I-601

212(a)(6)(E) Smugglers

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212(a)(6)(E) Smugglers

Inadmissibility Series INA 212– Part IV

212(a)(6)(E) Smugglers

Section 212 of the Immigration and Nationality Act of 1952 lists a series of classes of foreign nationals who are inadmissible to the United States. Some classes are complete bars and others allow specific types of waivers of inadmissibility. If you are attempting to enter the Unites States or are already in the United States and you are inadmissible then you will be barred from receiving immigration benefits such as a visa or green card. There are many ways a foreign national may be deemed inadmissible. The three most common ways are when he or she applies for a visa at a US Consulate, attempts to enter the US with a visa or applies for an immigration benefit while in the United States. In making one of these types of immigration applications, an immigration officer can make a determination that the foreign national’s past actions make him or her inadmissible or ineligible for benefits.

If an immigration officer determines that you are inadmissible then you have two options to overcome the determination. You can either challenge the determination of inadmissibility or apply for a waiver of inadmissibility if the law allows. In many cases. challenging the determination of inadmissibility is the only option because the foreign national is either not eligible for a waiver or the law does not offer a waiver.

212(a)(6)(E) Smugglers

In general.-Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.

This section shall not apply in the case of alien who is an eligible immigrant, was physically present in the United States on May 5, 1988, and is seeking admission as an immediate relative if the alien, before May 5, 1988, has encouraged, induced, assisted, abetted, or aided only the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.

How to obtain a determination that the 212(a)(6)(E) Smugglers ground of inadmissibility was incorrectly made.

If you believe that the 212(a)(6)(E) Smugglers determination was made in error in your case, we can help you overcome it.  No matter which US government agency made the inadmissibility determination, each provides a method to dispute the determination, though each has drastically different processing times. We have achieved successful outcomes by petitioning the US Department of State where the determination was made by the Consulate in as little as 2 weeks. CBP quotes turnaround times of as little as 30 days and USCIS will not offer a time frame. In our experience, the more difficult the situation, the longer it will take to get resolved.

Waiver of Inadmissibility for an Immigrant Visa due to 212(a)(6)(E) Smugglers ground of inadmissibility

There are two sections of law which allow a foreign national to apply for a waiver of inadmissibility where he or she is ultimately applying for an immigrant visa or permanent residence (green card).

212(d)(11) provides for an immigrant waiver where the foreign national is an applicant for a family based petition and only helped smuggle a spouse, parent or child; and 212(c) provides a waiver to an LPR returning to the US who helped smuggle a spouse, child or parent. The alien demonstrates extreme hardship to the alien or the alien’s United States citizen, lawful permanent resident, or qualified alien parent or child.

Waiver of Inadmissibility for a Non Immigrant Visa due to 212(a)(6)(E) Smugglers ground of inadmissibility

INA 212(d)(3) – Except as provided in this subsection, an alien (i) 20b/ who is applying for a non immigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General, or (ii) 20b/ who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

If you have been determined to be inadmissible, we can help you overcome the determination or obtain a waiver

Many people who are faced with a inadmissibility determination believe that they will never be able to obtain a waiver or enter the US again. This is simply not true. For almost all types of inadmissibility classes, a waiver is available and there is always an option to challenge the determination. We have successfully helped many clients who were determined to be inadmissible and we can assist you. We believe that with the right approach, there is always a hope to win your case.

If you would like our assistance, please feel free to call us at 305-515-0613 or email us at info@messersmithlaw.com

I-601A Provisional Unlawful Presence Waiver

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On January 3, 2013, the U.S. Citizenship and Immigration Services (USCIS) published a final rule on provisional unlawful presence waivers. I-601A applications may be submitted to USCIS beginning March 4, 2013. This rule allows certain immediate relatives of U.S. citizens who are physically present in the United States to file provisional unlawful presence waivers prior to traveling abroad for consular processing of their immigrant visa applications.

  • Who is Eligible for an I-601A Waiver
  1. You may be eligible for a provisional unlawful presence waiver if:
  2. You are physically present in the United States;
  3. You are at least 17 years of age at the time of filing;
  4. You are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen;
  5. You have an immigrant visa case pending with the U.S. Department of State (DOS), for which you have already paid the immigrant visa processing fee; and
  6. You believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States.
  • Who is NOT Eligible for an I-601A Waiver
  1. You are not eligible for a provisional unlawful presence waiver and your application will be rejected or denied if:
  2. You do not meet one or more of the requirements listed above;
  3. You have a pending Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS;
  4. You are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A;
  5. You have been ordered removed, excluded, or deported from the United States;
  6. You are subject to reinstatement of a prior removal order;
  7. DOS acted to schedule your immigrant visa interview prior to January 3, 2013, even if you failed to appear or you or DOS cancelled or rescheduled the interview on or after January 3, 2013.
  8. You do not establish that the refusal of your admission to the United States would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion;
  9. USCIS has reason to believe that DOS may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence.
  •  If Your I-601A is Denied USCIS is unlikely to initiate removal proceedings or refer provisional unlawful presence waiver applicants to ICE when USCIS approves or denies the waiver request or if the applicant withdraws his or her I-601A application.
  •  Application Process

If you are in the United States and not in removal proceedings, an I-601A provisional waiver application can be made using Form I-601A.  After filing, you will be required to submit to biometrics collection which includes fingerprints and photographing.  After the i-601A is approved, you must depart the United States for an immigrant visa interview abroad.

  • Standard for I-601A Approval

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent.

New I-601 Hardship Waiver Filing Procedure

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Newly Proposed Filing Procedures Will Allow Spouses and Children of US Citizens to File Their I-601 Waiver in the United States

What is an I-601 Hardship Waiver?

Certain classes of foreign nationals are not eligible to immigrate to the United States because of previous immigration violations, the commission of serious aggravated felonies, drug or alcohol abuse, fraud or misrepresentation or for other reasons.  These persons are not eligible to adjust their status to permanent resident (green card) in the United States or obtain an immigrant visa at a Consulate abroad.  The current rule is that they must leave the United States, apply for a hardship waiver and then, if approved, they may re-enter the country.

I-601 Hardship Waiver Standard

Current law requires the foreign national to prove that they have a “qualifying relative,” either a citizen or lawful resident spouse, parent, son, daughter or US citizen fiancé(e), depending on the reason why the waiver is required and that this qualifying relative would suffer extreme hardship if the foreign national is not able to return to the United States.

New I-601 Filing Procedure

The current filing procedure requires the foreign national to leave the United States to apply for the hardship waiver.  Most foreign nationals do not want to leave the United States to apply for this waiver because if their waiver application is denied, they will not be able to return to the US for three years or longer.  President Obama’s new proposed filing procedure would allow spouses and children of US citizens who are in the United States but need a waiver of unlawful presence in order to get a green card to apply for that waiver within the United States.  After securing the waiver, the foreign national will have to leave the US to obtain their immigrant visa at the US Consulate abroad but the risk of being denied the immigrant visa is small so long as your case is handled appropriately by your attorney.

How to Expedite an I-601 Waiver

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Expediting an I-601 Waiver Requires a Showing of Extraordinary Circumstances

USCIS will only exercise thier discretion to expedite a Form I-601 where an applicant presents a compelling and urgent argument which involves time-sensitive reasons.  In extraordinary circumstances, USCIS will exercise discretion to approve a request to expedite adjudication of a Form I-601.  A simple desire to be reunited with family in the United States is not extraordinary.  Extraordinary circumstances which may persuade the USCIS to expedite the I-601 will contain one or more of the following

  • The applicant has urgent and critical medical needs that cannot be addressed in the applicant’s country;An applicant’s family member in the United States has a life-threatening medical condition and has immediate needs related to that condition for the applicant to assist the family member in the United States;
  • The applicant is faced with urgent circumstances related to the death or terminal illness of a family member;
  • The applicant or qualifying family member is a particularly vulnerable individual due to age or disability;
  • The applicant is at risk of serious harm due to personal circumstances distinct from the general safety conditions of those living in the applicant’s country;
  • It would be in the national interest of the United States to have the applicant in the United States (for example, the applicant’s presence in the United States is urgently required for work with a U.S. government entity); or
  • As described in a request from or for a member of the Armed Forces of the United States:
    • The applicant’s qualifying family member is a member of the military who is deployed or will soon be deployed; and
    • The applicant demonstrates that, in light of the deployment there are compelling reasons to expedite the request due to the impact of the applicant’s absence from the United States on the applicant, the qualifying family member, or their children, if any.

The USCIS will review all request to expedite within 5 business days of their submission and will notify the applicant within 10 business days if their request is granted.  It is unlikely that USCIS will entertain a second request to expedite so it is essential that the first request be as compelling as possible.