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Cases in Which Waivers are Not Available for Immigration Denials

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Certain individuals cannot obtain an I-601 waiver due to facts in their immigration history which preclude a waiver from applying to their cases. An individual is not eligible for a waiver under the following circumstances:

1.The individual is subject to the permanent bar due to:

    a. Unlawful presence in the United States for more than one year after April 1, 1997 followed by a   departure from the United States and a return to the United States without inspection; or

    b. Removal from the United States after April 1, 1997 and a return to the United States without inspection.

2. The individual has falsely claimed to be a United States citizen unless a limited exception applies. This very narrow exception to INA §212(a)(6)(C)(ii), which was implemented by the Child Citizenship Act of 2000 applies, in the case of an alien making such a representation, if:

  • Each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization);
  • The alien permanently resided in the United States prior to attaining the age of 16; and
  • The alien reasonably believed at the time of making such representation that he was a citizen;

3. The individual has been a member of a criminal gang.

4. The individual has a controlled substance conviction or a guilty plea, even if subsequently dismissed due to completion of an ARD, etc., for any substance other than simple possession of less than 30 grams of marijuana for personal use;

5. The individual failed to attend a removal hearing in the United States and has not been outside the United States for five years;

6. The individual has a previous finding of marriage fraud in a prior immigration application; or

7. The individual previously filed for asylum and the application was found to be a frivolous asylum application.

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