I-601 Waiver Approval Overcoming 10-year Bar Despite Criminal HistoryPublished: Sep 28, 2011 4:30 pm By: Matthew L. Kolken
Our client is a native and citizen of South Korea. She entered the United States somewhere along the Washington-Canada border, without inspection. After her arrival she was convicted of one count of New York Penal Law § 240.20, Disorderly Conduct, a violation of New York State law, and fined $100.00. She was also was arrested and charged with violating New York Education Law § 6512, Unauthorized Practice. This charge was dismissed.
Subsequent to the disposition of these criminal matters, the Department of Homeland Security issued a Notice to Appear, alleging that she was an alien present in the United States who was not admitted or paroled. She was not charged with any criminal ground of removability.
After the institution of removal proceedings she married her United States citizen boyfriend. We were then retained.
We prepared and submitted a Form I-130, Immigrant Petition for Alien Relative, together with a bona fide marriage exemption, which was required due to the fact that the marriage was entered into after the institution of removal proceedings. We then obtained a continuance in order to permit our client and her husband to jointly attend an interview to enable Citizenship and Immigration Services to determine whether the marriage was real. It is, and CIS approved the petition.
Unfortunately, despite the fact that her husband's petition was approved, our client was ineligible to apply for her Green Card inside the country due to the fact that she was not inspected or admitted to the United States. This resulted in her having to depart the United States in order to apply for an immigrant visa in her home country.
To complicate matters, her departure from the country triggered a ten-year bar to readmission because she entered the United States without inspection, and because she remained in the United States for more than one year without authorization.
In Court were able to obtain voluntary departure in lieu of removal, and our client paid for her own return plane ticket complying with the voluntary departure order by departing the United States as required.
After she departed we prepared and submitted an immigrant visa application, together with a Form I-601 waiver application to cure the 1--year bar. We argued that our client's conviction did not render her inadmissible to the United States because it is not a crime involving moral turpitude, and even if it was it qualifies for the “petty offense exception.”
We also argued that the waiver should be granted due to the fact that her husband would experience extreme hardship if he remained in the United States without our client, and hardship if he was forced to relocate to South Korea to live with her. We explained that her husband would experience extreme hardship if his spouse were not permitted to return to the United States because of his close ties to the country, including his entire family, and many friends and attachments; his lack of family ties outside the country; the conditions in South Korea should this waiver be denied and he be forced to relocate there; his lack of ties in South Korea, and; the financial impact of departure from this country.
After consideration of our legal brief and supporting evidence submitted thereto, the Department of State granted the Form I-601 waiver, and issued our client an immigrant visa on the first try. The couple is now reunited in the United States.