The I-601 Waiver: A Pathway to Overcoming Inadmissibility Due to Alien Smuggling

Navigating the complex world of immigration laws and waivers can be complex and overwhelming, especially regarding cases involving alien smuggling. While many associate “alien smuggling” with the illegal transportation or escorting of individuals across borders, the scope of this term, as defined by immigration law, is significantly broader. In this article, we’ll go over the intricacies of alien smuggling, exploring its definition and, more importantly, examining the potential eligibility for waivers when facing inadmissibility due to such allegations.

Alien Smuggling Under Section 212(a)(6)(E)(i) of the Immigration and Nationality Act (INA) 

According to section 212(a)(6)(E)(i) of the INA, alien smuggling refers to knowingly assisting or encouraging someone to enter or attempt to enter the U.S. illegally. It’s not necessary for the smuggler to be motivated by profit or receive any compensation. In fact, it’s often family members who haven’t received compensation who are accused of smuggling. Alien smuggling can manifest in a variety of situations. For example, following the selection in the Diversity Lotto, a person may pay the Lottery winner to enter into a sham marriage to become eligible for immigration as a spouse. Likewise, lying about a dependent applicant’s age or marital status, falsely claiming a child as one’s own, including an outsider into a group for visa purposes, or providing false documents can all lead to allegations of alien smuggling. 

If an individual unknowingly aids someone who isn’t eligible to enter the U.S. or remains in the U.S. without lawful status, they cannot be charged with alien smuggling. That’s why determining the intention and knowledge behind someone’s assistance with the U.S. or obtaining a visa is crucial. An honest lack of awareness regarding someone’s marital status or eligibility, for example, can serve as a defense against accusations of alien smuggling. In addition, it’s essential to establish that the intent to remain or change status in the U.S. arose after entering the country and cannot be used as a basis to accuse a family member who assisted in the visitor visa process of alien smuggling.

Foreign nationals found guilty of smuggling may be deported or found inadmissible to the U.S. 

Eligibility Requirements for the Alien Smuggling I-601 Waiver

Fortunately, there are circumstances where individuals involved in alien smuggling may be eligible for a waiver of inadmissibility. This waiver allows them to apply for an immigration benefit or avoid deportation.

To be eligible for the waiver, several criteria must be met:

1. The individual must either be a lawful permanent resident or be in the process of applying for a family-based immigrant visa or fiancé visa. It’s important to note that this waiver is not applicable for employment-based visas, student visas, or visitor visas.
2. The individual assisted in bringing their spouse, parent, son, or daughter to the United States at the time of entry. In cases involving spouses, an individual may still apply for the waiver, even if the couple has divorced after the smuggling incident occurred. However, the waiver is not available if the person helped smuggle someone who isn’t one of these direct family members. 
3. The individual must demonstrate that they deserve the waiver based on humanitarian grounds, such as to keep the family united or because of public interest. 

Questions to Consider to Determine Eligibility

To request an I60-1 waiver, you’ll need to complete and submit Form I-601. While it’s always recommended to have an experienced immigration attorney assist with your waiver package, it’s also beneficial to familiarize yourself with the form and its questions. This way, you can provide your attorney with all the necessary information to build a strong case.

In addition, it’s essential to consider your individual circumstances and why you deserve a waiver. You must demonstrate to the U.S. Immigration and Citizenship Services (USCIS) that you meet the criteria for humanitarian purposes, family unity or that it’s in the public interest. Here are some questions to help you determine whether you qualify for a waiver in these three categories.

Humanitarian Purposes:

Family Unity:

In the Public Interest:

These questions can serve as a starting point in evaluating your eligibility for a waiver within each category. Depending on the circumstances of your case, additional factors may qualify you for an I-601 waiver. 

Seeking Legal Representation

Obtaining an I-601 waiver of inadmissibility can be a complex and challenging process. It requires a thorough understanding of the legal requirements, as well as a deep knowledge of the individual circumstances that may qualify an applicant for a waiver.