The first step to being allowed to enter the United States legally is usually obtaining a visa.
A visa is a document (or stamp in a passport) that grants legal permission to enter the United States. There are many different types of visas, but they are typically separated into 4 broad categories: tourist, work, student, and permanent immigrant. A tourist visa, for example, is usually good for 1 visit to the United States. The visit can be made during a 10 year period, and the visit can last up to 6 months depending on what country the alien is visiting from.
Under some circumstances, a person is ineligible for a visa, making them "inadmissible" to the United States.
The most common reason for ineligibility / inadmissibility is illegal presence. Entering the US without a visa or "overstaying" a visa results in illegal presence. More than 180 days of illegal presence results in a 3 year ban from re-entering the United States. More than 1 year of illegal presence results in a 10 year ban. Illegal presence only starts to accrue, however, if you are over the age of 18.
In addition to illegal presence, a person can be found ineligible for a visa / inadmissible to the United States if they:
- Have been determined to have a dangerous physical or mental disorder;
- Have been determined to be a drug or alcohol abuser;
- Have committed serious criminal acts, including crimes involving moral turpitude, drug trafficking, and prostitution;
- Are likely to become a public charge;
- Have used fraud or other illegal means to enter the United States; or
- Have a two foreign residency requirement (for former exchange visitors).
If you (or someone you know) are inadmissible to enter the USA for one of the reasons listed above, you may be able file an I-601 form that requests a waiver of your grounds of inadmissibility pursuant to Section 212 of the Immigration and Nationality Act. If granted, it will allow a visa to be given, even though you technically ineligible.
Getting an I-601 Waiver granted is NOT easy. It requires a lot of work and preparation and gathering of proof. If you do need to seek one, then I strongly encourage you to consult with an immigration attorney. Advice regarding YOUR particular situation can help save you costs and delays.
In general, though, the law requires you to show that you have a “qualifying relative” who will suffer “extreme hardship” if your waiver is not granted.
A "qualifying relative" can be a US Citizen (USC) or a Legal Permanent Resident (LPR). If seeking a waiver of inadmissibility due to previous criminal history, the “qualifying relative” can be a spouse, parent, son or daughter (above 21) or a fiance. If seeking a waiver for illegal presence, then the qualifying relative must be a spouse, fiance or parent.
“Extreme hardship” is measured from your relative’s point of view. The central question for the Immigration authorities is what kind of “extreme hardship” the USC or LPR would suffer if the waiver is denied and your visa is not ultimately approved.
"Extreme hardship" is vaguely defined. It is more than the ordinary loss or sadness of being apart. It is described as “greater than the normal hardship the qualifying relative can be expected to experience if the Alien is denied admission.” It is a judgment call that is made by the Immigration official in charge of your case. This can be a USCIS official in the US or an officer at the US consulate in your home country or sometimes the Judge in an Immigration Court.
If seeking a waiver, you will typically need to prepare a "waiver packet." This consists of a “Hardship Letter,” or letter setting forth and explaining the extreme hardship present in your case. Two main questions that need to be answered for the USCIS are:
1) Why is the alien is NEEDED in the US? and
2) Why can’t the USC / LPR move abroad to the alien’s country and live there?
You also need to submit PROOF of your hardship in the form of independent documentation to support your claims for hardship. If your proof of explaining extreme hardship is not plausible then the waiver would be denied. If your waiver is denied, then you could have a very long wait, often years, before able to come to United States.
Factors to be considered when evaluating hardship include:
Medical: Do the USC or LPR relative(s) have any medical conditions making the alien vital to care-taking of them or making relocation exceptionally hard and making it necessary for the waiver to be given?
Financial: Do the USC or LPR relative(s) have a dire need for the alien to be admitted for financial reasons such as a mortgage payment or bills or business?
Education: Is the USC or LPR relative(s) in school that would make relocation to another country an extreme hardship?
Family / Community Ties: Are there strong ties for the USC or LPR relative(s) that would make relocation an extreme hardship?
Obstacles to Relocation: Is the country the alien from one that is unstable?
Whether a waiver is granted is usually a combination of these factors. If you are planning to file an I-601 Waiver of Inadmissibility, I strongly encourage you to consult with a lawyer who can help you draft the best Hardship Letter based on your circumstances and help you assemble proof to adequately support it.