Waivers of Alien Smuggling When Seeking Immigration Relief or a Green Card
One of the grounds for removability and inadmissibility involves alien smuggling, or helping a foreign national illegally enter the U.S. Even if you were not convicted of alien smuggling, you can be deported or denied entry on this basis. Green card holders sometimes are placed in removal proceedings based on alien smuggling, and foreign nationals who do not have a green card may be prevented from adjusting status on this basis. If you are in this situation, you may want to explore whether a waiver of alien smuggling can allow you to get immigration relief or receive a green card, even though you are technically ineligible.
There are three basic requirements for getting a waiver of inadmissibility for alien smuggling. These are the same for people who are trying to avoid deportation and for people who are applying for a green card. The first requirement involves showing that you are currently a green card holder or that you are seeking a family-based immigrant visa or a fiancé visa. Also, you must show that the foreign national whom you smuggled into the U.S. was an immediate relative, which means that they were a spouse, parent, son, or daughter. (You will not be barred from seeking a waiver if you divorced your spouse after you smuggled them into the U.S.) The final requirement involves showing that the foreign national deserves the waiver for humanitarian purposes, for reasons of family unity, or based on the public interest.
Eligibility for Waivers of Alien Smuggling
1The individual either is a green card holder or is seeking a family-based immigrant visa or fiancé visa
2The individual illegally smuggled their spouse, parent, or child into the U.S.
3The individual deserves the waiver for humanitarian, family unity, or public interest reasons
Establishing Eligibility for a Waiver
The main form that you will need to file is Form I-601. Regardless of the basis on which you apply for the waiver, you should provide documents to support your statements on the application. During the application process, you will need to think about whether you deserve a waiver on humanitarian, family, or public interest grounds. For example, you may be able to get a waiver on humanitarian grounds if you can prove that you will suffer a serious hardship if you do not receive the waiver. This might involve a threat of persecution in your home country, a history of being a victim of abuse, or the loss of a steady job in the U.S. You may have a strong case if you can show that someone who has legal status in the U.S. depends on your support, or if you need to take care of a family member in the U.S. who is suffering from a serious medical condition.
An applicant should not send original documents with Form I-601 unless specifically requested to do so by the instructions or regulations.
On the other hand, if you are seeking a waiver on family grounds, you may be able to get a waiver if you can show that family members who are legally in the U.S. depend on your care. If your spouse is a U.S. citizen, or if you have children who are U.S. citizens, you may have a compelling argument that they would suffer a hardship if you were required to leave the U.S. If you have many relatives who are U.S. citizens or green card holders, while you have very few relatives in your home country, the principle of family unity would support your continued presence in the U.S.
Public interest grounds for a waiver can be harder to define. You may be able to get a waiver on this basis if you can show that you do not have a criminal record, you have spent a long time in the U.S., and you have contributed to your local community in the U.S. As with the grounds above, you may have a stronger case if you can show that U.S. citizens or legal permanent residents would suffer a hardship if you left the country, or if you can show that you would be at risk of harm in your home country. Sometimes a foreign national who owns a business can argue that they deserve a waiver because they are creating jobs for U.S. citizens.