FAQ - Extreme Hardship and I-601 Waivers of Inadmissibility

Have you or your spouse have been removed or refused entry from the United States, and been told returning is not permitted, even though you both still hope to plan a life together? Or have you applied for a K-1 visa for your fiancé or an immigrant visa for your family member, and the application was denied because your relative is inadmissible? If these apply to you, you need to file a I-601 Waiver of Inadmissibility to allow you to finalize your fiancé visa or green card application and return to the United States.

What is Inadmissibility?

Someone who has been found inadmissible to the United States is forbidden from entering or being present in the United States. The period of inadmissibility can vary and is known as a “bar.” There are 3-year, 10-year, and permanent bars. Which bar you receives depends on the situation at hand. There are a wide variety of reasons one can be barred, including criminal history, prior fraud and misrepresentation, unlawful presence in the United States, and certain health conditions among others. The grounds for inadmissibility are broad and are detailed in the US Immigration and Nationality Act.

What are waivers of inadmissibility?

A waiver of inadmissibility is a decision that overturns a bar issued by a US Consulate . If you are inadmissible and apply for an immigrant or fiancé visa, the US Consulate will refuse the application and instruct you apply for an I-601 waiver to continue pursuing permanent residency or a fiancé visa. Once the I-601 waiver is approved, you can continue processing your fiancé or immigrant visa application with the Consulate.

Can an inadmissible person always apply for a waiver?

No, not always. There are a few situations that prohibit applying for a waiver at all. These apply to, among others, known drug smugglers, convicted murderers, those who have made false claims of US citizenship, and those who attempt to illegally re-enter the United States after being ordered removed. Before proceeding with a  waiver application, it is crucial to evaluate your specific ground of inadmissibility to ensure you qualify.

In addition, I-601 waivers are only available to the direct relatives of US citizens or green card holders. Direct relatives include spouses, parents, sons or daughters of US citizens or green card holders.

Why do I need a waiver?

If you have been found inadmissible, your application for an immigrant or fiancé visa, will not be able to be processed until your I-601 waiver application is approved. A waiver will allow you to once again pursue these visas.

Who can apply for a waiver?

I-601 Waivers for Grounds of Admissibility are available for visa or permanent residency applicants who are the direct relatives of US citizens. These “qualifying relatives” include spouses, parents, sons or daughters of US citizens or legal permanent residents. It is not possible to apply for a I-601 waiver if you do not have a qualifying US citizen relative. Applicants for K, V or immigrant visas may apply for I-601 waiver applications, if needed.

What is a qualifying relative?

“Qualifying relative” is a term that you may see when dealing with inadmissibility. Qualifying relatives for I-601 waivers are the spouses, parents or children of US citizens or green card holders. 

What is extreme hardship?

Extreme hardship is understood as any hardship which goes beyond what one would normally expect when loved ones are separated. This means that there must be a qualifying relative to apply for the waiver, and that the qualifying relative would experience hardship that can be considered extreme.

What counts as “extreme” is not strictly defined and can be highly subjective. USCIS outlines five general categories when deciding if hardship rises to the level of extreme: family ties and impact; social and cultural impact; economic impact; health conditions and care; and country conditions.

Two scenarios are considered when discussing extreme hardship: hardship experienced by the qualifying relative when staying in the United States, and hardship experienced if the qualifying relative were to leave the United States to be with the inadmissible person.       

Can someone other than the qualifying relative be considered for extreme hardship?

Generally, no. There are certain situations where the person who is inadmissible can claim extreme hardship for themselves, but generally only in the context of the Violence Against Women Act, where there is abuse present. Otherwise, USCIS is only interested in extreme hardship faced by a qualifying relative.

What waiver do I need?

If the inadmissible person has a qualifying relative as described above, and if that person is now seeking an immigrant visa from a US Consulate, then the I-601 application may be the way forward. This application attempts to overturn a bar and allow the person with that bar to proceed with applying for an immigrant visa.

If the inadmissible person has also been deported or ordered removed from the United States, that person will be restricted from attempting to re-enter the United States for a certain period of time, separate from the bar of inadmissibility. In this case, the I-601 application may be filed with a so-called Form I-212 Application for Permission to Reapply for Admission. This is important, because the I-601 does not apply to restrictions due to having been deported, and the I-212 does not overturn a bar due to inadmissibility. Each application would need to be separately filed.

For example: your spouse was found inadmissible when attempting to enter the US due to committing immigration fraud and is then ordered removed at the airport and told to leave. Your spouse will then have a bar for the fraud, and a separate bar for being removed from the United States. In this case, filing both an I-601 Waiver and an I-212 Waiver would be necessary.

What is the difference between I-601 and an I-601A waiver applications?

The I-601 must be applied for from outside the United States. The I-601A can be applied for from within the United States and is reserved for those who are inadmissible solely due to having overstayed a prior visa.

What is the processing time for a I-601 Waiver Application?

According to USCIS’s most recent statistics in August 2023, 80% of all I-601 applications are processed within 21.5 months. Similarly, 80% of all I-212 applications are processed within 2r.t months.

Can I expedite my waiver application?

Rarely, but it is possible. In very limited circumstances, an applicant for an I-601 Waiver Application can be granted expedited processing. This decision is entirely up to the officer adjudicating the application, and previous decisions from USCIS direct that there must be time-sensitive and compelling reasons for the request to be expedited. In short, there must be an exceptional, clear reason for expediting the application, and requests for expedited processing are generally difficult to get approved.

How much does it cost to file an I-601?

The current USCIS filing fee for an I-601 is $930. Legal fees from Adomat Immigration depend on the specific details of the case.

What are the chances of my waiver being approved?

Ultimately, one’s chances are dependent on the strength of the case at hand, and USCIS officers are not required to approve even properly prepared applications – the only way to assess the strength of the case at hand is to consult with an attorney.

However, a combination of estimates from experts and statistics from USCIS indicate that there is a roughly 80% approval rate for I-601 applications.

How long is a waiver valid?

A waiver, if granted, is valid indefinitely, even if you do not go on to obtain an immigrant visa. This is only true for the current state of inadmissibility: if you obtain the waiver, and are found inadmissible again, then you will need to pursue a new waiver.

If you have questions or would like to discuss a potential I-601 waiver application with our firm, please feel free to visit our website at www.adomatimmigration.com to schedule a consultation. Many thanks to Kaelan Hale, Paralegal, for his assistance in drafting this article.