There is no formula for determining whether or not an I-601 will be approved-each waiver is read and considered by a consular officer, and that person delivers a ruling that depends on his or her interpretation of the evidence and myriad other factors.
The key in gaining approval of an I-601 is demonstrating extreme hardship to the U.S. citizen spousal petitioner. The term “extreme hardship” is important—any situation in which one spouse in a couple is prohibited from the country is one that is disruptive, painful, and difficult. But in the case of an I-601, the spousal beneficiary in question is an adult who violated U.S. law by remaining in the country for over one (1) year unlawfully. The I-601 is a request for forgiveness and a pardon for this crime, which is justified by the extreme hardship removal would cause to the petitioner, the U.S. citizen.
The law continues to evolve, and candidates for an I-601 should consult an attorney for the best and most relevant guidance. If you are unsure of the strength of your case or want to know what options you have if you fear that your case is weak, contact our Nevada Immigration Law Offices for a free consultation.
Below is a Discussion of Some Factors that Impact Approval of the I-601 Waiver:
“Petitioner” – a native-born or naturalized U.S. citizen, married to the beneficiary
“Beneficiary” – an adult who has resided unlawfully in the country for at least one year
Other Considerations (in rough order of importance)
Beneficiary’s Entrance to the United States
The strongest I-601 candidates are individuals who came to the country unlawfully when they were very young, being brought here by family or parents. This diminishes the severity of the crime (materially, but not legally) because the person committed it as a minor. Also, such a person will have resided in the United States for a longer period of time. The strongest I-601 candidates are those beneficiaries who have resided in the United States for at least ten years. This is not a necessary condition, but it greatly strengthens a case.
Economic Status of the Couple
If the beneficiary earns a substantial amount of the couple’s income, it is easier to show the economic necessity of the beneficiary. The best cases are those in which the beneficiary is the primary wage earner, since in these cases the beneficiary’s absence would cause extreme economic hardship to the petitioner. Cases in which the beneficiary does not work can be and have been approved, but for these cases it is more difficult to establish extreme economic hardship.
Health of Petitioner
If the petitioner has a medical, psychological, or other condition that makes the beneficiary a necessary element of care or support, it is easier to demonstrate that removing the beneficiary would cause extreme hardship to the petitioner. Extreme medical hardship can also be shown if the petitioner has a severe medical condition and medical benefits in the U.S. which would not be available in the country where the beneficiary lives. Cases in which the beneficiary provides important medical benefits to the petitioner through his/her work are especially strong.
In considering an I-601, officers will take into account the impact removal of the beneficiary would have on the petitioner’s children or other dependents (e.g. elderly parents, ill relatives, etc). Extreme emotional hardship is easier to demonstrate if the petitioner can show that the removal of the beneficiary would substantially impact the petitioner’s ability to support his/her dependent(s).
If these dependents have medical, psychological, or other conditions that place extraordinary demands on the petitioner, the claim grows even stronger.
Beneficiary’s Criminal Background
All I-601 applicants are considered to have committed the crime of entering the U.S. without a visa—they are people who have violated Unites States immigration laws. Beyond that, beneficiaries who have a clean criminal record make stronger applicants. The officers look for evidence of “good moral character” in judging who shall be granted a waiver, and those applicants who have shown respect for the law since their arrival in the country and who have made valuable contributions to their community are looked upon favorably. Serious crimes on the part of the beneficiary would likely result in an automatic denial of the waiver. Many aliens are not aware of the following restriction: a person who accrues one year of unlawful presence in the United States after 1996 and then leaves and re-enters becomes ineligible for an I-601 waiver.
The courts have ruled that officers should take into account the importance of social, community, and family ties in considering an I-601. A couple with a long history in one area can show that the removal of the beneficiary would impact these social ties negatively. If the immediate and/or extended family of one or both of the spouses resides in the United States (especially nearby), removal would be further disruptive. Also, a couple can argue that denial of an I-601 would force the family to relocate outside the country, where it would have to begin from scratch forming these community ties.
Birthplace of Petitioner Petitioners
Those who were born in the United States make the strongest case due to their life-long ties to the country. Naturalized U.S. citizens can and do succeed as petitioners, but in this case the longer the person has been naturalized, the better.
The Couple’s Relationship
Proximity of age, length of marriage, and previous relationships are minor factors in I-601s. A couple with a wide age difference is unusual and therefore suspect. A long marriage shows long-term interdependence that would be disrupted by removing the beneficiary. In the context of a recent marriage, previous relationships (namely divorces) undermine the case slightly.