Applying for a Waiver of Alien Smuggling

If you are a foreign-born person who has been convicted of alien smuggling or even engaged in alien smuggling without being convicted, you could thus be deportable from or inadmissible to the United States. (See I.N.A § 212(a)(6)(E)(i).) This means that if you already have a green card you could be placed into removal proceedings and ultimately deported; and that if you are applying for a green card, your application may be denied. Read more about alien smuggling if uncertain whether this is something you've committed; then read on for discussion of whether you might be eligible for a waiver, or legal forgiveness.

Are You Eligible for a Waiver of Alien Smuggling?

Fortunately, in certain circumstances, foreign-born persons who have engaged in alien smuggling might be eligible for a waiver of inadmissibility, allowing them to go forward with an application for an immigration benefit or to avoid deportation (removal). But only certain types of applicants qualify.

First, the person must be a lawful permanent resident (a "green card" holder) or must be applying for a family-based immigrant visa or fiancé visa. The waiver is not available for any other type of petition, such as one for an employment-based visa, a student visa, or a B-2 visitors' visa.

Second, the person can apply for a waiver only if the individual they helped bring to the United States was their spouse, parent, son, or daughter at the time of entry. One cannot apply for a waiver after helping smuggle anyone who isn't on this list of family members. In the case of spouses, the one may still apply for the waiver even if the couple ended up divorcing after the smuggling took place.

Third, the foreign-born person must prove that they deserve 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 individual circumstances.

How Can You Prepare to Apply for the Waiver?

In order to request the waiver of alien smuggling, you must complete and file USCIS Form I-601. Even though you should hire an attorney to help prepare your 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 personal situation and why you deserve a waiver. Again, 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 questions you can begin thinking about to determine whether or not you deserve a waiver under each of those three categories.

Waiver of Alien Smuggling for Humanitarian Purposes:

USCIS will ordinarily grant a waiver based on humanitarian purposes based on a showing that the applicant will suffer a serious hardship if the request for a U.S. visa or to avoid removal is denied. Ask yourself:

• 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?

Waiver of Alien Smuggling for Family Unity Reasons:

Another basis for granting a waiver is family unity. Do any of the following questions apply to your situation? If so, you might be able to base your waiver request 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?

Waiver of Alien Smuggling in the Public Interest:

Finally, a person may apply for a waiver by showing that it is in the public interest that they remain in the United States. Think about the following questions:

• Have you volunteered or been active in the community in the United States?
• How long have you lived in the United States (the longer that is, 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. There could be many other reasons that would help you qualify.

Preparing Documents to Support a Waiver of Alien Smuggling

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.

Getting Legal Help

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.

Once you hire an attorney to help you with your case, they 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, be prepared to work closely with your attorney throughout the process to answer questions, gather documentation, and brainstorm reasons why you qualify.