Hi, I'm Hilary Walsh, a serial entrepreneur, award-winning immigration lawyer, law professor,
TEDx speaker, and Raven Phoenix Suns fan.
Over the past decade, I've helped thousands of immigrants live free in the United States.
I'm talking work permits, social security numbers, green cards, their citizenship,
VAWA, TV visa, U visa, and lots of successful appeals.
Here's the thing, immigration law is super complicated and legal advice.
Well, it can be pretty expensive.
So I created the Immigration Law Made Easy podcast to share my 10 plus years of experience with you for free.
So if you're looking for tried and true, no BS, step-by-step strategies and tips on how to win your immigration case
and live truly free in the United States, you're in the right place, my friend.
Let's get started.
What is up, my immigration law made easy friends and family.
Today, we're going to talk about 601 waivers.
I'm sure I'm not going to cover every single possibility for a 601 waiver because it's like a very, very, very deep pool of information
that we're going to have to swim through today.
But I want to cover three main areas that you need a 601 waiver.
This is not for a 601A waiver, although some of that applies as well.
I'm really talking about 601 waivers specifically for if you need to adjust your status here in the United States,
which means I'm applying for a green card.
And I usually will be doing that either through a work opportunity or if you're listening to this podcast,
what we specialize in is family based immigration.
So I have an immediate family member who has status.
I'm applying for a green card, but I have one of these wrinkles in my case where I need a 601 waiver.
We're going to cover three of those.
One of those is unlawful presence when you need a 601 waiver for unlawful presence.
And maybe when you don't, hopefully we'll cover some ground where you can see that perhaps you don't need a 601 waiver.
Two, when you have fraud or misrepresentation and sometimes that arises as well.
And three for alien smuggling.
Now, I don't just as an outset thing.
I don't like the word alien.
I do not believe that immigrants are aliens, but that's how our immigration laws are written.
And that's specifically what the statute, when it's talking about punishing people or requiring a waiver or an exception to the rule for punishment for alien smuggling,
they talk about alien smuggling.
So we're just going to keep it simple and carry on.
I really urge everyone to use the word non-citizen because that's what you are until you're not.
So you're either a non-citizen until you are a citizen or foreign national is also a way to describe people who don't have status in the United States.
But for today, alien smuggling, it is we are going to put, because it's going to be a lot of information.
And I'm going to try not to rush through it because I don't want to go too fast where you're not able to really get value out of this.
We're going to put timestamps on unlawful presence, on fraud and misrepresentation and on alien smuggling in the show notes.
So if you get to this and you're like, I really just want to cut to the chase because I have, maybe I'm an immigration lawyer and I need to look and really hear about alien smuggling and hear some examples.
Does my client need a waiver?
That way you can kind of jump to whatever is most useful for you. So let's get started.
The thing about unlawful presence waivers, let's start at the top. It's the one that I see the most common. It is such a pain point for so many people.
And again, this is when we talk about a 601 waiver.
The reason we call it a 601 waiver is because that's the form itself. It's an I 601. So you can Google USCIS, I 601 and the form itself will pop up.
Well, it'll at least take you to the USCIS website. It'll pop up and you can see what I'm talking about there.
So there is an I 601 a waiver. That's for people who are wanting to console or process. They need to leave the country to go get their green card. So you are going to be leaving. So you have the 601 a on there.
Today we're really just talking about I 601 waivers. So let's talk about unlawful presence.
I'm a law professor in immigration, teaching the immigration law and law school and like he kept going on and on about how the unlawful presence issue doesn't become an issue unless you leave.
And I never really got it while I was in law school, but I really got it when I was working with it in real life. So I want to give you some real life examples of what the unlawful presence bars are.
So first of all, if you come to the United States and you have permission and you stay longer than you're permitted to, you begin to accrue what's called unlawful presence.
Let me give you an example. If I come to the US with a border crossing card or tourist visa from Mexico, let's say that I'm authorized to enter and be in the United States as a tourist for six months.
If I don't file for an adjustment of status or a student visa, or I don't basically try to change my status or adjust my status within that six months on the six month and first day, I accrue one day of unlawful presence.
And that continues until I leave or something else happens. So the only time unlawful presence really becomes a major issue for me if I'm doing a family based immigration case.
So let's say I enter on a tourist visa. I'm Mexican. I entered on a tourist visa.
And I'm here for eight months. So I've overstayed and I have two months of unlawful presence, but I marry US citizen. And I never leave the country while I work on getting my green card.
I go to my interview. And even though I have unlawful presence, I'm not punished for having the unlawful presence because I never left the country. The statute essentially forgives it so long as you don't leave.
So it's, this is where my law professor was trying over and over to teach us. It's not that big a deal unless you leave, which is counterintuitive because you would think you want to encourage people to go ahead and leave if you have unlawful presence, get, get your case kind of
reset, get back on the right path, all of those types of things. But the way Congress has written our statutes, it's actually more advantageous from an immigration law perspective.
If you stay in the US and accrue more unlawful presence and then adjust your status versus leaving the US because then you have to wait outside the US for a certain amount of time.
So let's get into that. There's a three year unlawful presence bar, a 10 year unlawful presence bar, and then you can also trigger what's called the permanent bar.
If you accumulate over a year of unlawful presence and then you reenter illegally after that. So we'll start with the worst case scenario, the permanent bar and kind of work our way back.
And then I'll give some examples in reverse order on the three year bar, 10 year bar and permanent bar.
The permanent bar is something that I see every single day. So what ends up happening is people come to the US. Let's say that we're going to, we're going to stay with this, this tourist visa, this Mexican coming in with the tourist visa.
Okay.
If I come to the US, let's say I've been coming to the US since I was a kid. And each time I would overstay by about two months. Okay.
So with the permanent bar, if, if I, in the aggregate, so if I aggregate these unlawful presence days together, if I put them all together, even though they've been broken up by me leaving and coming back, if I put them all together in the same bucket, all the unlawful presence and it's over a year.
And then I illegally reenter. Let's say my tourist visa expires and I just drive through the desert with a friend or I hire a coyote or something happens where I don't lawfully enter.
I've now triggered the permanent bar because in the aggregate, all of these unlawful presence days in the bucket, all those times that I came and overstayed by two months.
I did that 10 different times. Now I have a year of unlawful presence is 10. I think that's actually, I only have to do that six times, you guys. I did that six times and now I have a year of unlawful presence.
Now, when I illegally enter, I trigger the permanent bar. There is no waiver for when you trigger the permanent bar, except for in the context of VAWA, you visa and TV.
We are not going to get into that today. I just want you to know that if you've been told you have the permanent bar and you're told that you have to leave the country for 10 years and then wait to reapply.
That advice is correct. Their only exception to that would be maybe you have a VAWA case, maybe you have a TV visa case, or maybe you have a UV visa case.
In which case you wouldn't need to worry about, we can help you with a waiver for the unlawful presence permanent bar that you have. Okay.
Let's talk about the 10 year bar. So the 10 year bar applies if you've stayed more than one year in a single stay and then leave.
And then wait for 10, you need to wait 10 years outside the United States if that's the case for you. So let's go back to our example.
You enter with a tourist visa. You have a lawful entry. Everything's fine. And you're allowed to be here for, let's say, 90 days or six months, whatever it is.
Let's use six months. We'll stay with our example.
But you stay for one year and seven months or one year and six months and one day. And so all the extra time beyond what you were permitted to be here for, that is called unlawful presence.
And you've been here now for over one year in one single stay and then you leave.
Once you leave, you have to wait for 10 years before you're allowed to apply to come back.
Okay. That's the 10 year bar. And last but not least is the three year bar.
Let's say you enter the United States and you're coming in on your tourist visa, your Mexican B1, B2 visa that's either a sticker in your passport or your border crossing card.
And you stay from over stay for more than 180 days, but less than one year.
Okay. So you overstay, let's say you're allowed to be here for six months and you stay for a year and a day.
Okay. So now you've got six months and one day of unlawful presence and then you leave.
Now you have to wait three years before you're allowed to come back without a waiver.
Now you can get waivers for a 10 year bar or a three year bar so that you can come back earlier.
Or you just wait it out and then you don't need the waiver. So let's get into some a little bit more examples.
And the one key thing that like so many people miss and is like so important, I probably should have started with talking about this, is these punishments, these unlawful presence issues only apply to unlawful presence on or after April 1, 1997.
So if you came to the U.S. many, many, many times and overstayed or you didn't even have permission to come to the U.S. and you were coming and going and nobody ever stopped you.
You never had any issues at the border before April 1, 1997. I don't want you to worry about this. This is not an issue for unlawful presence purposes.
Let's pretend that there simply wasn't a watch. There was not a clock counting unlawful presence before April 1, 1997.
Things after and that includes the permanent bar. There's no permanent bar for unlawful reentry after an aggregate of a year or more.
If it was after, if it was before April 1, 1997. So really draw the line when I'm interviewing clients, for example, in a consultation.
Draw a line for when the unlawful presence was. So it's like, okay, we have these entries and these exits.
And then over here we have, and those don't count because they're before April 1, 1997 for unlawful presence purposes.
But then over on this side of the piece of paper is when I start to look at your entries and exits after April 1, 1997.
Remember, if you entered before April 1, 1997, and you stayed and then left, I know that the clock starts on April 1, 1997 when I'm counting unlawful presence days.
And again, because the permanent bar calculates it not in one single stay, we have to be really clear on exactly which dates you were here and when you left and when you re-entered.
Because if you didn't have a year of unlawful presence here in the US before you left and illegally re-entered, then you don't have the permanent bar.
You may have an unlawful presence, you know, an illegal entry that we have to overcome or something like that, but you don't have the permanent bar, which is a great deal for you.
Okay, so let's go through a couple more examples for people who didn't have permission when they entered.
I'm going to talk all these examples are going to be after April 1, 1997, because like we just talked about, the days of unlawful presence just didn't count before.
So let's talk about illegal entries, unlawful presence after April 1, 1997.
We'll start using January 1, 1998, just for simplicity.
So, and this is going to apply for a lot of people who have parents, maybe your first generation or something similar, and you're listening to this and you're thinking, this is totally my parent situation.
How can we help them? Okay.
So you illegally enter the United States.
We'll keep using the example of a Mexican because we have so many Mexican clients who back in the day it was very common to enter the US without permission, come work and leave and it was no big deal.
Things changed when Bill Clinton was president, we had this massive immigration reform.
And now we know we've got these unlawful presence bars. So people illegally enter. You have, let's use, I always use the name of Sarah, who is my marketing director at the firm.
I love using her name and all of my hypo is because she's always on my mind and near dear to my heart. So we'll keep using the example of Sarah.
Not that she and Sarah is Mexican, but she has always entered the US lawfully, but the pretend Sarah and this hypo, she entered the United States in 1998 walking.
Okay. She did not have a lawful entry. And in one of our first podcasts, go back, there's one called, you know, let's talk about EWI. Let's talk about entries.
If you want to know whether your entry was lawful or not, go back and listen to that podcast. In this situation, Sarah entered illegally.
We know it was not a lawful entry and she's been here. She has a US citizen kid. She had this baby here in the United States and she comes to the office and wants to ask me, attorney Hillary, can I fix my status through my 21 year old US citizen child?
And I tell Sarah, unfortunately, no, right now you can't. Here's why.
Because you have been here for more than one year without permission. So I know that when it's time for you to leave and go to Ciudad Juarez to go to your green card appointment, you're going to need a 601A waiver.
Okay. She won't need a 601 waiver because she's not going to adjust here in the United States. She's getting a 601 waiver.
Same analysis applies though. The tricky thing for a 601 waiver or a 601A is you have to have a qualifying relative to show, hey, if I don't get this, if you don't approve this for me, it's going to cause hardship to my US citizen or lawful permanent resident, spouse, child or parent.
Okay. Actually, it's not your child. Forgive me. It's going to cause hardship to my lawful permanent resident spouse, my US citizen spouse, or my lawful permanent resident or US citizen parent.
Okay. So spouses or parents can be qualifying relatives for unlawful presence waivers, but children, lawful permanent resident children or US citizen children, they can't be qualifying relatives.
So when Sarah comes into my office, I'm like, oh, Sarah, you are, okay, I have had this consultation so many times because if I send you out of the country to go consular process, which you have to do because you don't have a lawful entry, when you leave, that 10-year bar is going to go up behind you because it's when you leave that the bar applies.
You're accumulating unlawful presence, but you're not punished until you leave. So we're always trying to find a way for you to fix without leaving because then perhaps we don't need, then perhaps we don't need the waiver.
Now, VAWA, UVSA, and TVSA, and of course, asylum, but in terms of family-based petitions, VAWA and UVSA and TVSA are humanitarian victim-based ways that you can have an unlawful presence waiver for yourself.
So you can be your own qualifying relative if that's needed. And a lot of times with the T and the U, it's just not even an issue at all. But VAWA is definitely a tool that you can use should you have experienced extreme cruelty that qualifies you for VAWA, okay?
So if you are someone like Sarah, who has a U.S. citizen child over the age of 21 and you're not eligible for a waiver because that child can't be your qualifying relative, but you need a waiver in order to get a green card, the first thing I'm going to start talking to you about is let's have a conversation to see if you've ever experienced cruelty, extreme cruelty, or battery from your U.S.
citizen child. And that's a separate conversation that we will then have because then it can help us with the unlawful entry. And there will be no 601 necessary because the person doesn't leave the country, okay?
This might start to feel a little complicated because it's strategy, it's a legal strategy.
And if it's something where you're like, this might be the way for me, I really recommend you reach out to an attorney who can do a consultation with you, walk you through what this process looks like, what is it, how the timing, you know, the things that you have to prove and the evidence that's necessary, talk to an experienced attorney, because we do this all day every day.
You can tell I talk about it with great comfort and ease because it's something we do every single day. Okay.
So that's the situation where if I leave, I'm going to have this punishment and I'm going to need a pardon waiver for this. But if I stay here and able to fix here, I do not need a waiver.
Okay.
Let's talk about another scenario that we see happen a lot where people are coming and going with their, they're coming and going with or without permission, but every time they leave, they're triggering a 10-year bar. Okay. And then they need the waiver.
So here's another situation. Let's talk about Juan. Juan is Mexican. It's, I'm in Arizona, so I use Mexicans as my prime example because I'm with them every single day.
Juan comes to the U.S. frequently with a tourist visa. He comes to the U.S. He's here for eight months and he's only allowed to be here for 90 days for three months. So each time he overstays, but he has always re-entered even though he's overstayed many, many times.
He's only ever overstayed by nine months. And then he re-enters with a tourist visa the next time.
So let's go into our mind. If it's less than a year, but it's more than six months of overstay, we know that he's barred for three years from adjusting status.
Let's say that now Juan has married a U.S. citizen and he and his husband want to get Juan his green card, so he's here permanently. Okay. Lawful permanent resident.
My analysis is Juan, you've triggered the three-year bar. You've not, it doesn't seem triggered the 10-year bar, but you haven't been out of the United States for long enough, or it hasn't been, you know, enough time since your last departure to be able to file your green card for you without a waiver.
So we're going to need to file a 601 waiver for you to waive the three-year bar.
Now, Juan is in a great situation because his husband is a U.S. citizen. So Juan, unlike the example from Sarah, who had no qualifying relative for a 601 waiver, Juan does have a qualifying relative for his 601 waiver, his U.S. citizen spouse.
Remember, it's just spouses and parents who have status who can be our qualifying relatives for unlawful present 601 waivers.
Children, the reason behind this is because Congress didn't want anchor babies being able to help parents fix. They wanted to prevent people from coming to the U.S., having a U.S. citizen child, and then essentially creating an anchor baby.
And this is not just me making this up. This is in our congressional history where the senators were talking and formulating this very specifically because they didn't want U.S. citizen kids to be able to help their parents fix.
So that's pretty messed up in my opinion, but that was the 90s and we're in the 2020s now.
One more reason why we need to have immigration reform because families belong together and I think we all agree with that.
Okay, so Juan, what are we going to do? If your last entry, I'm sorry, your last departure, Juan, was two years ago, we can do a couple of things.
We can either wait to file your green card application for the third year to pass and then you no longer need a 601 waiver because it's been three years since your last departure.
And keep in mind, it's the departure, the departure date that counts, not the date you begin accruing the unlawful presence. The bar goes up behind you when you leave.
This is what my law professor was really trying to reiterate and I'll keep reiterating it for you as well.
So let's put some specific dates on this. You know what I'm talking about.
Let's say that the last time Juan left the country and he'd been here for nine months at that point. So he had overstayed.
He had overstayed by more than six months, but less than one year. He left in 2020 and then a month later he came back.
Well, right now it's 2022. So he's waited two years. He could either wait one more year before he applies for his green card or he can apply now for his green card and we would file a 601 waiver to waive the three year bar.
That would just be his decision. We have a great track record. I mean, like an unstoppable, wonderful track record with 601 waivers.
So I would say Juan, like what's it worth to you? Let's just do the waiver. Let's apply for your green card. We'll do the waiver.
And by this time next year, you'll have your green card. You won't have to worry about this and stay kind of in limbo, driving without a driver's license, not having a social security number and kind of looking over your shoulder and panic when this option is available to you right now.
Let's just go for it. That's what I would advise.
I'm assuming that there are no other facts that I need to know about, but this is just a made up person. Okay.
So that should help you when you're calculating how do I count? Like how do I count? And then the other important thing to keep in mind is the unlawful presence bars for a long time, USCIS and the immigration court system.
They viewed where you physically had to be during that three years or the 10 years when you're barred from being able to apply for your green card.
USCIS used to say you had to be out of the country and wait that whole time out of the country. So if you're barred for three years and you didn't want to do a waiver, you needed to show me that you had been out of the country for the three years before you applied for your green card.
Otherwise, we're going to require a waiver. But if I did the same case in immigration court, the immigration judge would say it doesn't matter where you are during that three years.
It just matters that the three years have gone by since your last departure. Obviously, that's way easier in immigration court because then you don't have to worry about the waiver and then adjudicating the waiver and having the qualifying relative for it.
In the past few months, USCIS has realigned and now EOIR, the immigration court system and USCIS both agree. It does not matter where in the world you are while that three years or that 10 years is running for the three year, the 10 year unlawful presence bar.
If you just show that since my last departure that triggered this bar, so in Juan's example, we said he left in 2020, he would have to show that I've been out of the country or here in the US.
Just basically like I left and triggered the bar, the clock started running then it's not been three years. Therefore, I need a 601 waiver. He doesn't have to show I've been out of the country for three years.
Okay, so this is super helpful. And I think back to all the consultations I did where I told people, look, if your case were an immigration court, I would go for it.
But unfortunately, you're with USCIS and they're going to require a waiver. And as a result, because your US citizen kid can't be a qualifying relative, you're out of luck.
I wish I could go back and find all of those people who that used to apply to but doesn't anymore. So if you're listening to this and you're like, this is totally different than what my lawyer told me before.
It's because immigration law is ever changing. And this is one of the positive changes that has recently happened here.
Now, it doesn't affect the permanent bar, the permanent unlawful presence bar.
So if you're here, you patch together all the unlawful presence that you've ever had, we'll use Juan as an example. Juan was overstaying like nine months every single time he was here.
But in one specific stay, he would then leave. He was not overstaying by more than a year.
The thing that Juan had going for him is he was always using a tourist visa or always entering lawfully. The permanent bar kicks in when you have an attempted illegal entry after you've been here in the aggregate for more than 12 months in total pieced together,
or you have an actual illegal entry after being here for 12 months, you know, in total patch together. Okay.
So I see this all the time for people and it just breaks my heart because what will happen is they'll come to the US will continue to use our Mexican client base as an example because it really tears your heart out.
They come to the US, you know, usually a husband and wife or maybe even a teenager, you know, 18 years old, come to the US going to make a great life for himself herself.
They say goodbye to their family and not really appreciating that once they got here, how stuck they were because if they left, they would have an unlawful presence bar.
So what I didn't get as a law student, our clients totally get and they know if I leave, there's a wall that goes up behind me and it is very, very permanent. Okay. It's 10 years long usually.
So a lot of people will come let's say it's in the early 2000s. In 2000, I entered the United States illegally. I came to work. I never intended to stay, but then I had kids and then my kids started school.
And then I built a community and I love my church and this is home. This is home. Now my child is 21 years old.
And although I want to leave, you're telling me I can't, but attorney Hillary, I have to tell you one thing. In 2005, when my baby just after my baby was born, my mom got sick in Mexico.
And so I had to go back to Mexico to see her and take care of her because that's my mom. And then I illegally entered after that. And I've been here ever since. Can I fix?
This person has the permanent bar because entered the United States, accrued more than a year of unlawful presence and then left triggering the 10 year bar and then illegally re entered after that before the 10 years had passed.
So this person is not eligible for a nonlawful presence waiver unless and until she spends 10 years in Mexico or any other country outside of the United States, then she can ask and apply for permission to re enter.
This is so hard because people build a life here in the United States and they don't want to return to their old home country for 10 years because their family and their communities are here in the US.
So then what we do is we have to say, if you have the permanent bar, what are ways, what are options for, I won't say getting around the permanent bar, but how can we move this roadblock and we can do that if you re entered because you were experiencing extreme cruelty or battery from a certain person here in the US.
That would be through VAWA. You can do a, you can, there's kind of an exception to the permanent bar through VAWA, the violence that can swim and act.
A T visa, if you've been trafficked here in the United States, it's very common. Unfortunately, this is an exception or a way to avoid having the permanent bar apply to you. You can apply for a waiver for this. Or if you were a victim of crime, a violent crime in the United States and you get a U visa, you can also apply for a waiver of the permanent bar.
So those are the three main ways that if you either don't have a qualifying relative for the three 10 or permanent bar, or you have the, you know, the permanent bar, it just is what it is. It doesn't matter who your qualifying relatives are most of the time.
These are ways that if you see, you know, attorneys who are listening, if you see that this is an issue for my client or those of you who are representing yourself or you're, you're trying to figure out what your family member qualifies for. If you see this, know that the law is structured to punish.
But there are exceptions, almost always to the rule. So work with someone, visit with someone who knows how to maneuver and use all of the tools in your toolbox because yes, a three year or 10 year unlawful presence bar.
That's really hard, especially if you're trying to fix in the US and you don't have a lawful entry and you only have a USC kid who's 21 years old. That's, that's hard.
But with Valor, a conversation about Valor, maybe we can really unlock a lot of things about extreme cruelty that has happened within your, within your family.
So those are the three, the 10 and the permanent bar for unlawful presence purposes. Now we're going to talk about.
Now we're going to talk about, let's see here, what's next fraud and misrepresentation.
This is going to be a very high level, two minute, three minute conversation. So it's not going to be, there's just not as much to cover with, with fraud and misrepresentation.
Here's the big deals.
You need to go Google to make sure that fraud or misrepresentation applies before you start getting kind of worried that perhaps you need a waiver because with fraud and misrepresentation, the USCIS website, I would Google USCIS fraud misrepresentation.
And then there's a training manual that's on there and has like a table of contents and you go to the analysis section and it gives you a breakdown step by step of all of the elements.
That's what we call it in, in a statute, each of the pieces, all the ingredients to a cake. You need to have all of the ingredients to make a fraud cake.
So if all, if one of them is missing, and for example, if I have made a misrepresentation to an immigration officer, but it was not material, I have not, I don't need a waiver for this misrepresentation.
That's, that would be my argument.
And then we go from there.
For example, if I lie about my weight, let's say there's some type of document where it's asking about my weight and I lie about my weight.
That has no bearing on whether or not I can, I would argue, it has no bearing on whether or not I can come in on this tourist visa, because if I was 150 pounds or 250 pounds, you would still grant this green, this, this visa to me.
So it's not material.
So I want you to go look because it's really hard to separate fraud and misrepresentation out because there are different analyses for each type of waiver that you would need.
It's still a 601 waiver, it's still the form you would need.
But the elements of the inadmissibility ground are different, but the USCIS website is super helpful. I'm going to do my best to remember to drop this in the show notes as well, because that can really direct you to where you go and just remember, you have to have all the ingredients to make the cake.
If you don't have one of them, you can't make the cake and therefore you don't need the waiver.
The other thing to think about for fraud and misrepresentation is it follows you forever. So if you made a, if you made a misrepresentation, let's say this is really common on some of our Mexican visa applications where people don't put that they have a US citizen child that they've had a baby here and you know now you're renewing your,
you know, your visa in, in the consulate in Mexico, you don't put that you have a USC kid because you don't really want to answer the question about the reality. You might be coming back to the US to live, not really to be a tourist, but you still want to keep your tourist visa current.
You know, if you're fraud or misrepresentation that is material and you're going to need a waiver that unlike with the unlawful presence bars where like time can heal this, you know, if I wait three years, I don't need the waiver.
I wait 10 years, I don't even need the waiver with fraud or misrepresentation. There's no getting around it. So there's no time that can pass that will kind of forgive this boo boo, if you will.
You also have to have a qualifying relative for it. So in the qualifying relative can't be your US citizen kid. So again, if you are, let's say you, you fibbed on your or unknowingly sometimes it's unknowing and that's always an argument too.
So whether you did it on purpose or not, this thing is on your record and you lied or, you know, I hate to say lie because sometimes people have someone who's like a document prepare who fills it out. It's another language.
They didn't even ask you. They just put no US citizen kid.
So it's not even a lie. It's just, it's now it looks like a misrepresentation to the government because they don't really want to hear your explanation. You signed the form saying that everything was true on it. And now you're stuck holding the bag.
And that is the most disappointing one to see in here.
I look at this and say, okay, do you have a qualifying relative? Like I can usually help you find hardship as your lawyer. That's what I'm trained to do is to help find hardship for proving waivers. But do you have a qualifying relative?
And if the answer is no, I only have a US citizen child over the age of 21. Then again, just like with the conversation before, we got to talk about, can we do VAWA, can we do a TV visa or can we do a U visa because those are going to be ways to help us overcome this fraud and misrepresentation obstacle.
Okay.
So at least let's talk about alien smuggling. This is like a whole thing, and it doesn't apply to a ton of people, but for the people who it does apply to, this is so, so important.
And there are great resources online. The I LRC is fantastic. So if you don't know about the I LRC, please give them a Google, give it a goog and check it out because I LRC has a really great and I've lifted some of the exact examples from what I'm about to teach you for alien smuggling waivers from their guide and it really breaks it down.
It's, it's set up, you know, for lawyers, I feel like it's easy for me to read, but if I were explaining this to my husband, for example, it would be a lot harder for him to understand it.
So my hope is that I can make it even more digestible for you and that when you go over and Google it, I LRC alien smuggling, and that thing pops up, it's like 10 pages long, you're able to read through it and like, Oh, I understand what this is talking about a little bit more.
Okay.
So let's talk about kind of who this applies to. And again, alien smuggling, not my favorite word. I didn't pick it. We're using it because that's what Congress has used.
And when you are doing other Google searches, if I tell you non citizen smuggling, nothing is going to come up. We have to talk about alien smuggling. Okay.
So alien smuggling is a ground of inadmissibility, just like if you have unlawful presence, or if you committed a fraud or misrepresentation, it's a ground of inadmissibility. So it's a, it's a obstacle or a hurdle to you being able to get your green card.
So back in the day, before 1990, only people who smuggled others in exchange for money were inadmissible. So if this, if you, you know, heard about a friend or a neighbor or somebody else who they had brought someone into the US, but they had done it for free, they
hadn't done it for money. And so they didn't need a waiver. That's why that's why because they didn't do it in exchange for money.
Today, however, it doesn't matter whether you did it in 1989, or if you did it a week ago in 2023, if you brought someone into the US, whether it was for money or not, you need to talk to your lawyer before you apply for your green card about whether or not you need an
alien smuggling waiver, because you might have an alien smuggling ground of inadmissibility that could be insurmountable.
So the people like the exceptions for this. So if you bring in your spouse, your kids, or your parents and nobody else, or you're on the receiving end of that, you helped coordinate it.
The only way you can get a waiver is if it was only your kids, only your spouse and only your parents. If there's anybody else included in that car or in the truck or the van or in the group of people, let's say it's your kids and your uncle,
you will not be eligible for a green card and you will not be able to get your green card because you will have an alien smuggling ground of inadmissibility and you can't get a waiver.
Similarly, if you are bringing someone who later becomes your spouse, let's say this is your spouse in Mexico, but you never legally got married and your kids.
So I'm going to use Sarah, for example, let's say that I go to Mexico.
I am Mexican. And my I want to bring my Mexican wife Sarah and our two kids who are also Mexican. So I bring them to the US. I'm not married legally to Sarah yet. Sarah and I have not gotten married.
We, I regard her as my wife. We just don't have the piece of paper from a government official saying that she's my legal wife. So I bring them to the US.
And later on, the kids become citizens and they want to petition for me and for Sarah.
The issue is Sarah would be eligible for a alien smuggling waiver because she only helped bring her kids.
I on the other hand, am not eligible for a waiver because Sarah and I were not married at the time I brought her and our kids to the US.
We were in love. We regarded each other as married, but we weren't married.
So this is where things can get very muddy and very complicated and it can cause a lot of stress for people.
But if you brought anybody else in that group or you who wasn't who weren't your kids, your legal spouse or your parents, don't file your green card.
Like this is a big issue. You need to talk to an experienced lawyer beforehand.
And even if you did bring just your kids, your, I mean, this is a whole inquiry into if you brought your step kids, were they legally your step kids under the, in the eyes of immigration law here in the US.
And that's going to be an inquiry into where they legally your step kids in your home country as well. So it gets really complicated.
And what I hate to see is when people do this, especially if they console or process, they do the process, you know, they apply for things here.
And then they go to Mexico, they go to see you at war as for their interview and they're hit with an alien smuggling ground of inadmissibility.
So they need a 601 waiver and they may not be able to get it because they smuggled or helped assist somebody who wasn't their kid.
So maybe their cousin or their uncle, something like that. And, and man, this can really be a big problem.
Now, the other thing that I see is if you're applying for a green card and you say you did only bring your child, your spouse or your parent, but you're applying for a green card through your US citizen sibling, you're also not eligible for a alien smuggling waiver.
So the analysis is very robust. So I guess the simple answer is this should get your feet wet and help you raise red flags for do I need this thing?
I may need this thing. So now I know, don't touch the hot oven a second time. Go check out the I LRC guide. Contact a skilled immigration lawyer.
Don't talk to friends or family about this in the sense of trying to get advice from them on what they've heard about, because this is so complicated, even for someone like me who's been doing this for more than 10 years.
I always go line by line through the statute to make sure that yes, you need this. Yes, you qualify for this. And yes, we can do this before we pull the trigger and get your green card filed. Okay.
Now, there are also issues. All of these apply all of these, this whole conversation today applies if you are applying for a green card in the US.
Sometimes you can apply for a green card, not just with USCIS, you can also do it with the immigration court. But if you're, if someone's trying to deport you, and you're in removal proceedings, the alien smuggling ground can be a whole other thing.
And especially if you've been convicted, because if you've been convicted for human smuggling or alien smuggling, then that can be an aggravated felony.
So we again, open up so many different things that if you have a case like this, hear me out. I want to be able to help you and I want to help you right here right now for free.
But you will, you will do yourself a disservice if you listen to this podcast and self represent, you need to talk to a skilled lawyer if you have a conviction or in your removal proceedings.
Or if you're about to go to see you at war as for a green card interview and you start hearing this and thinking, I might have an alien smuggling ground of an immiscibility. I need to talk to someone.
Friends, I hope this is helpful. We've covered a ton of ground 601 waivers or this like whole animal. I want to give you a little hope as we conclude here today. And the hope is this.
We at New Frontier Immigration Law have an outstanding reputation for waivers. Like we, we are, I won't say bulletproof, but we've, you know, never had an issue getting a 601 granted.
Not to say that we haven't had to fight hard for them, but we know how to do waivers.
If you need mentoring on how to do a waiver or you need additional help so that for your clients or for yourself, you feel like I just need a little extra.
My ask is that you send us a message on Facebook, go to the New Frontier Immigration Law page and send us a message on Facebook. And maybe one of our attorneys can visit with you or guide you should you need that help.
I of course hope that this today has been helpful. Maybe you don't even need an unlawful presence waiver. Like wouldn't that be so amazing because you left and you re-entered and spend 10 years and you're good to go.
Let's go get our green card. But in case that's not your situation and maybe you have the permanent bar, let's blow open the bar indoors and figure out what else is in there so we can hopefully help you.
601, if you have been told you need a 601 waiver, don't give up hope because they can be one. We are living proof of it.
And so are dozens and dozens and dozens of our clients who are on the receiving end of green cards after filing a 601 waiver. Thank you so much for tuning in.
This is helpful. Please share with a friend, with an Amiga and a big shout out to my Amiga's Facebook group who requested this specific topic because I want to make sure that we give things of value to everybody because we're all serving immigrants and making the world better.
Our mission at New Frontiers to help a million people get their papers and this podcast is one of the ways that we're able to do that. And I hope that someday you send a comment and saying, I listened to this podcast.
I got my 601 approved and I can see a selfie of you with your green card. Have a great day friends.
My friend, I'm so glad you joined me today. If you have a friend or family member who may need some immigration law guidance or even just day to day encouragement, please send them a text or email or a DM on social media and say, Hey, I think this podcast is going to help you.
I sure wish someone had given me the tips I'm sharing here years and years ago when I was starting out as an immigration lawyer.
Thank you so much for being here. I'll see you next week. Same time, same place. Adios.