One of the most prevalent I-601 waivers of excludability sought for Thai fiances and wives is the waiver of a finding of inadmissibility based upon the consular officer's presumption that the beneficiary has engaged in the practice of prostitution (or directly benefited from the fruits of prostitution) within the previous 10 years.
Many people become confused at the idea of a waiver because they believe that a waiver is an "appeal." In point of fact, a waiver is not an appeal. American Consular Officer's decisions are not appealable when they are making factual determinations. Therefore, if, based upon the facts, a consular officer comes to the conclusion that a Thai beneficiary seeking a US visa has engaged in the practice of prostitution within the previous 10 years, then that decision cannot be appealed.
A waiver is often mistaken for being an appeal because the waiver application is filed after the consular officer has made his or her decision. In the case of a waiver, the underlying finding of a ground of inadmissibility (presumption of engaging in prostitution) is not disputed. Instead, the person seeking a waiver is conceding the finding of inadmissibility and seeking to have the inadmissibility waived because a failure to grant the waiver would result in an "extreme hardship," for the US Citizen petitioner.
Not all waivers of inadmissibility require a finding of extreme hardship. Most notably, and HIV waiver is based upon a finding that the visa seeker will have adequate private medical care and coverage in the USA that will not come from government resources. At the same time, some grounds of inadmissibility have no waiver available. Two examples of grounds of inadmissibility with no waivers are a finding that a visa seeker has fraudulently claimed US Citizenship to obtain any type of benefit in the past and also a finding that the visa beneficiary has a criminal record involving drugs (under the current law, there is a waiver if the drug conviction was for less than a certain statutorily prescribed amount of marijuana).
In order to obtain the prostitution waiver it is advisable to retain the services of a competent attorney. The requirement to obtain the waiver is that the US Citizen prove that if the waiver is denied, then the citizen must uproot himself and move to live with the Thai beneficiary. It must be shown that this situation would cause "extreme" hardship for the US Citizen. The hardship must be over and above everyday hardship and rise to a level that would put the US Citizen in a nearly unbearable situation.
Nothing in this article should be used in lieu of legal advice from a duly licensed US attorney in your jurisdiction.
Benjamin Hart is a licensed American Lawyer. He currently acts as Managing Director of Integrity Legal a law office located in both the United States and Thailand. For more information regarding US immigration from Thailand please see k1 visa or usa visa thailand
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