I-601 Denial. Refiling to Win an I-601 Approval

Navigating the complexities of U.S. immigration law can be challenging, especially when faced with the denial of an I-601 Waiver of Inadmissibility. The I-601 waiver is often a critical step for those who are inadmissible to the United States due to certain grounds, such as unlawful presence, criminal history, or misrepresentation. If your initial I-601 waiver application has been denied, it is essential to understand the reasons behind the denial and the steps you can take to refile and increase your chances of approval. If this is the first time you are filing an I-601 waiver, it is important to be fully prepared.

Definition of Inadmissibility

Inadmissibility refers to a set of legal grounds under U.S. immigration law that prevent an individual from entering or remaining in the United States. When a person is deemed inadmissible, they are either barred from obtaining a visa, entering the U.S., or adjusting their status to that of a lawful permanent resident. The grounds for inadmissibility are outlined in the Immigration and Nationality Act (INA), specifically under Section 212(a).

Common Grounds of Inadmissibility

The grounds of inadmissibility can be broadly categorized into several areas, including:

1. Health-Related Grounds: Certain medical conditions, such as communicable diseases of public health significance (e.g., tuberculosis) or lack of required vaccinations, can render an individual inadmissible.
2. Criminal and Related Grounds: Individuals who have been convicted of certain crimes, such as crimes involving moral turpitude, drug offenses, human trafficking, money laundering, or aggravated felonies, may be deemed inadmissible.
3. Security-Related Grounds: Individuals who are deemed to pose a threat to national security, such as those involved in terrorism or espionage, are inadmissible.
4. Public Charge: An individual may be considered inadmissible if they are likely to become a public charge, meaning they are likely to rely primarily on the U.S. government for subsistence, such as through public cash assistance or long-term institutional care.
5. Immigration Violations: This includes individuals who have violated U.S. immigration laws, such as those who have overstayed their visa, entered the U.S. illegally, committed fraud or misrepresentation to obtain immigration benefits, or have been previously deported.
6. Documentation Issues: Individuals who do not have proper documentation, such as a valid passport or visa, or who have engaged in fraud or misrepresentation to obtain immigration benefits, may be deemed inadmissible.
7. Unlawful Presence: Individuals who have accrued unlawful presence in the U.S. (e.g., stayed in the U.S. without authorization) for more than 180 days and then leave the U.S. may be barred from re-entering for a period of time (typically three or ten years, depending on the length of unlawful presence).
8. Miscellaneous Grounds: Other grounds include practicing polygamy, being a former citizen who renounced citizenship to avoid taxation, or engaging in child abduction.

If a person is inadmissible to the United States, they are required to file a waiver to overcome the ground of inadmissibility. It is important to note that not all grounds of inadmissibility have a waiver available. Other grounds of inadmissibility, including being convicted of crime involving moral turpitude, making a misrepresentation to the US government, or being unlawfully present in the United States, require that you show certain close family members will suffer an extreme hardship.

Understanding the I-601 Waiver

An I-601 waiver allows certain individuals who are inadmissible to the United States to seek a waiver of those grounds and be granted lawful status. This waiver is particularly relevant to those who have a U.S. citizen or lawful permanent resident spouse, parent, or child who would suffer extreme hardship if the applicant were denied admission.

Common grounds of inadmissibility that can be waived by filing an I-601 waiver include:

I-601 Denials Are Common. Don’t Give Up

It is important to note that the adjudication of an I-601 waiver is highly discretionary. You may have two different officers decide the same exact case but with entirely different outcomes. This is because the idea of “extreme hardship” is understood differently between different officers. The most common reason for an I-601 denial is because the officer was not convinced that your spouse or child would suffer an “extreme hardship” if the waiver is not approved.

Many I-601 applications face denial due to various reasons, including but not limited to:

1. Insufficient Evidence of Extreme Hardship: The most common reason for denial is the failure to adequately demonstrate "extreme hardship" to a qualifying relative if the waiver is not granted. This hardship must go beyond the normal difficulties that arise when a family member is separated due to immigration issues.
2. Lack of Supporting Documentation: Another reason for denial is the lack of thorough and compelling documentation to support the claim of extreme hardship. Merely stating that hardship exists is not enough; applicants must provide evidence such as medical records, financial documents, sworn declarations and expert opinions.
3. Failure to Address All Grounds of Inadmissibility: Sometimes, applicants only address the inadmissibility ground they believe to be most relevant without considering all possible grounds cited by the U.S. Citizenship and Immigration Services (USCIS). All grounds of inadmissibility must be adequately addressed in the waiver application. For example, some individuals may face two grounds of inadmissibility, for example, a misrepresentation and separately, unlawful presence. The waiver must seek a waiver of both grounds of inadmissibility, not just one.
4. Inconsistencies in Submitted Information: Inaccuracies, inconsistencies, or omissions in the information provided in the application can also result in denial. USCIS thoroughly reviews the application and accompanying evidence, so any discrepancies can lead to questions about the applicant's credibility.
5. Insufficient Legal Arguments: If the legal argument for granting the waiver is not clearly articulated, or the application does not cite relevant case law, the USCIS officer reviewing the case may deny the application.

Steps to Take After an I-601 Denial

If you receive an I-601 waiver denial, it is crucial to act promptly and strategically. Here are the steps you should consider:

1. Understand the Reasons for Denial

Carefully review the denial notice from USCIS. This notice will outline the specific reasons why your I-601 waiver was denied. Understanding these reasons is vital as it will inform your strategy moving forward. Use the denial as a roadmap on how to strengthen your case, and if you previously did not use an immigration lawyer, now is the time to hire one. Waivers are an important complex legal task, and its approval means lawful permanent residency. Don’t take this lightly and hire an immigration lawyer.

2. Consult with an Immigration Attorney

Given the complexity of the I-601 waiver process, consulting with an experienced immigration attorney is often beneficial. An attorney can help you understand the denial, identify any weaknesses in your initial application, and assist you in gathering additional evidence for a stronger refiled application.

3. Consider Filing an Appeal or Motion to Reopen

In some cases, it may be appropriate to file an appeal or a motion to reopen the case with USCIS if you believe the denial was due to an error on the part of USCIS or if new evidence is available that could change the outcome of your application. This step should be done cautiously and with legal guidance, as appeals can be complex and time-sensitive.

It is important to note that generally, you cannot appeal an I-601 decision. However, you do have the right to file a motion to reopen or a motion to reconsider. As a practical matter, a motion to reopen or a motion to reconsider is filed when it is clear, without a doubt, that USCIS’s decision was in error, or, if an important document was left out of your filing. Because it is difficult to prove an error, especially in a case that rests highly on discretion, our office usually recommends refiling the I-601 waiver. Because the I-601 waiver decision and the I-485 application are linked together, often this involves refiling your entire applications – basically, starting over. However, doing so will increase your chance of success.

4. Refile the I-601 Waiver Application

If you decide to refile your I-601 waiver application, take the following steps to strengthen your case:

• Collect More Evidence: Gather more substantial and convincing evidence to prove extreme hardship. This could include additional medical or psychological evaluations, updated financial records, or more detailed expert opinions.
• Address the Denial Points: Directly address all the points mentioned in the denial notice. Ensure that you have adequately covered all grounds of inadmissibility cited by USCIS.
• Provide a Detailed Legal Brief: A comprehensive legal brief that clearly articulates the legal grounds for the waiver and cites relevant case law can be very persuasive. An immigration attorney can assist in drafting this brief. Sometimes, the legal issues are straightforward, and a legal brief may not be necessary. Let your attorney decide.
• Be Honest and Transparent: Ensure that all information provided is accurate, consistent, and transparent. Any discrepancies or omissions can lead to another denial.

Clearly Demonstrating “Extreme Hardship”

Extreme Hardship in the context of U.S. immigration law is a legal standard used to evaluate whether a U.S. citizen or lawful permanent resident (LPR) family member would face significant difficulties if their foreign national relative is denied entry to or removed from the United States. This concept is most often associated with waivers for certain grounds of inadmissibility, such as the I-601 Waiver of Inadmissibility, I-601A Provisional Unlawful Presence Waiver, and cancellation of removal cases.

Definition and Criteria of Extreme Hardship

"Extreme hardship" is not explicitly defined in the Immigration and Nationality Act (INA); instead, it is a discretionary standard that depends on the totality of the circumstances presented in each case. USCIS and immigration judges assess extreme hardship on a case-by-case basis, considering all relevant factors that may affect the qualifying relative (U.S. citizen or LPR spouse, parent, or child).

To establish extreme hardship, an applicant must demonstrate that the hardship faced by the qualifying relative would be beyond the normal or expected consequences of family separation or relocation.

Factors Considered in Determining Extreme Hardship

USCIS and immigration judges may consider a variety of factors, including but not limited to:

1. Family Ties and Impact: The presence of other family members in the U.S. and the emotional and psychological impact of separation from the applicant. If the qualifying relative has strong family ties in the U.S., separation can be more challenging.
2. Medical Conditions: If the qualifying relative has a serious medical condition, the denial of a waiver could lead to extreme hardship. The applicant must provide evidence such as medical records, physician statements, and information about the availability (or lack) of appropriate medical care in the foreign country.
3. Financial Impact: The financial strain that the qualifying relative would face if the applicant is denied entry or removed from the U.S. This can include loss of income, inability to maintain a standard of living, or the costs of relocating to a foreign country. The financial impact of separation, such as maintaining two separate households in two separate countries is also considered. It is important to also note that loss of employment opportunities in a foreign country.
4. Country Conditions: The conditions in the country to which the applicant would be deported or denied entry can play a significant role. Factors like civil unrest, violence, lack of medical care, or economic instability in the foreign country may contribute to a finding of extreme hardship. It is important to note that the country conditions are only relevant if the US citizen or LPR spouse or children will be accompanying their relative if the waiver is denied.
5. Educational Disruption: If the qualifying relative is a child or a student, the impact on their education, language barriers, or cultural adaptation issues may be considered.
6. Psychological and Emotional Hardship: Evidence of psychological or emotional hardship, such as depression, anxiety, or other mental health conditions that would result from separation or relocation, is taken into account. Although not required, many cases will include psychological evaluations to demonstrate this hardship.
7. Age and Health of Qualifying Relative: The age, health, and specific needs of the qualifying relative can be pivotal. Elderly parents or young children might experience more significant hardship compared to other relatives.
8. Other Relevant Factors: Any other factors or unique circumstances that might create extreme hardship, such as the inability to provide care for elderly or disabled family members or fear of persecution or harm in the country of return.

What Does Not Qualify as Extreme Hardship?

While the consequences of separation are often painful and difficult, standard hardships that are expected in family separations, such as emotional distress, economic difficulties, or the inconvenience of living in a different country, do not typically meet the threshold of "extreme hardship." The hardship must exceed these normal levels and be more severe or unique to qualify.

Therefore, the key to winning an I-601 waiver is to show that the hardship suffered is not normal, and that it rises to the level of extreme.

Evidence Proving Extreme Hardship

To establish extreme hardship, the applicant must provide compelling, detailed, and well-documented evidence to support their claim. This can include:

• Affidavits from the applicant and qualifying relatives describing the hardship.
• Medical records and statements from healthcare professionals.
• Financial documents such as tax returns, pay stubs, bank statements, and letters from employers.
• Reports on country conditions and expert opinions.
• Psychological evaluations and letters from mental health professionals.

Aggregation of Hardships

Sometimes, there is not one single “extreme hardship”. In that case, it is possible to add all the small hardships together to form an “extreme hardship”.

Aggregation of Hardships in the context of U.S. immigration law refers to the process by which the U.S. Citizenship and Immigration Services (USCIS) or an immigration judge considers all the hardships that a qualifying relative would face—cumulatively—when determining whether "extreme hardship" exists. Instead of evaluating each hardship in isolation, the adjudicator examines the combined impact of all the hardships presented to assess whether, collectively, they meet the standard of "extreme hardship."

How Aggregation of Hardships Works

When applying for a waiver based on extreme hardship, it is often not just a single factor that meets the extreme hardship standard but the combination of multiple factors that, when considered together, amount to extreme hardship. Aggregation involves taking into account the totality of circumstances, including the interplay between different types of hardships (e.g., financial, emotional, medical, psychological) and how they affect the qualifying relative as a whole.

For example, financial difficulties, in combination with serious medical issues and emotional trauma, might collectively constitute extreme hardship, even if none of these factors alone would be considered "extreme."

Example of Aggregation of Hardships

Consider a scenario involving a U.S. citizen spouse who is the qualifying relative for a waiver applicant:

1. Medical Hardship: The U.S. citizen spouse suffers from a chronic medical condition that requires ongoing care and treatment in the United States. If the waiver applicant (the foreign national) is removed or denied entry, the spouse may lose the physical, emotional, and financial support provided by the applicant, which is crucial for managing their health condition.
2. Emotional and Psychological Hardship: The separation from the spouse may lead to significant emotional and psychological distress, particularly if the spouse relies on the applicant for emotional support and caregiving. If the spouse has a history of depression or anxiety, this could exacerbate their condition.
3. Financial Hardship: If the applicant is the primary breadwinner or a significant contributor to the household income, their absence could result in severe financial difficulties for the spouse, including the inability to pay for medical care, housing, or other essential needs.
4. Educational Hardship: If the couple has children who would also be affected, the impact on their education, stability, and well-being would further add to the overall hardship experienced by the U.S. citizen spouse.

While each of these hardships might not independently qualify as "extreme," the aggregation of hardships—the combination of the medical, emotional, psychological, financial, and educational challenges—could collectively meet the extreme hardship standard.

Importance of Aggregation of Hardships in Waiver Applications

The aggregation of hardships is a critical concept for waiver applications because it allows applicants to present a more comprehensive and compelling case. Instead of focusing on a single, potentially insufficient hardship, applicants can provide a fuller picture of how various factors intersect and amplify the impact on the qualifying relative.

Strategies for Presenting Aggregated Hardships

To effectively present aggregated hardships in a waiver application, consider the following:

1. Document All Types of Hardships: Provide detailed evidence of all potential hardships, including medical reports, psychological evaluations, financial records, affidavits, and expert opinions.
2. Explain the Interconnected Nature of Hardships: Clearly articulate how different hardships are interconnected. For example, explain how financial hardship could limit access to necessary medical care or how emotional distress could exacerbate a pre-existing psychological condition.
3. Use Expert Testimony: Where possible, provide expert testimony (e.g., from doctors, psychologists, financial analysts) that explains how the combination of hardships would significantly impact the qualifying relative.
4. Present a Legal Brief: A well-structured legal brief can help clarify the aggregation of hardships and guide the adjudicator in understanding how the cumulative effect meets the extreme hardship standard.

The concept of aggregation of hardships allows immigration authorities to take a holistic view of the difficulties that a qualifying relative would face if their loved one is denied entry or removed from the United States. By presenting a comprehensive and aggregated picture of the hardships involved, applicants can increase their chances of meeting the "extreme hardship" standard required for certain waivers. Consulting with an experienced immigration attorney can be invaluable in effectively presenting and arguing an aggregated case for extreme hardship.

Conclusion

Establishing "extreme hardship" in immigration cases is challenging and requires a thorough presentation of the applicant's circumstances and supporting evidence. Most I-601 waivers are denied because the officer is unconvinced that an extreme hardship exists. If your I-601 is denied, you should try again. Many waivers are denied on the first attempt. It is advisable to seek assistance from an experienced immigration attorney who can help build a strong case by gathering the necessary documentation, presenting compelling arguments, and guiding the applicant through the complexities of the immigration process.