Inadmissibility and I-601 Waiver for Thai Fiancees and Spouses

Many Thai-American couples seeking to travel to the United States must endure the Inadmissibility and Waiver process. The following article is aimed at explaining how inadmissibility is determined and how waivers are obtained.

WHAT DOES "GROUNDS OF INADMISSIBILITY" MEAN?

The United States Immigration and Nationality Act (INA) stipulates certain conduct that would constitute grounds for precluding a prospective Immigrant from entering the United States. The statutory expression for these types of behavior: Grounds of Inadmissibility.

WHAT ARE THE GROUNDS OF INADMISSIBILITY FREQUENTLY ENCOUNTERED? HOW DOES INADMISSIBILITY AFEECT A THAI FIANCEE OR SPOUSE IMMIGRATING TO THE USA?

The INA stipulates that any prospective Immigrant who has a communicable disease shall be denied entry to the United States. In Thailand, the most common communicable diseases giving rise to inadmissibility are: AIDS/HIV, Syphilis, Tuberculosis, and gonorrhea. In cases where the disease can be cured, the issue of the Thai's inadmissibility is resolved with the suppression of the disease. Unfortunately, in the case of HIV/AIDS, which is incurable as of the time of this writing, a waiver must be obtained before a prospective immigrant may enter the USA.

As well as health related concerns, legal concerns are also of importance under the INA. Convictions for drug related offenses are considered a justification for finding a Thai loved one to be inadmissible to the United States. At the same time, perpetration of criminal acts of "moral turpitude" by the Thai fiancee or spouse is grounds for finding the Thai inadmissible to the US. This issue arises because often what are otherwise considered "mild" offenses can be considered grounds for finding a Thai fiancé or spouse inadmissible because the offense is considered a crime of moral turpitude.

An example of this would be petty theft, even something as seemingly innocuous as shoplifting committed by the Thai fiancée or spouse in the distant past could and likely will be used as a basis for excluding a Thai loved one from the United States. Also, having multiple criminal convictions, regardless of category, is deemed to be a rationale for excluding a Thai loved one from entry into the US. Prostitution is another ground of inadmissibility. A Thai prospective immigrant, who is involved in vice-for-profit, will be deemed inadmissible to the United States for ten years from the date of their final act of prostitution.

If a Thai fiancée or spouse previously overstayed a visa in the United States, then it could be a basis for considering the Thai to be currently inadmissible. For those Thai fiancées and spouses with an overstay issue, a good rule of thumb is: if the overstay was more than 180 days, but less than 1 year, then the Thai fiancée or wife shall be inadmissible for 3 years. If the Thai fiancée or spouse overstayed in the US for more than a year, then the Thai shall be inadmissible for 10 years.

THE NECESSITY OF A WAIVER FOR AN INADMISSIBLE THAI FIANCEE OR SPOUSE

Should a Thai fiancée or spouse be found inadmissible, all is not necessarily lost. A Thai fiancée or spouse could be entitled to obtain a waiver of the grounds of inadmissibility. An I-601 waiver form should be filed to obtain a waiver for a Thai loved one. However this form can only be filed after a consular official has concluded that a ground of inadmissibility exists as per the Immigration and Nationality Act. For a Thai fiancée or spouse, whose application was denied in Thailand, the I-601 petition must be filed with the USCIS Bangkok District Office.

WAIVERS FOR THAI FIANCEES AND SPOUSES: PROVING "EXTREME HARDSHIP"

For the most part, the applicable law regarding the waiver of grounds of inadmissibility requires a finding that: the consistent refusal to allow the Thai fiancée or spouse to enter the United States will cause "extreme hardship" to the U.S. Citizen fiancé or spouse. The term "Extreme hardship" is never defined in the statute. Consequently, we can assume that the difficulty must rise above normal hardship to a degree of adversity in keeping with the use of the word "extreme." This "extreme hardship" must also fall upon the US citizen fiancé or spouse, not the Thai fiancée or spouse, in order to statutorily entitle the Thai fiancée or spouse to a waiver.

Thanks for Reading, Benjamin W. Hart, Esq.

The above article should not be taken as a replacement for competent legal advice from a duly licensed attorney in your jurisdiction. No Attorney/Client Relationship (either express or implied) shall be inferred from this publication.