I601 Legal Research Links

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I am starting this link as a place for people to START researching the I601 process and what is required once this is required in the Immigration Process. If you have links to research, attorney guides or discussions, HSL letter examples, or links to Embassy processing times post here.

To get the ball rolling here is an overview of what the I601 means by Shaw Peerally law Group.

I-601 Immigrant Visa Waiver Lawyers

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?

In some cases, the I-601 applicant will simply be residing in the US without being detected as inadmissible/removable, and chooses to stay. In such a case, 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.

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FUNDAMENTALS OF IMMIGRATION LAW

* this 357 page guide should be evidence enough you should consult with an attorney if you need this kind of help.

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USCIS Procedures for adjudicating I601

This is the "manual" that USCIS uses to process the I601

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CIMT and Petty Theft Exception

*Discussion by Sheehab and Associates Legal Firm

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Substance Use, Health-Related Inadmissibility and Waivers By Andrew J. Stevenson*

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http://bogota.usembassy.gov/root/pdfs/consular/2010/waiverquestionnaire2.pdf

*Bogata Embassy uses this, not sure if all consulates do, however the form itself gives insight into what the adjudicator is trying to establish.

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https://www.state.gov/documents/organization/86942.pdf

U.S. Department of State Foreign Affairs Manual Volume 9 - Visas

9 FAM 40.21(a) Notes Page 1 of 28

9 FAM 40.21(a) NOTES

(CT:VISA-1506; 09-07-2010) (Office of Origin: CA/VO/L/R)

9 FAM 40.21(a) N1 APPLYING INA 212(a)(2)(A)(i)(I)

9 FAM 40.21(a) N1.1 Determining Ineligibility

(CT:VISA-1318; 09-24-2009)

When adjudicating a visa application for an applicant whom you (consular officer) have reason to believe has committed a crime involving moral turpitude, the officer must determine whether:

*this includes explanation of CIMT

Edited December 1, 2010 by brokenfamily

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Excellent Index of Topics on I601 and I212

* I-601 Application Adjudication

* I-601 Waiver Costs

* I-601 Discretionary Factors

* Mexican Pilot Program

* Types of I-601 Waivers

* Timing Issues

* I-212 Waiver for Reapplication

* I-601 Categories of Hardship

* Update on Visa Processing at the CDJ April, 2009

* Cases in Which Waivers Are Not Available

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Self-Test for Waiver Ineligibility

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USCIS REGIONAL OFFICES

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AILA Military Assistance Program (MAP) Cite as "AILA InfoNet Doc. No. 07121379 (posted Dec. 19, 2007)" The AILA Military Assistance Program (MAP) is a new collaborative effort between the American Immigration Lawyers Association (AILA) and the Legal Assistance Offices (LAO) of the United States military Judge Advocate General Corps. The military Legal Assistance Offices (LAO) provide free assistance to soldiers and their families, including active duty, reserve component, and retired military personnel in order to maintain the highest level of readiness possible in the event a military member is deployed. Recently, however, JAG attorneys have been inundated with complex immigration legal questions. To resolve these cases successfully, they often need the assistance and experience of seasoned immigration attorneys. AILA MAP is bringing these two groups together for the first time in this dynamic partnership.

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USCIS Response to Recommendations on i601 Processing

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Handy chart Consular uses to determine what to write on the denial form;

9 FAM 40.6 EXHIBIT I GROUNDS OF INADMISSIBILITY AVAILABLE WAIVERS

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PRACTICE ADVISORY1

November 30, 2010

PROSECUTORIAL DISCRETION: HOW TO GET DHS TO ACT

IN FAVOR OF YOUR CLIENT

By Mary Kenney

Introduction

This practice advisory explains what prosecutorial discretion is, who has authority to exercise it, and how it is exercised most often in immigration cases. The advisory also suggests ways that attorneys can influence the favorable exercise of prosecutorial discretion by Department of Homeland Security (DHS) officers, whether from Immigration and Custom Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS) or Customs and Border Patrol (CBP).2

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What are my chances on Appeal?

You be the Judge;

The United States courts of appeals issued 382 decisions in September 2010 in cases appealed from the Board. The courts affirmed the Board in 349 cases and reversed or remanded in 33, for an overall reversal rate of 8.6% compared to last month’s 13.7%. There were no reversals from the Firth, Fourth, Sixth, and Tenth Circuits.