CRIMINAL CONDUCT, FRAUD OR MATERIAL MISREPRESENTATION, OR UNLAWFUL PRESENCE
You may find yourself barred from becoming a lawful permanent resident (i.e. green card) or obtaining an immigrant visa if you have been convicted of a crime, accrued unlawful presence, or made false statements or submitted fraudulent documents to gain an immigration benefit. Some of these bars are permanent while others are for a specified period of time. You may not realize you are barred from becoming a lawful permanent resident (i.e. green card) or obtaining an immigrant visa until USCIS or consular official tells you. The good news is that you may be able to apply for a waiver. Whether you are eligible for a waiver depends upon your immigration and/or criminal history. For example, you are not eligible for a waiver if you committed marriage fraud or filed a frivolous asylum application.
You can apply for a “hardship” or “I-601” waiver from inside or outside the United States. A “hardship” or “I-601” waiver is based on “extreme hardship” to your qualifying relatives. Not all relatives are considered qualifying relatives. Typically, only your U.S. citizen or lawful permanent resident spouse or parent(s) are considered qualifying relatives. Extreme hardship refers to the hardships your qualifying U.S. citizen or lawful permanent resident (i.e. green card holder) relative(s) would suffer if you are not allowed to remain in or enter the United States to live permanently. Whether you can show your qualifying relative will suffer extreme hardship will depend upon your family’s circumstances. Extreme hardship includes the hardships your qualifying relative(s) will suffer if forced to leave the United States to live with you and the hardships your qualifying relative(s) will suffer if he/she/they remain in the United States while you live overseas. The normal difficulties associated with family separation are not sufficient to establish extreme hardship.
Factors to be considered when assessing hardship include, but are not limited, to:
- Family ties to the United States and impact of separation;
- Economic detriment;
- Difficulties in adjusting to life in your home country;
- Quality and availability of educational opportunities in your home country;
- Inferior quality of medical services and facilities in your home country especially if your relative has health conditions;
- Psychological impact of relocation or separation;
- Ability of your relative to pursue his/her chosen employment in your home country; and
- Country conditions in your home country.
A “hardship” or “I-601” waiver is discretionary, which means that even if you are eligible your application must warrant a favorable exercise of discretion. This means that to be granted such relief you must demonstrate your positive factors outweigh the negative factors present in your case. Positive factors include, but are not limited to, the following:
- Your family ties to the United States;
- Your involvement in the community;
- Your reformation and rehabilitation if previously convicted of a crime;
- The passage of time since any criminal conviction(s);
- Your employment history; and
- Hardship to your family.
Negative factors that will weigh against granting your application include, but are not limited to, the following:
- Your criminal record, if any, including the nature, recency, and seriousness of your crimes;
- Whether you have other significant violations of immigrations laws; and
- Other evidence that supports shows you possess bad character or otherwise undesirable as a lawful permanent residence.