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Integrity Legal

Posts Tagged ‘I-601 Waiver’

5th February 2010

In cases where a US visa application is denied it may be possible to remedy the visa denial by applying for a waiver if the denial was based upon a legal grounds of inadmissibility. This type of waiver is called an I-601 waiver. At one time, if a United States visa applicant was infected with the Human Immunodeficiency Virus (HIV), then they would be denied a visa visa based upon this factor alone, if no other issues existed that called for a denial. However, recently the United States Immigration authorities have changed this rule. To quote a document promulgated by the American Immigration Lawyers Association (AILA):

“[I]nfection with the Human Immunodeficiency Virus (HIV) is no longer a ground of inadmissibility. If you have the HIV infection, you are no longer inadmissible to the United States, and are no longer required to file Form I-601 because of your HIV infection. As part of the revisions to Form I-601, any reference to HIV infection in the form and the instructions were removed.”

This is not the only rule change that has been recently promulgated as the filing instructions themselves have recently changed in order to more accurately reflect the proper filing locations as well as other regulatory modifications.

“In addition, USCIS… announced that there are revised filing instructions and addresses for applicants filing Form I-601, Application for Waiver of Ground of Inadmissibility. The change of filing location is part of an overall effort to transition the intake of benefit forms from USCIS local offices and Service Centers to USCIS Lockbox facilities. By centralizing form and fee intake to a Lockbox environment, USCIS can provide customers with more efficient and effective initial processing of applications and fees.”

The “lockbox” method is currently employed when processing immigrant visa applications such as the IR-1 visa and the CR-1 visa. This allows USCIS to streamline the application process as all applications are submitted to one location. K1 visa applications as well as K3 marriage visa applications are submitted directly to the USCIS Service Center with appropriate jurisdiction.

In situations where an I-601 waiver application is submitted overseas, the application is usually submitted at the US Embassy or US Consulate where the visa is denied. This allows the Consular Officer to make a recommendation regarding the waiver application. Those interested in US visa waivers should note that only licensed United States attorneys or accredited representatives are allowed to represent clients before both the United States Embassy and the United States Citizenship and Immigration Service (USCIS). That being said, only an attorney is entitled to charge fees for such services as accredited representatives are usually not-for-profit agencies who only charge a nominal fee (if anything) when assisting immigrants. Those who are not licensed to represent clients is US Immigration matters cannot charge a fee to represent clients in Immigration proceedings pursuant to US law.  For more information please click here.

For more information about American visas and the remedies available upon application denial please see: US Visa Denial.

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14th January 2010

Virtually all American news media outlets are reporting on the devastation and destruction brought on by the Earthquake in Haiti. We at Integrity Legal would like to take this opportunity to extend our heartfelt sympathies to all of those who have been adversely impacted by this tragedy. For those of Haitian descent or nationality currently living in the United States, the Earthquake has also had an impact upon Department of Homeland Security (DHS) policy. In a recent press release, the Deputy United States Press Secretary Matt Chandler made the following statement:

“Department of Homeland Security Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement Assistant Secretary John Morton today halted all removals to Haiti for the time being in response to the devastation caused by yesterday’s earthquake. ICE continues to closely monitor the situation.”

We at Integrity Legal would like to let the United States Department of Homeland Security as well as Secretary Napolitano know that we appreciate their compassion in this matter as the situation places that agency in a difficult position.

When an alien in the United States is removed, they are generally sent back to their country of origin. In the case of Haitians they are sent back to Haiti, but sending a deportee back to Haiti under the current circumstance would, at the very least, be considered by most to be a rather callous initiative. By suspending removals, DHS has shown that they can respond to a difficult situation in a decisive and compassionate manner.

Removal from the United States can occur as a result of deportation proceedings in United States Immigration Court or expedited removal can occur at a United States port of entry after the finding by a Customs and Border Protection Officer that the prospective entrant should be removed from the United States.

Depending upon the method of removal, the alien will be inadmissible to the United States for a statutorily prescribed period of time. However, there may be a remedy to the issue of inadmissibility either through use of an I-601 waiver or an I-212 application for advance permission to reenter the United States.  Those who have previously been removed from the US may face even stiffer penalties for trying to reenter after removal if they do not seek a waiver or advance permission to reenter.

For those who have been previously removed from the United States and wish to seek reentry, it would probably be wise to contact a licensed US Immigration lawyer in order to obtain advice about how best to proceed in attempting to obtain US Immigration benefits.

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16th December 2009

The K1 visa was designed to provide a means and method for foreign fiancees to travel to the United States of America in order to be reunited with their US Citizen loved one. It is commonly referred to as a Fiancee visa because that is this visa’s intended use. The major upside of the K1 visa is the fact that it has the fastest processing time when compared to marriage visas such as the K3 visa and CR1 visa. However, the K1 visa does require that the applicant adjust status to lawful permanent residence after entry in the United States. Generally, this process takes approximately 6 months from application submission until final adjustment decision.

An I-601 waiver is necessary for those who have been found inadmissible to the United States based upon one of the legal grounds of inadmissibility found under the provisions of the United States Immigration and Nationality Act. In Thailand, the two most common grounds of inadmissibility are the result of factual findings that the applicant engaged in prostitution within 10 years prior to the application’s submission or a finding that the applicant overstayed in the United States while present on a prior US visa.

Many pose the question: if My Thai fiancee is approved for one of the aforementioned waivers, will she need to ever deal with the issue again? The short answer: no. Once an I-601 waiver application is approved it is binding upon later proceedings. Therefore, if the Office of the United States Citizenship and Immigration Service (USCIS) in Bangkok approves a waiver application, then that holding based upon those facts will be respected by a local USCIS office adjudicating all later matters that have to do with the alien’s presence in the United States.

An example of how this can play out: a Thai fiancee is denied for a K1 visa based upon a legal grounds of inadmissibility, the case is forwarded to USCIS Bangkok pursuant to an application for an I-601 waiver, the I-601 waiver application is approved, the case is forwarded back to the Consulate at the US Embassy, the US Consulate issues the visa, the applicant travels to the USA, is lawfully admitted, marries the American Citizen fiance, and applies for adjustment of status. In this scenario, the prior waiver would be recognized during the adjustment proceedings and therefore the issue would likely not be re-visited. The major upside to a waiver being approved overseas is the fact that it provides certainty as to how the process will move forward and may also be beneficial because waiver issues will be put to rest outside of the jurisdiction in which the American Citizen resides.

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7th December 2009

Recently, this author was asked about whether or not Thailand and the USA share an extradition Treaty and, if so, what are the ramifications of an American criminal warrant or conviction for those living in Thailand.

Extradition, “is the official process whereby one nation or state requests and obtains from another nation or state the surrender of a suspected or convicted criminal.”

Thailand and the United States currently have an Extradition Treaty. It is similar to the US-Thai Amity Treaty in that it is bilateral, but the subject matter of the Amity Treaty is very different compared to that of an Extradition Treaty. An Extradition Treaty provides a framework whereby the United States authorities can request that a suspect be handed over to the American authorities. That being said, for more information on specific legal citations please see the relevant Wikipedia page.

As Thailand and the United States share an Extradition Treaty, a person with American Criminal Warrants or American Arrest Warrants could be subjected to United States jurisdiction while in Thailand or while traveling between Thailand and another country. Even if not arrested in Thailand, it is always wise for those with criminal warrants or convictions to deal with the matter so that it can be “put to rest.” It is never wise to run from one’s criminal problems.

For those with a prior criminal conviction or pending criminal warrants the issue of passport re-issuance can be critical. The United States Embassy in Bangkok, Thailand and the United States Consulate-General in Chiang Mai assist with new passport re-issuance through their American Citizen Services Sections. If one is currently wanted in a US jurisdiction, then the Consular Officers at American Citizen Services are unlikely to issue a new passport or travel document until the American (or foreign national)  in question returns to the United States to deal with the pending matter.

Of further importance to many non-US Citizens with pending American criminal warrants is the effect of criminal proceedings upon one’s ability to acquire United States Immigration benefits (most importantly, a US visa). If one has an arrest or conviction for domestic violence, this fact could have a major impact upon one’s ability to petition for a K1 visa due to the provisions in the Adam Walsh Act and other relevant US law. Further, if one has a criminal conviction in the US, the underlying facts of the case could lead to a later finding of inadmissibility by a Consular Officer adjudicating a later visa application. In some cases, an I601 waiver may be available for those who are found to be inadmissible. Consulting with an attorney experienced in Immigration matters could provide insight regarding the Immigration ramifications of an American criminal conviction.

An American attorney in Thailand (or southeast Asia) could be of assistance to a client by acting as a liaison with American authorities or with other American attorneys. Simply providing legal advice regarding the impact of one’s prior choices could be a boon to some as well. No attorney can assist in evading US law, but a lawyer licensed in the United States could assist by providing legal counsel and advice regarding the ramifications of a client’s previous decisions.

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31st October 2009

As reported previously on this blog, HIV is to be taken off of the list of communicable diseases which can cause an Immigrant to be deemed inadmissible to the United States of America. At the time of this writing, anyone who has HIV (Human Immunodeficiency Virus) is not admissible to the United States. This means that those infected with the virus must obtain an I-601 waiver of inadmissibility before they will be allowed to enter the United States. Under the new rule, this will no longer be the case.

To quote a document, provided courtesy of AILA, promulgated by the Department of Health and Human Services:

As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration.

As a result of this rule change, it is highly likely that Embassy mandated medical examinations will be greatly altered as it will no longer be necessary for the Embassy-approved doctors (sometimes referred to as civil surgeons) to test prospective immigrants for HIV.

This rule change reflects the new policy of the United States government regarding HIV. Basically the Center for Disease Control and the authorities at the Department of Homeland Security no longer consider HIV a “communicable” disease as defined in the relevant provisions of  Immigration and Nationality Act. To further quote the aforementioned document:

While HIV infection is a serious health condition, it is not a communicable disease that is a significant public health risk for introduction, transmission, and spread to the U.S. population through casual contact.

Please note that this rule has not taken effect and until it does HIV is still considered a communicable disease in cases involving inadmissibility.

Although many laud the promulgation of this rule, there are those, particularly in the LGBT community who feel that the current Administration is not doing enough to provide immigration benefits to same sex couples. Many view this rule change as a “half measure” designed to placate advocates for gay rights as HIV has a major impact upon the gay and lesbian community.

Although this rule change will effect those with HIV who wish to enter the USA, it does not effect same-sex bi-national couples who cannot obtain US Immigration benefits for a foreign partner based upon the current federal laws which do not recognize same-sex marriage. There are many who feel that the rescission of this rule regarding HIV infected immigrants falls short of full immigration equality for all.

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23rd October 2009

Recently the United States Citizenship and Immigration Service (USCIS) announced that a revised form has been issued for those who wish to file for an I-601 Waiver. An I-601 waiver is a waiver of legal grounds of inadmissibility under the United States Immigration and Nationality Act. An alien is found inadmissible if they meet the elements of inadmissibility under the act. Common grounds of inadmissibility among applicants in Thailand are overstay, prostitution, Crimes involving moral turpitude, and health related grounds. If a finding that one of these grounds exists is made by the Consular or Immigration officers, then the applicant must seek an I-601 waiver before they will be entitled to enter the United State lawfully.

In recent days, USCIS has been revising some of the forms that they will accept in connection with certain immigration matters. For example, USCIS recently announced that they will only be accepting an updated version of the G28 Notice of Attorney Appearance. Those who have already filed applications for Immigration benefits before this update comes into effect will not need to submit any new forms as the service will continue to recognize the old forms in an effort to seamlessly transition from the old forms to the new. These efforts seem to be an attempt to streamline the, somewhat complicated, administrative aspects of the US Immigration application process. To quote directly from the USCIS press release:

USCIS has revised Form I-601, Application for Waiver of Grounds of Inadmissibility (Revision Date 04/06/09 N, OMB Expiration Date 04/30/11) to make it easier for applicants to complete. Applicants may now select from a list of grounds of inadmissibility on the form itself and mark all which apply to them in order to request a waiver. In addition to the list, the form includes a section where applicants can describe, in their own words, why they believe they are inadmissible. In the previous edition of Form I-601, information about grounds of inadmissibility could only be found of the form’s instructions.

We applaud the efforts on the part of the Service to make this process less complicated and more straightforward. For those interested in submitting a successful I-601 waiver application, it should be remembered that in most cases involving an I-601 waiver, the applicant(s) must show that to deny the waiver would result in an “extreme hardship” to a United States Citizen or Lawful Permanent Resident. This can be a difficult legal obstacle to overcome which is why it may be wise to retain an immigration lawyer to assist with the preparation and submission of such a petition.

Unlike the United States Embassy in Bangkok, which only has jurisdiction ovr the Kingdom of Thailand. The local USCIS office in Bangkok has administrative jurisdiction over most of Asia. Therefore, I-601 waiver applications filed in connection with a K1 visa, K3 visa, or CR1 visa sought from Asia could be submitted at USCIS Bangkok.

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12th September 2009

Every year, many people from all over the world enter the United States of America and remain temporarily. As previously mentioned on this blog and on this website, there are many different types of non-immigrant visas for those who wish to go to the United States and remain for a short period of time or for a particular endeavor which has a definitive chronological endpoint.

United States Tourist visas are a prime example of a non-immigrant category visa that can grant the applicant a long duration of stay. This type of visa is meant for those entering the USA for recreational purposes who intend to leave after their vacation has ended. US Student visas are meant for those who are traveling to the United States to engage in a course of study. Finally American Exchange visitor visas are designed for those who wish to travel to America to live and/or work in a travel exchange program.

With any of the aforementioned visa categories the underlying visa’s validity has an end date. When the non-immigrant visa’s expiration date arrives, the applicant must either depart the United States or seek an extension. An US visa extension is similar to a Thai visa extension in that the applicant must apply for the extension while in the country and if granted, the applicant may remain for longer than the initial visa’s validity.

Those who do not depart or extend are considered in violation of their visa as they are overstaying its validity. In US Immigration circles, the alien is deemed to be in the United States “on overstay.” The longer a violator remains in the United States the higher the probability that the violator will be caught and either removed from the country or given the option to voluntarily depart.

After departing the United States due to overstay, the alien may be deemed inadmissible depending upon the duration of the overstay. Further, the duration of the bar on reentry depends upon how long the violator overstayed. The alien could be subjected to a 10 year bar if he remained in the US without lawful status for a long enough period of time.

In cases involving inadmissibility based upon overstay it may be possible to obtain a waiver of the inadmissibility. The applicant will need to file an I-601 waiver in order to clear up the overstay issue because if the waiver is granted the applicant will be allowed to reenter the country on either an immigrant or non-immigrant visa.

If the alien was removed from the United States because of an overstay, it may be necessary to file an I-212 application for permission to apply for reentry. That being said, either application is approved only at the discretion of the adjudicating officer at the United States Citizenship and Immigration Service.

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7th July 2009

Most United States Visas that process through the US Embassy in Bangkok, Thailand proceed in an efficient and uneventful manner. The Officers in the US Consular Section have a large caseload and generally do their job in a professional and diligent manner. This being said, some Immigration and visa cases are delayed. The term used in American Immigration circles when a visa application is set aside for further review is: administrative processing.

Administrative Processing and the 221(g)

Technically a 221g denial and request for more evidence could be classified as “administrative processing.” In practice, most cases that are in administrative processing have been red flagged because there is a suspicion of immigration fraud or there is some aspect of the case that the consular officer feels warrants further investigation. In cases such as this the application can be delayed for weeks or months until a final determination is made.

Does Administrative Processing mean a US Visa is Denied?

In some cases administrative processing can occur after a visa application has been denied and needs to be sent back to USCIS to close the case. In the case of a Fiance visa or marriage visa, this would likely only occur upon a factual finding by the consular officer that there is not a bona fide relationship underlying the visa application.  This type of visa denial is very rare in US Family Immigration matters.  However, a Consular officer who is suspicious about a particular visa application could put the case in administrative processing and ask for further documentation. The fraud unit would likely review the application further in order to ascertain the visa application’s merits.

There are other situations where a visa application could go into administrative processing. Of particular note are situations where beneficiaries have been present in the United States previously and have done things that may raise  questions about what they were doing while stateside. A good example would be someone in the United States on a visa without work authorization who was working. This factual scenario would probably cause a case to go into administrative processing because the Consular officers would want to know more details about the applicant’s previous experience in the USA.

Administrative Processing is something many applicants seek to avoid and one of the best methods of doing so is to have a well prepared application. Further, Consular Officers are very well trained when it comes to picking up on cues that an application might be fraudulent. For this reason, we highly recommend that the best way to stay out of administrative processing is to file a bona fide application. Honesty is always the best policy when dealing with the United States Government and the US Embassy Thailand is no exception.

If a case should be denied because the applicant was deemed legally inadmissible, then an I-601 waiver may be sought.

For more information please See K-1 Visa Thailand or K3 Visa Thailand.

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2nd July 2009

On July 2, 2009 the Center for Disease control formally proposed that HIV be dropped from the list of “communicable diseases” that result in a legal finding of inadmissibility. The following is quoted from the preamble of the proposal to change the rule:

The Centers for Disease Control and Prevention (CDC), within the U.S. Department of Health and Human Services (HHS), is proposing to revise the Part 34 regulation to remove “Human Immunodeficiency Virus (HIV) infection” from the definition of “communicable disease of public health significance.” HHS/CDC is also proposing to remove references to “HIV” from the scope of examinations in its regulations. Aliens infected with a “communicable disease of public health significance” are inadmissible into the United States under the Immigration and Nationality Act (INA).

This proposed rule change is subject to a comment period and is not yet finalized, but if it becomes final it will do away with the need to obtain an HIV waiver for a prospective immigrant infected with HIV.

For more information please click here

(This content is for educational use only. It does not constitute legal advice. No attorney/client relationship is created between the author and reader of this post.)


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2nd July 2009

A Legal Ground of Inadmissibility is a provision created by Congress that bars certain immigrants from entering the United States of America. If a prospective immigrant is found to have certain types of communicable disease then they will be barred from entering the United States without first obtaining a Waiver of Inadmissibility.

Waivers of inadmissibility for those infected with Human immunodeficiency virus (HIV) are different than some other legal grounds of inadmissibility because the burden of proof is not the same. In order to obtain a normal I-601 waiver of inadmissibility in most cases the US Citizen or lawful permanent resident petitioner must show that failure to grant the waiver would result in an “extreme hardship,” for him or her. In the case of an HIV waiver, a showing of “extreme hardship” is unnecessary. Instead, one must show that the immigrant with HIV will not become a ward of the United States. Much like the I-864 affidavit of support for Immigrant visas or the I-134 affidavit of support for a fiance visa, the petitioner must show that the beneficiary will not become a “public charge.”

Recently, President Obama has made it clear that he intends to put the wheels in motion to have legislation passed that would repeal the provisions making those with HIV inadmissible to the United States. Obama was recently quoted as saying,

“The rationale for maintaining HIV infection as an excludable condition is no longer valid based on current medical and scientific knowledge and public health practice, and experience which has informed us on the characteristics of the virus, the modes of transmission of HIV, and the effective interventions to prevent further spread of the virus… My administration is committed to rescinding the discriminatory ban on entry to the United States based on HIV status. The Office of Management and Budget just concluded a review of a proposal to repeal this entry ban, which is a first and very big step towards ending this policy.”

Obama has made many recent statements regarding Comprehensive Immigration Reform and the Defense of Marriage Act. If Obama fulfills his campaign promises regarding these issues it will have tremendous ramifications on United States Immigration law. The push to have HIV taken off of the list of communicable disease has its opponents, but it is probable that legislation that would allow those with HIV to enter the USA, without a waiver, will be passed sometime in the next one to two years.

For more information about US Family Visas from Thailand Please see: US Immigration lawyer Thailand or K-1 visa

(Nothing contined herein should be mistaken for legal advice as it is intended for the purpose of education only. No lawyer-client relationship is to be implied to exist between the author and any reader of this posting.)

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