If you have been convicted of alien smuggling or even engaged in alien smuggling without being convicted, you may be deportable or inadmissible from the United States. This means that if you already have a green card you could be deported, and if you are applying for a green card, your application may be denied. If you are not sure whether you have engaged in alien smuggling, take a look at Nolo’s article on alien smuggling for more information.
Fortunately, in certain circumstances, a person who has engaged in alien smuggling may be eligible for a waiver of inadmissibility, allowing the person to go forward with an application for an immigration benefit, or to avoid deportation (removal).
First, the person must be a lawful permanent resident (a "green card" holder) or must be applying for a family-based immigrant visa or fiance visa. This means that the waiver is not available for any other type of petition, such as one for an employment-based visa, a student visa, or a visitors' visa.
Second, the person can apply for a waiver if the individual they helped bring to the United States was his or her spouse, parent, son, or daughter at the time of entry. The person cannot apply for a waiver if he or she helped smuggle anyone who isn't on this list of family members. In the case of spouses, a person may still apply for the waiver even if the couple ended up divorcing after the smuggling took place.
Third, the person must prove that he or she deserves the waiver, either for humanitarian purposes, to assure family unity, or because it is otherwise in the public interest. Meeting these requirements will be different in every case and will depend on each person’s individual circumstances. It is important to hire an attorney who can help you sort through all of the options in your case and prepare a convincing argument in favor of a waiver.
In order to request the waiver, the person must file Form I-601. Even though you should hire an attorney to help prepare you waiver package, it is a good idea to take a look at the form and familiarize yourself with the different questions. That way you will be prepared to give your attorney all of the information needed to prepare a strong case.
Additionally, you should begin thinking about your individual situation and why you deserve a waiver. In your application, you will need to show U.S. Immigration and Citizenship Services (USCIS) that you merit a waiver for humanitarian purposes, to ensure family unity, or because it is in the public interest. Outlined below is a list of some questions you can begin thinking about to determine whether or not you deserve a waiver under each of those three categories.
Generally, USCIS will grant a waiver based on humanitarian purposes if the person shows that he or she will suffer a serious hardship if the application is denied. Ask yourself some of the following questions to determine whether or not you have humanitarian reasons to request a waiver:
Do you or any of your family members have serious medical conditions?
Are you taking care of someone physically or financially in the United States?
Do you face any threat or danger in your home country?
Did you suffer any physical, emotional, or sexual abuse at any point in your life?
Do you have a stable job in the United States?
Another basis for granting a waiver is family unity. Do any of the following questions apply to your situation? If so, you may be able to base your waiver on family unity grounds:
Do you have a U.S. citizen spouse or minor children in the United States?
Do you have any other U.S. citizen or permanent resident relatives in the United States?
Are you responsible for the care of any family members in the United States?
Are your children enrolled in school in the United States? How are they doing in school?
Is most of your family in the United States?
In the Public Interest:
Finally, a person may apply for a waiver if he or she can show that it is in the public interest that the person remain in the United States. Think about the following questions to determine if this could be a basis for your waiver:
Have you volunteered or been active in the community in the United States?
How long have you lived in the United States (the longer, the more community ties you are presumed to have made)?
Do you have a clean criminal record?
Do you face a threat or danger if you return to your home country?
Do others depend on you in the United States?
Do you own a business that provides jobs to others in the United States?
These are just some examples of questions you can ask yourself to start thinking about your eligibility for a waiver under each category. This list is non-exhaustive, and there may be many other reasons that would help you qualify. However, answering these questions is a good way to start thinking about why you might be eligible for a waiver of inadmissibility or deportability.
After you think about these questions and determine which ones apply to your situation, you should begin preparing supporting documentation. USCIS and immigration judges prefer to see evidence proving that what a person tells them in their application is true, and it is a good idea to begin gathering that documentation as early as possible. For example, if you have U.S. citizen children, get copies of their birth certificates. Or if you or a family member has serious medical conditions, get copies of the medical records.
Once you hire an attorney to help you with your case, he or she will be able to give you additional guidance about which documents to collect and where to get them. However, even having some of this documentation available during your early consultations with an attorney could help the attorney better analyze your case. Because a waiver of alien smuggling is unique to each case, you should be prepared to work closely with your attorney throughout the process to answer questions, gather documentation, and brainstorm reasons why you qualify.