If you are a would-be immigrant who is inadmissible to the U.S. (as discussed in "Inadmissibility: When the U.S. Can Keep You Out"), you may be able to overcome this by applying for what's called a waiver of inadmissibility, on Form I-601. The adjudication process for I-601 waiver applications is somewhat subjective.
Most I-601 waiver applications are based on showing that a qualifying relative (a member of the immigrant-applicant's immediate family) who is a U.S. citizen or permanent resident would suffer extreme hardship if the immigrant applicant were to be denied entry or removed from the U.S. or if the whole family had to move overseas in order to be together. The term "extreme hardship" is not defined in the Immigration and Nationality Act (I.N.A.). Consequently, the decision-makers have greater discretion to approve or deny I-601 waiver applications than they do with other U.S. immigration benefits.
The subjectivity involved in the adjudication process for I-601 applications means that the chance of your application being approved depends on the strength of the evidence you submit. Adjudicators will review your evidence and balance the hardships you present with the existence of any aggravating and mitigating factors.
Proving Extreme Hardship
One of the most common reasons that the U.S. immigration authorities deny an I-601 waiver application is for insufficient evidence of extreme hardship. Sometimes this is simply due to the applicant not having submitted enough convincing documentation. Your qualifying relative may truly be experiencing extreme hardship at the prospect of your being denied a visa or green card, but if you did not provide enough evidence with your application to convince the adjudicator reviewing your case, your application could be denied. In cases such as this, you can file a motion to reopen or reconsider, or you can file a new waiver application with the additional documentation that will demonstrate extreme hardship.
In some cases, the decision-maker may determine that, even there you submitted plenty of documentation, none of it convincingly shows extreme hardship. This is more likely to happen when your qualifying relative is from the same country as you, speaks your native language, has family in your home country, and so on. In cases such as this, you still have the option to file a motion to reopen or reconsider, or submit a new application, but your chances of approval will not necessarily increase unless you are able to persuade a new adjudicator that your qualifying relative cannot leave the United States.
Aggravating and Mitigating Factors
The chances of your I-601 waiver application being denied may be higher if aggravating factors are present. Aggravating factors include, but are not limited to, prior violations of immigration law, criminal charges, arrests, convictions, and marriage fraud. If your spouse is from your home country or speaks your native language, any of these factors on his or her record could also be viewed as aggravating. When you prepare your I-601 waiver application, it is important that you identify all aggravating factors that could weaken your application.
Keep in mind when you prepare an I-601 waiver application that the cause of your inadmissibility may itself be an aggravating factor and negatively affect your chance of approval. Even if the law permits you to file a waiver application, your chances of success are less if you were found inadmissible for fraud or willful misrepresentation, or for criminal grounds.
If you have aggravating factors present, you will need to show a much higher level of extreme hardship for your qualifying relative. You will also want to submit evidence of mitigating factors. Mitigating factors can overcome aggravating factors, particularly if they are directly related.
For example, if you have a criminal background, evidence that you participated in a rehabilitation program is a mitigating factor that could strengthen your application. If you are inadmissible because of unlawful presence, evidence that you acted in good faith and believed you were complying with immigration laws is a mitigating factor that could strengthen your application. If your spouse is from your home country and can speak your native language, evidence that he or she has to stay in the U.S. to care for a sick relative is a mitigating factor that could strengthen your application.
Seeking Legal Advice
The level of discretion and subjectivity involved in adjudicating I-601 waiver applications means you can never guarantee a positive outcome. It is always a good idea to consult with an immigration attorney who has extensive experience filing waiver applications. It is through experience that attorneys can identify those factors that can make or break your application.