Recently, I was in Washington DC and had the privilege of meeting with, and listening to, USCIS officials. A hot topic of discussion was the I-601A waiver adjudication process.
Many immigration attorneys feel as though it is more difficult to have an I‑601A waiver approved than it is to have a traditional I-601 approved, and we wanted to know why. The standard for both is the same – both must show “extreme hardship” to a qualifying relative, yet it seems that extreme hardship has been harder to demonstrate for an I-601A than for an I-601.
As a reminder, I-601A waivers are provisional waivers for people who only have the “unlawful presence” ground of inadmissibility. The waiver is decided before they have to return to their home country for their immigrant visa interview.
An I-601 waiver is the traditional waiver and can be used to forgive various grounds of inadmissibility, including criminal grounds, fraud and misrepresentation, certain kinds of human smuggling, and other violations.
I-601s can be filed by someone who is in the United States seeking Adjustment of Status or they can be filed by someone outside of the United States as part of their immigrant visa application process. The I-601A provisional waiver was created to allow families with only one immigration violation to remain in the United States together longer and to have some certainty in the eventual resolution of their case.
USCIS emphasized that the extreme hardship standard remains the same for I-601As and I-601s. However, they did discuss how it may be more difficult to demonstrate the extreme hardship in an I-601A because the hardship hasn’t yet come to pass.
In both an I-601A and I-601 waiver, you have to show that the qualifying relative (often a U.S. citizen spouse) would suffer extreme hardship in two scenarios: if they remained in the U.S. without their spouse and if they relocated to their spouse’s home country.
For an I-601A waiver, the U.S. citizen must imagine what life would be like without their spouse with them in the United States.
They don’t have evidence to show what life is like without their spouse because that’s not their current reality. The house hasn’t gone into foreclosure, the children haven’t started counseling, the U.S. citizen hasn’t had to take on a second or third job to make ends meet. And because these things haven’t happened, there is no evidence. It’s all speculation, making it much harder to prove future hardship. This makes it difficult for an immigration officer to see the hardship and approve the waiver.
For an I-601 waiver, the spouse is already out of the country and the extreme hardship is happening. The U.S. citizen is often supporting two households – the one here and the one abroad, the childcare expenses have doubled, their mental health has crumbled. And there is evidence of all of these changes for the worst, making it much easier for the immigration officer to see, understand, and approve the I-601 waiver.
So, while the standard of extreme hardship remains the same for both the I-601A and I-601 waiver, it’s important to understand that you generally need to do much more work to demonstrate the extreme hardship in an I‑601A waiver.
An experienced immigration attorney can help you best present the extreme hardship – both current and future – in your waiver case.