Barred From Entering the United States
Bar waivers are tricky. You should not assume that you will be successful simply because an immigration officer has handed you a 601 form. Immigration officers who judge I-601 waivers do not have contact with the public. They work in back offices. Immigration customer service representatives have no control over who will succeed and who will fail. A decision against you can be devastating. The damage is done and can be very difficult to unravel. Smart planning in advance is critical.
Our law firm has obtained many i601 bar waivers. This is one of our areas of expertise. Although we have successfully obtained bar waivers for many couples, we cannot guaranty success in your particular case. Licensed attorneys are not allowed to guaranty results, and it would be inappropriate to make such a guaranty.
When a foreigner is barred from the U.S. the bar can sometimes be lifted based on a USCIS I-601 Waiver application. According to the U.S. Government Accounting Office, well under half of all foreigners who apply for 601 waivers are successful in obtaining one. This figure includes clients represented by legal counsel as well as those acting alone. It primarily includes couples, married or not. The result is that the vast majority of foreigners who are barred from the U.S. are not able to lift the bar and cannot enter the U.S. lawfully. Ultimately a couple must end the relationship, or the U.S. citizen must move abroad, or the husband and wife must reside in different countries.
Marrying does not necessarily solve the problem, especially if the foreigner is already outside the U.S. In fact, there is a court case on point which states that act of marriage should not be considered when deciding if a bar should be lifted. If the foreigner is in deportation proceedings and is still in the U.S. then a marriage can possibly be used as a means of temporarily delaying or stopping the deportation. However, it is not always in the best interest of the foreigner to fight deportation. Each circumstance is different. Hiring a qualified and experienced immigration attorney is important when trying to overcome a bar.
The most common reason for a bar is that the foreigner was present in the U.S. illegally, then left. Unlawful presence in the U.S. for a period of more than 6 months triggers an automatic 3 year bar once the foreigner departs the U.S. No deportation order is required. The mere fact of being in the U.S. unlawfully for too long can trigger the bar upon departing the US. If the foreigner was unlawfully present in the U.S. more than 1 year, then the bar is for 10 years rather than three. If the foreigner is unlawfully present in the U.S. for any length of time, it is important to seek confidential advice from a qualified, licensed immigration attorney at your earliest opportunity in order to examine your options. Simply being out of status is a violation of immigration rules and has consequences.
Another common reason for a 601 bar is because the foreigner has made a misrepresentation before an immigration officer. When caught in a lie the foreigner is permanently barred from the U.S. and a 601 waiver must be sought. Yet another situation is where the foreigner has been convicted of committing certain crimes. Court ordered deportations can also result in a separate bar from the U.S. for a fixed duration. A 601 bar waiver can be used to try and set aside the deportation bar.
Each of these bars is separate and distinct from another. Sometimes there are several bars that overlap one another and the client is unaware of the situation. Clients often believe that a bar should not apply where the foreigner voluntarily departs the U.S. to avoid a deportation order. However, courts often avoid mentioning the foreigner can be barred from the U.S. even if the court does not issue a deportation order where voluntary departure is granted.
Who may apply for a 601 Waiver?
A foreigner may apply for an I-601 bar waiver if the foreigner is an immediate relative of a U.S. citizen. An “immediate relative” includes a husband or wife, fiancée, child or parent of a U.S. citizen. If the foreigner does not have a U.S. citizen immediate relative, then a 601 bar waiver application is not available.
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