What is cancellation of removal?
Cancellation of removal is a form of immigration relief for individuals who have been placed in removal (deportation) proceedings and meet certain requirements. As immigration judges can approve only 4,000 cancellation of removal requests each fiscal year,not all foreign aliens meeting the requirements will be granted relief. If granted, the foreign national may adjust to or maintain permanent resident status.
Who is eligible?
Permanent residents who can demonstrate the following criteria may apply:
Permanent resident status for at least 5 years;
At least 7 years continuous residence in the U.S. after lawful admission in any status prior to the Notice to Appear or the criminal activity triggering immigration proceedings;
Good moral character; and
No aggravated felony convictions.
Non-permanent residents who meet the qualifications below may also apply:
Continuous physical presence in the U.S. for 10 years or more;
Good moral character;
No convictions under sections 212(a)(2), 237(a)(2) or 237(a)(3) of the Immigration and Nationality Act (INA);and
Your removal would result in exceptional and extremely unusual hardship to a qualifying U.S citizen spouse, parent or child.
You or your child has been battered or subjected to extreme cruelty in the U.S. by a U.S. citizen or lawful permanent resident spouse or parent;
You have maintained continuous physical presence in the U.S. for three (3) years or more;
You are not inadmissible; you are not deportable; and you have not been convicted of an aggravated felony;
Your removal would result in extreme hardship to yourself or your child; and
You are deserving of a favorable exercise of discretion.
Note: If you have a criminal record, see an immigration attorney to determine your eligibility. Criminal defense attorneys should consult an immigration attorney to determine the immigration consequences of any pleas before entry.
How do I apply?
Consult a licensed immigration attorney to determine your eligibility. If you meet the qualifications, your attorney will help you complete your application and prepare your supporting evidence. You will be responsible for filing and biometrics fees. The Department of Homeland Security (DHS) will provide instructions for providing biometric information to US Customs and Immigration Services . Your application should be filed with the appropriate immigration court, and copies should be served on DHS and Immigration and Customs Enforcement (ICE).
Note: A fee waiver, available if you can demonstrate that you are unable to pay the fee,requires a separate application.
What supporting evidence is required?
You must provide documentary evidence of your status and continuous physical presence in the U.S. This may includebank statements, leases, school records, proof of insurance, employment records and tax returns.
Good moral character may be demonstrated through police records and background checks from each jurisdiction where you have resided as well as affidavits from employers, neighbors, church members and other U.S. citizen friends and acquaintances who can attest to your character. If you have blemishes in your criminal record, proof of rehabilitation should be provided.
If you are a non-permanent resident, you must also prove your legal relationship to the U.S. citizen or permanent resident you claim would suffer hardship by your removal. Official certification includes birth records, marriage certificates, and proof of divorce or termination of marriage. Evidence of financial hardship alone is insufficent, though it will be considered as a factor. More persuasive evidence includes proof of physical and emotional hardship that will be exacerbated by your removal. This evidence can be obtained by doctors’ and psychologists’ reports.
As with all discretionary forms of relief, the Immigration Judge may consider any and all factors in determining whether or not the foreign national should receive relief. Your testimony is the most important evidence. If an Immigration Judge denies a request for cancellation of removal, the denial may be appealed to the Board of Immigration Appeals (BIA).
If you are denied cancellation of removal or do not meet the requirements, alternative forms of relief may be available, including
- A waiver;
- Withholding of Removal;
- Protection under the Convention Against Torture (CAT);
- Voluntary Departure;
- Temporary Protected Status (TPS);
- Prosecutorial Discretion; and
- Deferred Action.
What is a 601A Waiver?
601A Waivers are sometimes referred to as stateside or provisional waivers. These waivers permit certain qualified immediate relatives of U.S. citizens to apply for an unlawful presence waiver prior to departing the U.S. This option is only available to those whose qualifying immediate relative would suffer undue hardship should the foreign national be unable to remain in the U.S. The 601A waivers were created to address the dilemma certain individuals face when they have accrued unlawful presence time in the U.S. must depart the U.S. to obtain an immigrant visa, where the very act of departing triggers a three (3) or ten (10) year bar.
Who is eligible for a 601A Waiver?
Certain immediate relatives of U.S. citizens may use this application to request a provisional waiver of the unlawful presence grounds of inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act (INA), before they depart the United States to appear at a U.S. Embassy or U.S. Consulate for an immigrant visa interview.
You may file this application to seek a provisional unlawful presence waiver if you:
- Are physically present in the United States;
- Are at least 17 years of age at the time of filing;
- Are the beneficiary of an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, that classifies you as the immediate relative of a U.S. citizen;
- Have a pending immigrant visa case classifying you as an immediate relative with the Department of State (DOS);
- Believe you are or will be inadmissible only for a period of unlawful presence in the United States that was:
a) More than 180 days, but less than 1 year, during a single stay (INA section 212(a)(9)(B)(i)(I)); or
b) One year or more during a single stay (INA section 212(a)(9)(B)(i)(II)).
How do I apply for a 601A Waiver?
Consult the advice of a licensed immigration attorney to determine if you are eligible for a 601A Waiver. The 601A Waiver is a stand-alone application. Once it is determined that you meet the qualifications for a 601A Waiver, you must complete Form 601A, Application for Provisional Unlawful Presence Waiver, with the filing fee of $585.00, and file it with the appropriate lockbox facility. You must also provide evidence of an approved Form I-130, Petition for Alien Relative, or Form, I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Additionally, you must also provide a copy of the DOS fee receipt for the immigrant visa processing fee and information about your scheduled visa interview (if applicable).
Note: A fee waiver is not available.
What supporting evidence must be provided?
The most crucial necessary evidence is evidence of the undue hardship your qualifying relative would face should you be unable to reenter the U.S. You must also provide official certification to establish your relationship to the U.S. citizen or permanent resident that you claim would suffer hardship by your removal. Official certification includes birth records, marriage certificates, and proof of divorce or termination of marriage. Evidence establishing hardship must include more than evidence that the U.S. citizen or permanent resident will suffer financial hardship, though financial hardship will be considered as a factor. More persuasive evidence includes evidence of physical and emotional hardship that will be exacerbated by your removal. This evidence can be obtained by doctors’ and psychologists’ reports.
A 601A Waiver is not appealable, though you may resubmit a new application should your situation change. Therefore, the decision to apply for a 601A Waiver must be carefully considered. USCIS has stated that it will not share information regarding 601A Waiver applicants with ICE, though this policy may change at any time. Moreover, USCIS may share such information where there is evidence of fraud or threats to national security.
If you are denied, you may leave the U.S. and attend your immigrant visa interview at a U.S. embassy or consulate in your home country and then submit a traditional waiver of inadmissibility application using Form I-601, Application for Waiver of Grounds of Inadmissibility. However, be aware that if this waiver is denied, you risk a lengthy separation from your U.S. family, as you will be barred from reentering the U.S. for three (3) or ten (10) years.