WAIVERS FOR CRIMINAL CONVICTIONS, FRAUD OR OTHER BARS
You may find yourself being prevented from becoming or remaining a lawful permanent resident (i.e. green card) if you have been convicted of a crime, made false statements, or submitted fraudulent documents to gain an immigration benefit. You may not even realize you are barred from becoming a lawful permanent resident (i.e. green card) until USCIS or Immigration Judge tells. 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 in removal proceedings. You can also request an Immigration Judge reconsider a “hardship” or “I-601” waiver that was previously denied by USCIS. The Immigration Judge will determine if you should be granted a waiver. 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 removed from the United States. 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 with you and the hardships your qualifying relative(s) will suffer if he/she/they remain in the United States without you. 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 adverse 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.
Adverse 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.