under Section 212(d)(3). In Matter of Hranka, 16 I&N Dec. 491(BIA 1978), the BIA listed three criteria for determining whether to approve or deny a Section 212(d)(3) waiver:

1. The risk of harm to society if the applicant is admitted;

2. The seriousness of the applicant's prior immigration law, or criminal law, violations, if any; and

3. The reasons for wishing to enter the US.

The BIA did not elaborate on these basic factors in its decision. However, it did make clear that the reasons for wishing to enter the US need not be "compelling." This sentiment is reflected in the Foreign Affairs Manual at 9 FAM Section 40.301:

"The law does not require that such waiver action be limited to exceptional, humanitarian or national interest cases. Thus, while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether available abroad), business conferences, tourism, etc."

In Hranka, the BIA did not include rehabilitation as a criterion, but clearly based its decision in part on the rehabilitation of the applicant. Therefore, for applicants with criminal records, evidence of rehabilitation would certainly improve a 212(d)(3) waiver application.

The procedure for filing a 212(d)(3) waiver application is set out in 8 C.F.R. 212.4. The regulations provide two different procedures: for filing under Section 212(d)(3)(A)(for those nationalities requiring a visa) and under Section 212(d)(3)(B)(for certain visa exempt applicants).

The 212(d)(3) waiver is available to inadmissible individuals that do not have an immigrant waiver available. For example, an alien who has been convicted of a crime involving moral turpitude within the last 15 years and who has no qualifying US citizen relative for a 212(h) waiver might still be able to enter the United States on a nonimmigrant visa with a 212(d)(3) waiver. Alternatively, if an alien has a qualifying relative but is not able to show sufficient hardship for a 212(h) waiver, he or she could maintain status as a nonimmigrant and wait for the 15 years to pass so that the 212(h) immigrant waiver would be available again.

Unlike most provisions of the Act, the 212(d)(3) waiver contains no bar for those convicted of aggravated felonies. Clearly, an individual convicted of an aggravated felony would have a difficult burden in satisfying the Hranka criteria. But for many people with no other options, it is certainly worth a try.

For individuals who have been deported from the US, an I-212 application for permission to reapply for admission to the US is required within five years of deportation (or 20 years in the case of an aggravated felon). The regulations governing I-212 applications are found at 8 C.F.R. 212.2. An individual who has been deported and who is subject to a ground of inadmissibility would need to apply for permission to reapply (the I-212) and for a 212(d)(3) waiver.

It should be noted that 8 C.F.R. 212.2 specifically states the following: "A temporary stay in the United States under section 212(d)(3) of the Act does not interrupt the five or twenty consecutive year absence requirement." As a result, one could conceivably spend the entire absence requirement in the United States in nonimmigrant status.

The benefit of the 212(d)(3) waiver lies in the broad range of eligible applicants. However, these waivers are not always easy to obtain, particularly in the case of individuals with criminal convictions. In addition, the applicant must be eligible for a nonimmigrant visa. For inadmissible individuals with no other way to return to the United States, the 212(d)(3) waiver might provide a temporary solution to what can be a very difficult and lengthy time separated from family, friends or business matters.

Edited March 27, 2011 by Sergi9

[jpidgley 9]

@Sergi9 Thanks! will look into this now.

[jpidgley 9]

ok so i've been looking.... and im confused

is it form I-212?? does he need to apply for a B2 first knowing he will denied then file form I-212, or does he just send the I-212 from the start?

[Rebecca Jo 1,962]

ok so i've been looking.... and im confused

is it form I-212?? does he need to apply for a B2 first knowing he will denied then file form I-212, or does he just send the I-212 from the start?

No 212 needed till the visa is denied.

First he files all his forms with the Embassy and waits for an interview date (like you did). At the interview he will likely be denied. If he has the prepared waiver with him on that date, he can file it immediately.

Edited March 27, 2011 by Rebecca Jo

[jpidgley 9]

ok and is it definitely the 212? cuz that one seems like its for people who have been "kicked out" for whatever reason...

[Rebecca Jo 1,962]

ok and is it definitely the 212? cuz that one seems like its for people who have been "kicked out" for whatever reason...

I'm not sure which waiver form will be required. It's not my area of expertise.

[jpidgley 9]

yea, nor me. not many people seem to know much about it

[Rebecca Jo 1,962]

yea, nor me. not many people seem to know much about it

Ask over at britishexpats.com. Someone over there will know for sure.

[Sergi9 110]

ok and is it definitely the 212? cuz that one seems like its for people who have been "kicked out" for whatever reason...

The procedure for filing a 212(d)(3) waiver application is set out in 8 C.F.R. 212.4. Google that and it should explain the process.

I don't believe there is a 'specific form" for this waiver. 212 (d) 3 is just the heading of the paragraph in the INA that discusses this waiver. So a letter requesting it included with any evidence in support of the request is all that is needed. I do not even think this waiver has a fee associated with it. Steve Heller is a US Immigration attorney in UK , you might want to ring him up and hire him for help. He used to work at USCIS in London so if very familiar with their procedures. good luck.

Edited March 28, 2011 by Sergi9

[Sergi9 110]

Here you go:

PART 212 - DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

212.4 - Applications for the exercise of discretion under section 212(d)(1) and 212(d)(3).

(a) Applications under section 212(d)(3)(A)(1) General. District directors and officers in charge outside the United States in the districts of Bangkok, Thailand; Mexico City, Mexico; and Rome, Italy are authorized to act upon recommendations made by consular officers for the exercise of discretion under section 212(d)(3)(A) of the Act. The District Director, Washington, DC, has jurisdiction in such cases recommended to the Service at the seat-of-government level by the Department of State. When a consular officer or other State Department official recommends that the benefits of section 212(d)(3)(A) of the Act be accorded an alien, neither an application nor fee shall be required.

The recommendation shall specify: (i) The reasons for inadmissibility and each section of law under which the alien is inadmissible; (ii) Each intended date of arrival; (iii) The length of each proposed stay in the United States; (iv) The purpose of each stay; (v) The number of entries which the alien intends to make; and (vi) The justification for exercising the authority contained in section 212(d)(3) of the Act.

If the alien desires to make multiple entries and the consular officer or other State Department official believes that the circumstances justify the issuance of a visa valid for multiple entries rather than for a specified number of entries, and recommends that the alien be accorded an authorization valid for multiple entries, the information required by items (ii) and (iii) shall be furnished only with respect to the initial entry. Item (ii) does not apply to a bona fide crewman. The consular officer or other State Department official shall be notified of the decision on his recommendation. No appeal by the alien shall lie from an adverse decision made by a Service officer on the recommendation of a consular officer or other State Department official.

(2) Authority of consular officers to approve section 212(d)(3)(A) recommendations pertaining to aliens inadmissible under section 212(a)(28)©. In certain categories of visa cases defined by the Secretary of State, United States consular officers assigned to visa-issuing posts abroad may, on behalf of the Attorney General pursuant to section 212(d)(3)(A) of the Act, approve a recommendation by another consular officer that an alien be admitted temporarily despite visa ineligibility solely because the alien is of the class of aliens defined at section 212(a)(28)© of the Act, as a result of presumed or actual membership in, or affiliation with, an organization described in that section. Authorizations for temporary admission granted by consular officers shall be subject to the terms specified in 212.4© of this chapter. Any recommendation which is not clearly approvable shall, and any recommendation may, be presented to the appropriate official of the Immigration and Naturalization Service for a determination.

(b) Applications under section 212(d)(3)(B). An application for the exercise of discretion under section 212(d)(3)(B) of the Act shall be submitted on Form I192 to the district director in charge of the applicant's intended port of entry prior to the applicant's arrival in the United States. (For Department of State procedure when a visa is required, see 22 CFR 41.95 and paragraph (a) of this section.) If the application is made because the applicant may be inadmissible due to present or past membership in or affiliation with any Communist or other totalitarian party or organization, there shall be attached to the application a written statement of the history of the applicant's membership or affiliation, including the period of such membership or affiliation, whether the applicant held any office in the organization, and whether his membership or affiliation was voluntary or involuntary.

If the applicant alleges that his membership or affiliation was involuntary, the statement shall include the basis for that allegation.

When the application is made because the applicant may be inadmissible due to disease, mental or physical defect, or disability of any kind, the application shall describe the disease, defect, or disability. If the purpose of seeking admission to the United States is for treatment, there shall be attached to the application statements in writing to establish that satisfactory treatment cannot be obtained outside the United States; that arrangements have been completed for treatment, and where and from whom treatment will be received; what financial arrangements for payment of expenses incurred in connection with the treatment have been made, and that a bond will be available if required.

When the application is made because the applicant may be inadmissible due to the conviction of one or more crimes, the designation of each crime, the date and place of its commission and of the conviction thereof, and the sentence or other judgment of the court shall be stated in the application; in such a case the application shall be supplemented by the official record of each conviction, and any other documents relating to commutation of sentence, parole, probation, or pardon. If the application is made at the time of the applicant's arrival to the district director at a port of entry, the applicant shall establish that he was not aware of the ground of inadmissibility and that it could not have been ascertained by the exercise of reasonable diligence, and he shall be in possession of a passport and visa, if required, or have been granted a waiver thereof. The applicant shall be notified of the decision and if the application is denied of the reasons therefor and of his right to appeal to the Board within 15 days after the mailing of the notification of decision in accordance with the Provisions of part 3 of this chapter. If denied, the denial shall be without prejudice to renewal of the application in the course of proceedings before a special inquiry officer under sections 235 and 236 of the Act and this chapter.

When an appeal may not be taken from a decision of a special inquiry officer excluding an alien but the alien has applied for the exercise of discretion under section 212(d)(3)(B) of the Act, the alien may appeal to the Board from a denial of such application in accordance with the provisions of 236.5(b) of this chapter.

© Terms of authorization(1) General. Except as provided in paragraph ©(2) of this section, each authorization under section 212(d)(3)(A) or (B) of the Act shall specify: (i) Each section of law under which the alien is inadmissible; (ii) The intended date of each arrival, unless the applicant is a bona fide crewman. However, if the authorization is valid for multiple entries rather than for a specified number of entries, this information shall be specified only with respect to the initial entry; (iii) The length of each stay authorized in the United States, which shall not exceed the period justified and shall be subject to limitations specified in 8 CFR part 214. However, if the authorization is valid for multiple entries rather than for a specified number of entries, this information shall be specified only with respect to the initial entry; (iv) The purpose of each stay; (v) The number of entries for which the authorization is valid; (vi) Subject to the conditions set forth in paragraph ©(2) of this section, the dates on or between which each application for admission at POEs in the United States is valid; (vii) The justification for exercising the authority contained in section 212(d)(3) of the Act; and (viii) That the authorization is subject to revocation at any time.

(2) Conditions of admission. (i) For aliens issued an authorization for temporary admission in accordance with this section, admissions pursuant to section 212(d)(3) of the Act shall be subject to the terms and conditions set forth in the authorization.

(ii) The period for which the alien's admission is authorized pursuant to this section shall not exceed the period justified, or the limitations specified, in 8 CFR part 214 for each class of nonimmigrant, whichever is less.

(3) Validity. (i) Authorizations granted to crew members may be valid for a maximum period of 2 years for application for admission at U.S.

POEs and may be valid for multiple entries.

(ii) An authorization issued in conjunction with an application for a Form DSP150, B1/B2 Visa and Border Crossing Card, issued by the DOS shall be valid for a period not to exceed the validity of the biometric BCC for applications for admission at U.S. POEs and shall be valid for multiple entries.

(iii) A multiple entry authorization for a person other than a crew member or applicant for a Form DSP150 may be made valid for a maximum period of 5 years for applications for admission at U.S. POEs.

(iv) An authorization that was previously issued in conjunction with Form I185, Nonresident Alien Canadian Border Crossing Card, and that is noted on the card may remain valid. Although the waiver may remain valid, the non-biometric border crossing card portion of this document is not valid after that date. This waiver authorization shall cease if otherwise revoked or voided.

(v) A single-entry authorization to apply for admission at a U.S. POE shall not be valid for more than 6 months from the date the authorization is issued.

(vi) An authorization may not be revalidated. Upon expiration of the authorization, a new application and authorization are required.

(d) Admission of groups inadmissible under section 212(a)(28) for attendance at international conferences. When the Secretary of State recommends that a group of nonimmigrant aliens and their accompanying family members be admitted to attend international conferences notwithstanding their inadmissibility under section 212(a)(28) of the Act, the Deputy Commissioner, may enter an order pursuant to the authority contained in section 212(d)(3)(A) of the Act specifying the terms and conditions of their admission and stay.

(e) Inadmissibility under section 212(a)(1). Pursuant to the authority contained in section 212(d)(3) of the Act, the temporary admission of a nonimmigrant visitor is authorized notwithstanding inadmissibility under section 212(a)(1) of the Act, if such alien is accompanied by a member of his/her family, or a guardian who will be responsible for him/her during the period of admission authorized.

Action upon alien's arrival. Upon admitting an alien who has been granted the benefits of section 212(d)(3)(A) of the Act, the immigration officer shall be guided by the conditions and limitations imposed in the authorization and noted by the consular officer in the alien's passport.

When admitting any alien who has been granted the benefits of section 212(d)(3)(B) of the Act, the Immigration officer shall note on the arrival-departure record, Form I94, or crewman's landing permit, Form I95, issued to the alien, the conditions and limitations imposed in the authorization.

(g) Authorizations issued to crewmen without limitation as to period of validity. When a crewman who has a valid section 212(d)(3) authorization without any time limitation comes to the attention of the Service, his travel document shall be endorsed to show that the validity of his section 212(d)(3) authorization expires as of a date six months thereafter, and any previously-issued Form I184 shall be lifted and Form I95 shall be issued in its place and similarly endorsed.

(h) Revocation. The Deputy Commissioner or the district director may at any time revoke a waiver previously authorized under section 212(d)(3) of the Act and shall notify the nonimmigrant in writing to that effect.

(i) Alien witnesses and informants(1) Waivers under section 212(d)(1) of the Act. Upon the application of a federal or state law enforcement authority (LEA), which shall include a state or federal court or United States Attorney's Office, pursuant to the filing of Form I854, Inter-Agency Alien Witness and Informant Record, for nonimmigrant classification described in section 101(a)(15)(S) of the Act, the Commissioner shall determine whether a ground of exclusion exists with respect to the alien for whom classification is sought and, if so, whether it is in the national interest to exercise the discretion to waive the ground of excludability, other than section 212(a)(3)(E) of the Act. The Commissioner may at any time revoke a waiver previously authorized under section 212(d)(1) of the Act. In the event the Commissioner decides to revoke a previously authorized waiver for an S nonimmigrant, the Assistant Attorney General, Criminal Division, and the relevant LEA shall be notified in writing to that effect. The Assistant Attorney General, Criminal Division, shall concur in or object to the decision. Unless the Assistant Attorney General, Criminal Division, objects within 7 days, he or she shall be deemed to have concurred in the decision. In the event of an objection by the Assistant Attorney General, Criminal Division, the matter will be expeditiously referred to the Deputy Attorney General for a final resolution. In no circumstances shall the alien or the relevant LEA have a right of appeal from any decision to revoke.

(2) Grounds of removal. Nothing shall prohibit the Service from removing from the United States an alien classified pursuant to section 101(a)(15)(S) of the Act for conduct committed after the alien has been admitted to the United States as an S nonimmigrant, or after the alien's change to S classification, or for conduct or a condition undisclosed to the Attorney General prior to the alien's admission in, or change to, S classification, unless such conduct or condition is waived prior to admission and classification. In the event the Commissioner decides to remove an S nonimmigrant from the United States, the Assistant Attorney General, Criminal Division, and the relevant LEA shall be notified in writing to that effect. The Assistant Attorney General, Criminal Division, shall concur in or object to that decision. Unless the Assistant Attorney General, Criminal Division, objects within 7 days, he or she shall be deemed to have concurred in the decision. In the event of an objection by the Assistant Attorney General, Criminal Division, the matter will be expeditiously referred to the Deputy Attorney General for a final resolution. In no circumstances shall the alien or the relevant LEA have a right of appeal from any decision to remove.

[29 FR 15252, Nov. 13, 1964, as amended at 30 FR 12330, Sept. 28, 1965; 31 FR 10413, Aug. 3, 1966; 32 FR 15469, Nov. 7, 1967; 35 FR 3065, Feb.

17, 1970; 35 FR 7637, May 16, 1970; 40 FR 30470, July 21, 1975; 51 FR 32295, Sept. 10, 1986; 53 FR 40867, Oct. 19, 1988; 60 FR 44264, Aug. 25, 1995; 60 FR 52248, Oct. 5, 1995; 67 FR 71448, Dec. 2, 2002]

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