In many cases, it is possible to apply for a waiver of the ground of inadmissibility by completing form I-601.
Even if a fiancé(e) or spousal visa petition is approved (i.e., the foreign spouse/fiancé(e) receives the right to sit for an immigration interview), that does not necessarily ensure that a visa will be issued. In fact, there are several reasons why a petitioner will be deemed inadmissible to the U.S. These include a petitioner who:
- Has a communicable disease
- Has been convicted of certain crimes
- Is addicted to drugs or alcohol
- Is likely to become a public charge (i.e., need physical, mental or financial support through social service programs)
- Has a two-foreign-residency requirement (i.e., is a former exchange visitor)
- Has a mental or physical condition likely to cause a danger to others
- Formerly used fraud, misrepresentation or other illicit means to enter the U.S.
- Committed serious criminal acts
- Has been in the U.S. illegally for more than 180 days either through initial illegal entry or overstaying a prior visa
Even if an applicant is found inadmissible to the US, however, all hope for legally entering the U.S. is not lost. In many cases, it is possible to apply for a waiver of the ground of inadmissibility by completing form I-601. Waivers under form I-601 can generally be granted if the applicant can prove that the denial of the visa application will cause “extreme hardship” to a “qualifying relative,” which is a parent or spouse who is a Citizen or lawful permanent resident of the US for waivers of fraud or unlawful presence; and includes children and sons and daughters if seeking waivers for other grounds, such as crimes.
What is Extreme Hardship?
There is no hard and fast rule about what constitutes extreme hardship to a qualifying relative. The Code of Federal Regulations gives some vague guidance at 8 CFR 212.7(a)(1)(i), which states:
“Extreme hardship is greater than the normal hardship the qualifying relative can be expected to experience if the alien is denied admission”
Extreme hardship can be proven in a variety of ways, including a showing of hardship affecting the health, emotional well-being, finances, educational opportunities, extended family, culture/language/religious/ethnic barriers, a fear of persecution and others. Extreme Hardship is evaluated based on the “totality of circumstances,” which essentially means all factors must be assessed cumulatively.
As with any other immigration-related matter, when seeking an I-601 ineligibility waiver, the assistance of an experienced immigration lawyer is invaluable and can greatly increase the chances of success.