K1 VISA- IS 1-601 WAIVER POSSIBLE
Nov 10th 2020, 3:36 pm
#31
Forum Regular
Thread Starter
Joined: Feb 2020
Posts: 44
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
When applying the I-601, under CR1:-Individuals found inadmissible under section 212(a)(2)(A) of the Act, may seek a discretionary waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h). Section 212(h) of the Act provides for a discretionary waiver where the activities occurred for than 15 years before the date of the application if admission to the United States would not be contrary to the national welfare, safety, or security of the United States, and the foreign national has been rehabilitated (section 212(h)(1)(A)). A discretionary waiver is also available if denial of admission would result in extreme hardship to a United States citizen or lawful permanent spouse, parent, son, or daughter (section 212(h)(1)(B).
The question again, when applying for the I-610 waiver under the K1 Petition, from what posts I have read thus far on the web would suggest that the Consular officer are applying the discretionary waiver under s212(h)(1)(B)- EXTREME HARDSHIP, even if their offences are over 15 years old.
In other words, they are not applying criteria under s212(h)(1)(A) when assessing the I-601 application under K1 visa. It should be one or other, whichever is the easiest option that satisfies the requirements of the waiver.
Last edited by PINELLA; Nov 10th 2020 at 4:41 pm.
Nov 10th 2020, 5:23 pm
#32
BE Commentator
Joined: Feb 2010
Location: Los Angeles, California
Posts: 8,419
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
As Mr F is fond of pointing out he is or was? a Lawyer but not yours.
I thought I had mentioned that whilst a K1 is a NIV it is treated for most purposes as an Immigrant visa and the I 601 if needed would be the one, not a D3.
I do not know enough about your case to comment if a I 601 would be requested, when shove comes to push the CO is the one who makes the determination.
I did a K1, mistake then with the benefit of hindsight, even more so now as things have changed that make it even less appealing. Why the fascination with the K1?
I thought I had mentioned that whilst a K1 is a NIV it is treated for most purposes as an Immigrant visa and the I 601 if needed would be the one, not a D3.
I do not know enough about your case to comment if a I 601 would be requested, when shove comes to push the CO is the one who makes the determination.
I did a K1, mistake then with the benefit of hindsight, even more so now as things have changed that make it even less appealing. Why the fascination with the K1?
Nov 10th 2020, 5:31 pm
#33
BE Commentator
Joined: Feb 2010
Location: Los Angeles, California
Posts: 8,419
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
No particular concrete source, the interpretation is purely based on what I have read on a number of postings on the web. All dealt with the with the K1 Petition with a criminal conviction. In all postings, at the K1 interview stage, after the K1 was denied, they were advised by the Consular officer to file the I-601 and were required to show HARDSHIP . In all cases the convictions of the individual were more than 20 years old.
In my opinion, it would appear there is some contradiction in the advice there were given by the Consular officer on the face of it. Let me explain. Under the FAM (9 fam 502.7-3 (C)(7)- K Visa Issuance, - Waiver Availability for Applicants Ineligible under INA 212(A): A K Visa is a non immigrant visa, and therefore, K nonimmigrants are generally eligible for the INA 212(d)(3)(A) waivers. However, processing an INA 212(d)(3)(A) waiver would not be appropriate unless an immigrant waiver is also available when the K visa holder applies to adjust status to lawful permanent resident. To determine whether a waiver is available for the K applicant, you must therefore first examine whether the particular INA 212(a) ineligibility is waivable for immigrant spouses of US citizens, under either INA 212(g), INA 212(h) etc etc.
In my case, my boyfriend would fall under the INA 212(h)- (crime of moral turpitude). According to the FAM:9 FAM 305.2-3(A) Crimes of Moral Turpitude - INA 212(a)(2)(A)(i)(I)
(CT:VISA-287; 02-17-2017)
a. Waiver Available: An INA 212(h) waiver is available in cases where:
(1) The alien's admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated, and the activities occurred more than 15 years before the date of the visa application;
(2) The alien is the spouse, parent, son or daughter of a U.S. citizen or legal permanent resident (LPR) and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or LPR; or
My reading of the above would suggest that if you satisfied (1)- over 15 years have passed since the conviction and before date of visa application, you should be eligible for a waiver. There is nothing to suggest that you have to fulfil both criteria (1) and (2), to be eligible for a waiver, and yet the posts that I have read would seem to suggest the latter. In cases where the application were to be by way of marriage i.e. CR1, one's waiver application would be considered on either satisfying (1) or (2) whichever was the easiest to satisfy.
It should also be noted I was making reference to the London Consulate
Perhaps, you could inject into the above as to what your opinion is.
It would be appreciated.
In my opinion, it would appear there is some contradiction in the advice there were given by the Consular officer on the face of it. Let me explain. Under the FAM (9 fam 502.7-3 (C)(7)- K Visa Issuance, - Waiver Availability for Applicants Ineligible under INA 212(A): A K Visa is a non immigrant visa, and therefore, K nonimmigrants are generally eligible for the INA 212(d)(3)(A) waivers. However, processing an INA 212(d)(3)(A) waiver would not be appropriate unless an immigrant waiver is also available when the K visa holder applies to adjust status to lawful permanent resident. To determine whether a waiver is available for the K applicant, you must therefore first examine whether the particular INA 212(a) ineligibility is waivable for immigrant spouses of US citizens, under either INA 212(g), INA 212(h) etc etc.
In my case, my boyfriend would fall under the INA 212(h)- (crime of moral turpitude). According to the FAM:9 FAM 305.2-3(A) Crimes of Moral Turpitude - INA 212(a)(2)(A)(i)(I)
(CT:VISA-287; 02-17-2017)
a. Waiver Available: An INA 212(h) waiver is available in cases where:
(1) The alien's admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated, and the activities occurred more than 15 years before the date of the visa application;
(2) The alien is the spouse, parent, son or daughter of a U.S. citizen or legal permanent resident (LPR) and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or LPR; or
My reading of the above would suggest that if you satisfied (1)- over 15 years have passed since the conviction and before date of visa application, you should be eligible for a waiver. There is nothing to suggest that you have to fulfil both criteria (1) and (2), to be eligible for a waiver, and yet the posts that I have read would seem to suggest the latter. In cases where the application were to be by way of marriage i.e. CR1, one's waiver application would be considered on either satisfying (1) or (2) whichever was the easiest to satisfy.
It should also be noted I was making reference to the London Consulate
Perhaps, you could inject into the above as to what your opinion is.
It would be appreciated.
2. The 15 year provision is relatively rare in use. Therefore, it is often outside the experience of many of the governmental minions and immigration attorneys.
3. Proving “extreme hardship” is a PIA.
Nov 10th 2020, 5:49 pm
#34
Forum Regular
Thread Starter
Joined: Feb 2020
Posts: 44
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
1. The waiver is a function of DHS, not State. DHS regulations are found in Title 8 Code of Federal Regulations (aka 8 CFR).
2. The 15 year provision is relatively rare in use. Therefore, it is often outside the experience of many of the governmental minions and immigration attorneys.
3. Proving “extreme hardship” is a PIA.
2. The 15 year provision is relatively rare in use. Therefore, it is often outside the experience of many of the governmental minions and immigration attorneys.
3. Proving “extreme hardship” is a PIA.
Nov 10th 2020, 5:54 pm
#35
BE Commentator
Joined: Feb 2010
Location: Los Angeles, California
Posts: 8,419
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
PIA = Pain In the Ass. A well known legal acronym.
Nov 10th 2020, 7:44 pm
#36
Forum Regular
Thread Starter
Joined: Feb 2020
Posts: 44
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
#
....you got me!
Back to business...I have had a quick speed read of the 8 CFR, in particular to waivers under INA 212 (h). I fully accept that the ultimate decision to grant the waiver of ineligibility lies with the DHS as you have correctly stated, however, in doing so the DHS makes reference to INA 212(h), as listed below:
Waiver Available: An INA 212(h) waiver is available in cases where:
(1) The alien's admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated, and the activities occurred more than 15 years before the date of the visa application;
(2) The alien is the spouse, parent, son or daughter of a U.S. citizen or legal permanent resident (LPR) and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or LPR; or
With regards to your statement "The 15 year provision is relatively rare in use. Therefore, it is often outside the experience of many of the governmental minions and immigration attorneys", I am not clear what you mean by this, and whether you are referring to the HARDSHIP waiver as in (2) above. Perhaps you could direct me to the reference point to which you are referring to.
For the avoidance of doubt, when I made reference to 15 years, I was referring to item (1) above, i.e. the activities occurred more than 15 years before the date of the visa application .
Therefore, when the DHS is reviewing the waiver application, my understanding is that in order to qualify for consideration I must meet either (1) or (2), under the INA212(h) waiver, not both, of course with other positive factors.
I appreciate any comments you may have.
....you got me!Back to business...I have had a quick speed read of the 8 CFR, in particular to waivers under INA 212 (h). I fully accept that the ultimate decision to grant the waiver of ineligibility lies with the DHS as you have correctly stated, however, in doing so the DHS makes reference to INA 212(h), as listed below:
Waiver Available: An INA 212(h) waiver is available in cases where:
(1) The alien's admission to the United States would not be contrary to the national welfare, safety and security of the United States and the applicant has been rehabilitated, and the activities occurred more than 15 years before the date of the visa application;
(2) The alien is the spouse, parent, son or daughter of a U.S. citizen or legal permanent resident (LPR) and, in the opinion of DHS, not granting a waiver would result in extreme hardship to the U.S. citizen or LPR; or
With regards to your statement "The 15 year provision is relatively rare in use. Therefore, it is often outside the experience of many of the governmental minions and immigration attorneys", I am not clear what you mean by this, and whether you are referring to the HARDSHIP waiver as in (2) above. Perhaps you could direct me to the reference point to which you are referring to.
For the avoidance of doubt, when I made reference to 15 years, I was referring to item (1) above, i.e. the activities occurred more than 15 years before the date of the visa application .
Therefore, when the DHS is reviewing the waiver application, my understanding is that in order to qualify for consideration I must meet either (1) or (2), under the INA212(h) waiver, not both, of course with other positive factors.
I appreciate any comments you may have.
Last edited by PINELLA; Nov 10th 2020 at 7:49 pm.
Nov 10th 2020, 8:17 pm
#37
MODERATOR
Joined: Apr 2003
Location: Phoenix, Arizona
Posts: 58,679
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
Here is one suggestion. File the I-129F to get the ball rolling on the K-1. At the visa interview, if/when he receives the waiver recommendation, consult with an immigration attorney to put that best case together for submittal.
Another option... have your fiance come to the USA within the next month before his current B-2 expires. Get married in the USA and then do the CR-1 visa. At the interview, follow the same advice as above.
Rene
Another option... have your fiance come to the USA within the next month before his current B-2 expires. Get married in the USA and then do the CR-1 visa. At the interview, follow the same advice as above.
Rene
Nov 10th 2020, 8:52 pm
#38
Forum Regular
Thread Starter
Joined: Feb 2020
Posts: 44
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
Here is one suggestion. File the I-129F to get the ball rolling on the K-1. At the visa interview, if/when he receives the waiver recommendation, consult with an immigration attorney to put that best case together for submittal.
Another option... have your fiance come to the USA within the next month before his current B-2 expires. Get married in the USA and then do the CR-1 visa. At the interview, follow the same advice as above.
Rene
Another option... have your fiance come to the USA within the next month before his current B-2 expires. Get married in the USA and then do the CR-1 visa. At the interview, follow the same advice as above.
Rene
That is the reason why I was desperately seeking the answer to whether the "application for a waiver filed after 15 years of conviction",, would succeed.
Nov 11th 2020, 12:32 am
#39
MODERATOR
Joined: Apr 2003
Location: Phoenix, Arizona
Posts: 58,679
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
Thanks Noorah, your first option makes sense, as for the second, we did consider it, but there is still a BAN for non immigrants to fly to the US in line with Trump;s proclamation. The reason for seeking clarity at this stage was that if we were assessed under the HARDHSIP WAIVER grounds, we would fail in securing the waiver, as we would not meet the criteria required to meet approval.
That is the reason why I was desperately seeking the answer to whether the "application for a waiver filed after 15 years of conviction",, would succeed.
That is the reason why I was desperately seeking the answer to whether the "application for a waiver filed after 15 years of conviction",, would succeed.
Rene
Nov 11th 2020, 2:00 am
#40
BE Commentator
Joined: Feb 2010
Location: Los Angeles, California
Posts: 8,419
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
As one who has participated in this form for a long time, I find it of interest that Rete, Renee and Boiler have recommended legal consultation.
If you consult, you may want to ascertain if the lawyer has some experience in waivers. I would recommend a couple people, but I've found that these recommendations are sometimes replaced with a <snip>.
BTW, I know slogging through immigration legal verbiage can be daunting. If it makes you feel any better, a case involving a provision of the Immigration & Nationality Act was heard by the Supreme Court this very week. The fight is whether statutory language is clear and unambiguous or is there an ambiguity to be resolved by the administrative agencies? Personally, I think it can go either way.
If you consult, you may want to ascertain if the lawyer has some experience in waivers. I would recommend a couple people, but I've found that these recommendations are sometimes replaced with a <snip>.
BTW, I know slogging through immigration legal verbiage can be daunting. If it makes you feel any better, a case involving a provision of the Immigration & Nationality Act was heard by the Supreme Court this very week. The fight is whether statutory language is clear and unambiguous or is there an ambiguity to be resolved by the administrative agencies? Personally, I think it can go either way.
Nov 11th 2020, 9:03 am
#41
Forum Regular
Thread Starter
Joined: Feb 2020
Posts: 44
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
As one who has participated in this form for a long time, I find it of interest that Rete, Renee and Boiler have recommended legal consultation.
If you consult, you may want to ascertain if the lawyer has some experience in waivers. I would recommend a couple people, but I've found that these recommendations are sometimes replaced with a <snip>.
BTW, I know slogging through immigration legal verbiage can be daunting. If it makes you feel any better, a case involving a provision of the Immigration & Nationality Act was heard by the Supreme Court this very week. The fight is whether statutory language is clear and unambiguous or is there an ambiguity to be resolved by the administrative agencies? Personally, I think it can go either way.
If you consult, you may want to ascertain if the lawyer has some experience in waivers. I would recommend a couple people, but I've found that these recommendations are sometimes replaced with a <snip>.
BTW, I know slogging through immigration legal verbiage can be daunting. If it makes you feel any better, a case involving a provision of the Immigration & Nationality Act was heard by the Supreme Court this very week. The fight is whether statutory language is clear and unambiguous or is there an ambiguity to be resolved by the administrative agencies? Personally, I think it can go either way.
Last edited by PINELLA; Nov 11th 2020 at 9:06 am.
Nov 11th 2020, 9:13 am
#42
Forum Regular
Thread Starter
Joined: Feb 2020
Posts: 44
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
So, what if you discovered at this point that the application would definitely fail? Would you break up? Would you consult an attorney to see if there's another way forward? I don't think anyone here can give you a 100% definite answer. I suggest consulting an immigration attorney now, if you don't want to wait until the interview stage.
Rene
Rene
Nov 11th 2020, 2:43 pm
#43
Forum Regular
Thread Starter
Joined: Feb 2020
Posts: 44
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
So, what if you discovered at this point that the application would definitely fail? Would you break up? Would you consult an attorney to see if there's another way forward? I don't think anyone here can give you a 100% definite answer. I suggest consulting an immigration attorney now, if you don't want to wait until the interview stage.
Rene
Rene
We therefore need not worry about the grounds of EXTREME HARDSHIP as stated in item (1) below, to qualify for consideration of the I-601 waiver. A BIG relief for the moment. Will keep the forum updated on our progress and thank you all for your help and support.
Who Qualifies for the I-601 [INA § 212(h)] Waiver?
You qualify for the I-601 waiver [§ 212(h) waiver] if you are one of the following:
1. An immigrant who has a U.S. citizen or permanent resident spouse, parent, son or daughter who will suffer extreme hardship if you are not admitted to the U.S.
2. A self-petitioning abused spouse or child of a U.S. citizen or permanent resident, under the Violence Against Women Act (VAWA).
3. Inadmissible only under prostitution grounds [sections 212(D)(i) or (D)(ii) of the INA]; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security to the United States.
4. Inadmissible due to certain criminal activities (e.g. a crime involving moral turpitude; single offense of simple possession of 30 grams or less of marijuana) that occurred more than 15 years before the date of application for a visa, admission, or adjustment of status; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security of the United States.
The filing address for the I-601 application depends on whether you are:
An adjustment of status applicant who is filing or has already filed the I-485 application with USCIS;
An immigrant visa or K-3/K-1 nonimmigrant visa applicant who was found inadmissible by the U.S. Consulate at the visa interview; or
Last edited by PINELLA; Nov 11th 2020 at 2:58 pm.
Nov 11th 2020, 3:55 pm
#44
Account Closed
Joined: Mar 2004
Posts: 2
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
1 is the simplest.
They go the lockbox now, have done for some time.
They go the lockbox now, have done for some time.
Nov 11th 2020, 8:45 pm
#45
BE Commentator
Joined: Feb 2010
Location: Los Angeles, California
Posts: 8,419
Re: K1 VISA- IS 1-601 WAIVER POSSIBLE
FWIW, a waiver application is considered a “continuing” application to be decided on the facts existing at the time of the adjudication. (There are some applications/petitions that are decided on facts existing at time of filing. I-601’s are not one of them.) Once had a waiver application pending at the AAO on an extreme hardship denial, and they, on their own motion, converted it to a 15 year case and found that based upon the evidence already presented that he had been rehabilitated and his admission would not be contrary to the interests of the United States.