Extreme Hardship and the 601 Waiver: Can I Avoid Deportation?
If you are an immigrant who has been illegally living in the United States for more than one year, you may become a legal resident after leaving the country and then serving a 10-year reentry ban. Individuals claiming extreme hardship from deportation or barred reentry may apply for what is known as a "601 waiver" and avoid the 10-year banishment rule.
The U.S. Citizenship and Immigration Services (USCIS) bases its extreme hardship decision on the needs of the individual's immediate family members. Although obtaining a waiver of grounds of inadmissibility will help defer deportation while you adjust your immigration status, there is no guarantee that you will be able to obtain permanent legal residence.
Waiver of Grounds of Inadmissibility
Immigrants are considered inadmissible if they lack legal status and have been in the U.S. for more than one year. Anyone who is inadmissible cannot adjust immigration status, obtain a visa, enter the country, and may be deported if they cross the border. However, there are exceptions to this rule.
A foreign national who is denied admission into the U.S. may file a 601 waiver. It is set aside for cases in which the deportation or barred re-entry of that individual would cause "extreme hardship" to a "qualifying relative." Determining one's qualification for a waiver requires an understanding of how the USCIS defines these terms.
A qualifying relative for cases involving unlawful presence would include a citizen or legal resident spouse or parent, according to U.S. immigration law.
The common effects of deportation - such as job loss, the uprooting of family, and even separation of parents from small children - are considered "typical" hardships, even if those outcomes cause plenty of grief for the immigrant's family members. A hardship would be considered "extreme" only if it was unusual or beyond that which one normally would expect from a deportation or barred re-entry.
Extreme Hardship Waiver Eligibility
Eligibility is not clearly defined by statute, but the USCIS categorizes four levels of arguments that might qualify an individual for a 601 waiver, Level 1 being the strongest and Level 4 being the weakest. Generally, USCIS officials are looking for at least one Level 1 argument or several lower-level arguments in order to grant a waiver. The following are examples of each level:
- Level 1: Relative has a major medical issue and cannot safely travel abroad, making it necessary for the alien to remain in the U.S. to care for the relative; alien's country is in a state of active war
- Level 2: Relative has a serious medical condition that makes moving abroad very difficult, and needs the alien's help; alien's country is on the verge of a major political upheaval
- Level 3: Relative has a significant condition making it difficult to move out of the country; alien's home country has an extremely poor economy
- Level 4: Relative would not be able to pay debts by moving abroad; relative's parent's are aging
Those who believe they qualify for a waiver are required to file an Application for Waiver of Grounds of Inadmissibility and pay the filing fee.
Waiver for Criminal Grounds or Immigration Fraud
A 601 waiver can also be used for inadmissibility based on criminal grounds. The following criminal grounds are considered an acceptable use of this form by the USCIS:
A crime involving moral turpitude
A controlled substance violation comparable to a single offense of simple possession of 30 grams or less of marijuana
Two or more convictions, other than purely political ones, for which the total sentences were five years or more
Unlawful commercialized vice whether or not related to prostitution; and
Certain aliens involved in serious criminal activity who have asserted immunity from prosecution
Immigration fraud may also be forgiven through a 601 waiver as long as the fraud was not classified as a "marriage fraud." In order to qualify for this waiver, the applicant must either be a qualifying U.S. citizen or a relative of a lawful permanent resident, or the petitioner would experience extreme hardship if denied admission. If neither of these apply, victims of domestic abuse may still qualify for a waiver on this ground.
Other Forms of Relief from Deportation
Besides the waiver, there are other forms of relief from deportation that may benefit individuals with dependent children:
- Victims of Domestic Abuse: The Violence Against Women Act grants legal permanent residency to victims of domestic violence who cooperate with police to help prosecute their abuser. See "Violence Against Women Act: Visas for Battered Spouses" for more details.
- Certain Individuals Brought to the U.S. as Children: Deferred Action for Childhood Arrivals is a policy allowing qualified individuals who were brought to the U.S. as children to avoid deportation and obtain temporary work authorization. See "What is Deferred Action for Childhood Arrivals?" for more information.
Since there are several pieces of evidence that must be submitted with a 601 waiver, consider meeting with an immigration attorney if you believe your deportation would cause extreme hardship for a qualifying relative. To learn more about obtaining relief from deportation, see "Avoiding Removal" and other Deportation articles on FindLaw.