1 00:00:00,000 --> 00:00:06,000 Hi, I'm Hilary Walsh, a serial entrepreneur, award-winning immigration lawyer, law professor, 2 00:00:06,000 --> 00:00:09,000 TEDx speaker, and Raven Phoenix Suns fan. 3 00:00:09,000 --> 00:00:14,000 Over the past decade, I've helped thousands of immigrants live free in the United States. 4 00:00:14,000 --> 00:00:19,000 I'm talking work permits, social security numbers, green cards, their citizenship, 5 00:00:19,000 --> 00:00:24,000 VAWA, TV visa, U visa, and lots of successful appeals. 6 00:00:24,000 --> 00:00:29,000 Here's the thing, immigration law is super complicated and legal advice. 7 00:00:29,000 --> 00:00:31,000 Well, it can be pretty expensive. 8 00:00:31,000 --> 00:00:39,000 So I created the Immigration Law Made Easy podcast to share my 10 plus years of experience with you for free. 9 00:00:39,000 --> 00:00:47,000 So if you're looking for tried and true, no BS, step-by-step strategies and tips on how to win your immigration case 10 00:00:47,000 --> 00:00:52,000 and live truly free in the United States, you're in the right place, my friend. 11 00:00:52,000 --> 00:00:54,000 Let's get started. 12 00:00:54,000 --> 00:00:59,000 What is up, my immigration law made easy friends and family. 13 00:00:59,000 --> 00:01:02,000 Today, we're going to talk about 601 waivers. 14 00:01:02,000 --> 00:01:11,000 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 15 00:01:11,000 --> 00:01:13,000 that we're going to have to swim through today. 16 00:01:13,000 --> 00:01:18,000 But I want to cover three main areas that you need a 601 waiver. 17 00:01:18,000 --> 00:01:23,000 This is not for a 601A waiver, although some of that applies as well. 18 00:01:23,000 --> 00:01:30,000 I'm really talking about 601 waivers specifically for if you need to adjust your status here in the United States, 19 00:01:30,000 --> 00:01:33,000 which means I'm applying for a green card. 20 00:01:33,000 --> 00:01:38,000 And I usually will be doing that either through a work opportunity or if you're listening to this podcast, 21 00:01:38,000 --> 00:01:41,000 what we specialize in is family based immigration. 22 00:01:41,000 --> 00:01:44,000 So I have an immediate family member who has status. 23 00:01:44,000 --> 00:01:50,000 I'm applying for a green card, but I have one of these wrinkles in my case where I need a 601 waiver. 24 00:01:50,000 --> 00:01:52,000 We're going to cover three of those. 25 00:01:52,000 --> 00:01:56,000 One of those is unlawful presence when you need a 601 waiver for unlawful presence. 26 00:01:56,000 --> 00:02:02,000 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. 27 00:02:02,000 --> 00:02:08,000 Two, when you have fraud or misrepresentation and sometimes that arises as well. 28 00:02:08,000 --> 00:02:11,000 And three for alien smuggling. 29 00:02:11,000 --> 00:02:13,000 Now, I don't just as an outset thing. 30 00:02:13,000 --> 00:02:15,000 I don't like the word alien. 31 00:02:15,000 --> 00:02:19,000 I do not believe that immigrants are aliens, but that's how our immigration laws are written. 32 00:02:19,000 --> 00:02:28,000 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, 33 00:02:28,000 --> 00:02:30,000 they talk about alien smuggling. 34 00:02:30,000 --> 00:02:33,000 So we're just going to keep it simple and carry on. 35 00:02:33,000 --> 00:02:40,000 I really urge everyone to use the word non-citizen because that's what you are until you're not. 36 00:02:40,000 --> 00:02:49,000 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. 37 00:02:49,000 --> 00:02:55,000 But for today, alien smuggling, it is we are going to put, because it's going to be a lot of information. 38 00:02:55,000 --> 00:03:03,000 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. 39 00:03:03,000 --> 00:03:12,000 We're going to put timestamps on unlawful presence, on fraud and misrepresentation and on alien smuggling in the show notes. 40 00:03:12,000 --> 00:03:25,000 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. 41 00:03:25,000 --> 00:03:27,000 Does my client need a waiver? 42 00:03:27,000 --> 00:03:34,000 That way you can kind of jump to whatever is most useful for you. So let's get started. 43 00:03:34,000 --> 00:03:43,000 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. 44 00:03:43,000 --> 00:03:47,000 And again, this is when we talk about a 601 waiver. 45 00:03:47,000 --> 00:04:00,000 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. 46 00:04:00,000 --> 00:04:06,000 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. 47 00:04:06,000 --> 00:04:20,000 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. 48 00:04:20,000 --> 00:04:28,000 Today we're really just talking about I 601 waivers. So let's talk about unlawful presence. 49 00:04:28,000 --> 00:04:41,000 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. 50 00:04:41,000 --> 00:04:54,000 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. 51 00:04:54,000 --> 00:05:06,000 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. 52 00:05:06,000 --> 00:05:20,000 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. 53 00:05:20,000 --> 00:05:39,000 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. 54 00:05:39,000 --> 00:05:52,000 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. 55 00:05:52,000 --> 00:05:58,000 So let's say I enter on a tourist visa. I'm Mexican. I entered on a tourist visa. 56 00:05:58,000 --> 00:06:11,000 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. 57 00:06:11,000 --> 00:06:24,000 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. 58 00:06:24,000 --> 00:06:42,000 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 59 00:06:42,000 --> 00:06:55,000 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. 60 00:06:55,000 --> 00:07:07,000 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. 61 00:07:07,000 --> 00:07:19,000 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. 62 00:07:19,000 --> 00:07:31,000 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. 63 00:07:31,000 --> 00:07:37,000 And then I'll give some examples in reverse order on the three year bar, 10 year bar and permanent bar. 64 00:07:37,000 --> 00:07:52,000 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. 65 00:07:52,000 --> 00:07:53,000 Okay. 66 00:07:53,000 --> 00:08:07,000 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. 67 00:08:07,000 --> 00:08:26,000 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. 68 00:08:26,000 --> 00:08:39,000 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. 69 00:08:39,000 --> 00:08:49,000 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. 70 00:08:49,000 --> 00:09:02,000 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. 71 00:09:02,000 --> 00:09:14,000 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. 72 00:09:14,000 --> 00:09:26,000 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. 73 00:09:26,000 --> 00:09:37,000 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. 74 00:09:37,000 --> 00:09:46,000 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. 75 00:09:46,000 --> 00:09:58,000 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. 76 00:09:58,000 --> 00:10:07,000 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. 77 00:10:07,000 --> 00:10:17,000 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. 78 00:10:17,000 --> 00:10:20,000 Let's use six months. We'll stay with our example. 79 00:10:20,000 --> 00:10:34,000 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. 80 00:10:34,000 --> 00:10:39,000 And you've been here now for over one year in one single stay and then you leave. 81 00:10:39,000 --> 00:10:47,000 Once you leave, you have to wait for 10 years before you're allowed to apply to come back. 82 00:10:47,000 --> 00:10:53,000 Okay. That's the 10 year bar. And last but not least is the three year bar. 83 00:10:53,000 --> 00:11:05,000 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. 84 00:11:05,000 --> 00:11:11,000 And you stay from over stay for more than 180 days, but less than one year. 85 00:11:11,000 --> 00:11:18,000 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. 86 00:11:18,000 --> 00:11:23,000 Okay. So now you've got six months and one day of unlawful presence and then you leave. 87 00:11:23,000 --> 00:11:28,000 Now you have to wait three years before you're allowed to come back without a waiver. 88 00:11:28,000 --> 00:11:36,000 Now you can get waivers for a 10 year bar or a three year bar so that you can come back earlier. 89 00:11:36,000 --> 00:11:41,000 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. 90 00:11:41,000 --> 00:12:02,000 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. 91 00:12:02,000 --> 00:12:12,000 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. 92 00:12:12,000 --> 00:12:22,000 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. 93 00:12:22,000 --> 00:12:32,000 Let's pretend that there simply wasn't a watch. There was not a clock counting unlawful presence before April 1, 1997. 94 00:12:32,000 --> 00:12:40,000 Things after and that includes the permanent bar. There's no permanent bar for unlawful reentry after an aggregate of a year or more. 95 00:12:40,000 --> 00:12:50,000 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. 96 00:12:50,000 --> 00:12:58,000 Draw a line for when the unlawful presence was. So it's like, okay, we have these entries and these exits. 97 00:12:58,000 --> 00:13:06,000 And then over here we have, and those don't count because they're before April 1, 1997 for unlawful presence purposes. 98 00:13:06,000 --> 00:13:14,000 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. 99 00:13:14,000 --> 00:13:27,000 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. 100 00:13:27,000 --> 00:13:39,000 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. 101 00:13:39,000 --> 00:13:47,000 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. 102 00:13:47,000 --> 00:13:57,000 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. 103 00:13:57,000 --> 00:14:03,000 Okay, so let's go through a couple more examples for people who didn't have permission when they entered. 104 00:14:03,000 --> 00:14:14,000 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. 105 00:14:14,000 --> 00:14:21,000 So let's talk about illegal entries, unlawful presence after April 1, 1997. 106 00:14:21,000 --> 00:14:26,000 We'll start using January 1, 1998, just for simplicity. 107 00:14:26,000 --> 00:14:38,000 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. 108 00:14:38,000 --> 00:14:40,000 How can we help them? Okay. 109 00:14:40,000 --> 00:14:44,000 So you illegally enter the United States. 110 00:14:44,000 --> 00:14:56,000 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. 111 00:14:56,000 --> 00:15:01,000 Things changed when Bill Clinton was president, we had this massive immigration reform. 112 00:15:01,000 --> 00:15:13,000 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. 113 00:15:13,000 --> 00:15:21,000 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. 114 00:15:21,000 --> 00:15:32,000 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. 115 00:15:32,000 --> 00:15:40,000 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. 116 00:15:40,000 --> 00:15:48,000 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. 117 00:15:48,000 --> 00:16:05,000 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? 118 00:16:05,000 --> 00:16:12,000 And I tell Sarah, unfortunately, no, right now you can't. Here's why. 119 00:16:12,000 --> 00:16:26,000 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. 120 00:16:26,000 --> 00:16:31,000 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. 121 00:16:31,000 --> 00:16:50,000 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. 122 00:16:50,000 --> 00:17:04,000 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. 123 00:17:04,000 --> 00:17:15,000 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. 124 00:17:15,000 --> 00:17:38,000 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. 125 00:17:38,000 --> 00:17:51,000 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. 126 00:17:51,000 --> 00:18:09,000 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. 127 00:18:09,000 --> 00:18:26,000 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? 128 00:18:26,000 --> 00:18:52,000 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. 129 00:18:52,000 --> 00:19:05,000 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? 130 00:19:05,000 --> 00:19:12,000 This might start to feel a little complicated because it's strategy, it's a legal strategy. 131 00:19:12,000 --> 00:19:32,000 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. 132 00:19:32,000 --> 00:19:38,000 You can tell I talk about it with great comfort and ease because it's something we do every single day. Okay. 133 00:19:38,000 --> 00:19:50,000 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. 134 00:19:50,000 --> 00:19:51,000 Okay. 135 00:19:51,000 --> 00:20:09,000 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. 136 00:20:09,000 --> 00:20:20,000 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. 137 00:20:20,000 --> 00:20:41,000 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. 138 00:20:41,000 --> 00:20:49,000 He's only ever overstayed by nine months. And then he re-enters with a tourist visa the next time. 139 00:20:49,000 --> 00:21:02,000 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. 140 00:21:02,000 --> 00:21:15,000 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. 141 00:21:15,000 --> 00:21:35,000 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. 142 00:21:35,000 --> 00:21:41,000 So we're going to need to file a 601 waiver for you to waive the three-year bar. 143 00:21:41,000 --> 00:21:59,000 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. 144 00:21:59,000 --> 00:22:07,000 Remember, it's just spouses and parents who have status who can be our qualifying relatives for unlawful present 601 waivers. 145 00:22:07,000 --> 00:22:21,000 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. 146 00:22:21,000 --> 00:22:33,000 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. 147 00:22:33,000 --> 00:22:40,000 So that's pretty messed up in my opinion, but that was the 90s and we're in the 2020s now. 148 00:22:40,000 --> 00:22:47,000 One more reason why we need to have immigration reform because families belong together and I think we all agree with that. 149 00:22:47,000 --> 00:22:58,000 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. 150 00:22:58,000 --> 00:23:09,000 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. 151 00:23:09,000 --> 00:23:19,000 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. 152 00:23:19,000 --> 00:23:25,000 This is what my law professor was really trying to reiterate and I'll keep reiterating it for you as well. 153 00:23:25,000 --> 00:23:30,000 So let's put some specific dates on this. You know what I'm talking about. 154 00:23:30,000 --> 00:23:38,000 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. 155 00:23:38,000 --> 00:23:48,000 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. 156 00:23:48,000 --> 00:24:04,000 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. 157 00:24:04,000 --> 00:24:12,000 That would just be his decision. We have a great track record. I mean, like an unstoppable, wonderful track record with 601 waivers. 158 00:24:12,000 --> 00:24:20,000 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. 159 00:24:20,000 --> 00:24:35,000 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. 160 00:24:35,000 --> 00:24:37,000 Let's just go for it. That's what I would advise. 161 00:24:37,000 --> 00:24:43,000 I'm assuming that there are no other facts that I need to know about, but this is just a made up person. Okay. 162 00:24:43,000 --> 00:25:00,000 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. 163 00:25:00,000 --> 00:25:11,000 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. 164 00:25:11,000 --> 00:25:26,000 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. 165 00:25:26,000 --> 00:25:36,000 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. 166 00:25:36,000 --> 00:25:50,000 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. 167 00:25:50,000 --> 00:26:11,000 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. 168 00:26:11,000 --> 00:26:25,000 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. 169 00:26:25,000 --> 00:26:36,000 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. 170 00:26:36,000 --> 00:26:46,000 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. 171 00:26:46,000 --> 00:26:56,000 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. 172 00:26:56,000 --> 00:27:07,000 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. 173 00:27:07,000 --> 00:27:14,000 It's because immigration law is ever changing. And this is one of the positive changes that has recently happened here. 174 00:27:14,000 --> 00:27:20,000 Now, it doesn't affect the permanent bar, the permanent unlawful presence bar. 175 00:27:20,000 --> 00:27:32,000 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. 176 00:27:32,000 --> 00:27:38,000 But in one specific stay, he would then leave. He was not overstaying by more than a year. 177 00:27:38,000 --> 00:27:56,000 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, 178 00:27:56,000 --> 00:28:06,000 or you have an actual illegal entry after being here for 12 months, you know, in total patch together. Okay. 179 00:28:06,000 --> 00:28:19,000 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. 180 00:28:19,000 --> 00:28:30,000 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. 181 00:28:30,000 --> 00:28:41,000 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. 182 00:28:41,000 --> 00:28:54,000 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. 183 00:28:54,000 --> 00:29:07,000 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. 184 00:29:07,000 --> 00:29:15,000 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. 185 00:29:15,000 --> 00:29:29,000 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. 186 00:29:29,000 --> 00:29:42,000 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? 187 00:29:42,000 --> 00:30:01,000 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. 188 00:30:01,000 --> 00:30:20,000 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. 189 00:30:20,000 --> 00:30:35,000 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. 190 00:30:35,000 --> 00:30:57,000 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. 191 00:30:57,000 --> 00:31:05,000 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. 192 00:31:05,000 --> 00:31:27,000 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. 193 00:31:27,000 --> 00:31:41,000 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. 194 00:31:41,000 --> 00:32:00,000 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. 195 00:32:00,000 --> 00:32:18,000 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. 196 00:32:18,000 --> 00:32:28,000 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. 197 00:32:28,000 --> 00:32:37,000 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. 198 00:32:37,000 --> 00:32:46,000 So those are the three, the 10 and the permanent bar for unlawful presence purposes. Now we're going to talk about. 199 00:32:46,000 --> 00:32:51,000 Now we're going to talk about, let's see here, what's next fraud and misrepresentation. 200 00:32:51,000 --> 00:33:03,000 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. 201 00:33:03,000 --> 00:33:05,000 Here's the big deals. 202 00:33:05,000 --> 00:33:24,000 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. 203 00:33:24,000 --> 00:33:37,000 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. 204 00:33:37,000 --> 00:33:46,000 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. 205 00:33:46,000 --> 00:33:59,000 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. 206 00:33:59,000 --> 00:34:01,000 That's, that would be my argument. 207 00:34:01,000 --> 00:34:03,000 And then we go from there. 208 00:34:03,000 --> 00:34:12,000 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. 209 00:34:12,000 --> 00:34:29,000 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. 210 00:34:29,000 --> 00:34:31,000 So it's not material. 211 00:34:31,000 --> 00:34:45,000 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. 212 00:34:45,000 --> 00:34:48,000 It's still a 601 waiver, it's still the form you would need. 213 00:34:48,000 --> 00:35:05,000 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. 214 00:35:05,000 --> 00:35:11,000 If you don't have one of them, you can't make the cake and therefore you don't need the waiver. 215 00:35:11,000 --> 00:35:31,000 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, 216 00:35:31,000 --> 00:35:47,000 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. 217 00:35:47,000 --> 00:36:02,000 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. 218 00:36:02,000 --> 00:36:14,000 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. 219 00:36:14,000 --> 00:36:30,000 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. 220 00:36:30,000 --> 00:36:45,000 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. 221 00:36:45,000 --> 00:36:48,000 They didn't even ask you. They just put no US citizen kid. 222 00:36:48,000 --> 00:37:01,000 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. 223 00:37:01,000 --> 00:37:05,000 And that is the most disappointing one to see in here. 224 00:37:05,000 --> 00:37:20,000 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? 225 00:37:20,000 --> 00:37:41,000 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. 226 00:37:41,000 --> 00:37:43,000 Okay. 227 00:37:43,000 --> 00:37:55,000 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. 228 00:37:55,000 --> 00:38:20,000 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. 229 00:38:20,000 --> 00:38:32,000 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. 230 00:38:32,000 --> 00:38:47,000 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. 231 00:38:47,000 --> 00:38:48,000 Okay. 232 00:38:48,000 --> 00:38:58,000 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. 233 00:38:58,000 --> 00:39:08,000 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. 234 00:39:08,000 --> 00:39:23,000 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. 235 00:39:23,000 --> 00:39:44,000 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 236 00:39:44,000 --> 00:39:50,000 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. 237 00:39:50,000 --> 00:40:08,000 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 238 00:40:08,000 --> 00:40:16,000 alien smuggling waiver, because you might have an alien smuggling ground of inadmissibility that could be insurmountable. 239 00:40:16,000 --> 00:40:32,000 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. 240 00:40:32,000 --> 00:40:50,000 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, 241 00:40:50,000 --> 00:41:02,000 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. 242 00:41:02,000 --> 00:41:14,000 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. 243 00:41:14,000 --> 00:41:22,000 So I'm going to use Sarah, for example, let's say that I go to Mexico. 244 00:41:22,000 --> 00:41:37,000 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. 245 00:41:37,000 --> 00:41:49,000 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. 246 00:41:49,000 --> 00:41:58,000 And later on, the kids become citizens and they want to petition for me and for Sarah. 247 00:41:58,000 --> 00:42:09,000 The issue is Sarah would be eligible for a alien smuggling waiver because she only helped bring her kids. 248 00:42:09,000 --> 00:42:18,000 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. 249 00:42:18,000 --> 00:42:22,000 We were in love. We regarded each other as married, but we weren't married. 250 00:42:22,000 --> 00:42:29,000 So this is where things can get very muddy and very complicated and it can cause a lot of stress for people. 251 00:42:29,000 --> 00:42:41,000 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. 252 00:42:41,000 --> 00:42:46,000 Like this is a big issue. You need to talk to an experienced lawyer beforehand. 253 00:42:46,000 --> 00:43:00,000 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. 254 00:43:00,000 --> 00:43:07,000 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. 255 00:43:07,000 --> 00:43:15,000 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. 256 00:43:15,000 --> 00:43:22,000 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. 257 00:43:22,000 --> 00:43:31,000 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. 258 00:43:31,000 --> 00:43:38,000 So maybe their cousin or their uncle, something like that. And, and man, this can really be a big problem. 259 00:43:38,000 --> 00:43:57,000 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. 260 00:43:57,000 --> 00:44:11,000 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? 261 00:44:11,000 --> 00:44:23,000 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. 262 00:44:23,000 --> 00:44:34,000 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. 263 00:44:34,000 --> 00:44:48,000 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. 264 00:44:48,000 --> 00:44:58,000 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. 265 00:44:58,000 --> 00:45:13,000 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. 266 00:45:13,000 --> 00:45:22,000 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. 267 00:45:22,000 --> 00:45:34,000 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. 268 00:45:34,000 --> 00:45:45,000 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. 269 00:45:45,000 --> 00:45:55,000 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. 270 00:45:55,000 --> 00:46:07,000 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. 271 00:46:07,000 --> 00:46:21,000 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. 272 00:46:21,000 --> 00:46:27,000 Not to say that we haven't had to fight hard for them, but we know how to do waivers. 273 00:46:27,000 --> 00:46:40,000 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. 274 00:46:40,000 --> 00:46:54,000 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. 275 00:46:54,000 --> 00:47:06,000 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. 276 00:47:06,000 --> 00:47:18,000 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. 277 00:47:18,000 --> 00:47:27,000 601, 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. 278 00:47:27,000 --> 00:47:36,000 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. 279 00:47:36,000 --> 00:47:53,000 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. 280 00:47:53,000 --> 00:48:04,000 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. 281 00:48:04,000 --> 00:48:12,000 I got my 601 approved and I can see a selfie of you with your green card. Have a great day friends. 282 00:48:12,000 --> 00:48:30,000 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. 283 00:48:30,000 --> 00:48:36,000 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. 284 00:48:36,000 --> 00:48:42,000 Thank you so much for being here. I'll see you next week. Same time, same place. Adios.