Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview. On August 29, 2016, the provisional unlawful presence waiver process was expanded to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States.
Why do I need a Waiver?
Under current law, many immigrants who enter the country illegally or overstay their visas cannot apply for permanent residence (a green card) in the U.S., and instead must finish the immigration process abroad. Unfortunately, just leaving the country can automatically makes the intending immigrant subject to a penalty for their “unlawful presence”, potentially separating them from their family for up to ten years.
For some, but not all, the penalty can be waived. Before this new rule, immigrants would be separated from their family and stranded outside the country for months or even years while waiting for a decision on whether they could immigrate back to the U.S. Consequently, the immigrant was stuck abroad, usually with no legal way to return. Many families endured emotional and financial hardship, as well as living under dangerous and impoverished conditions. Others simply were unwilling to take the risk.
The new rule means that many immigrants will leave the United States, knowing in advance that their case will probably be approved, and they could be back with their families in a matter of days or weeks. This new process was developed to shorten the time that U.S. citizens and lawful permanent resident family members are separated from their relatives while those relatives are obtaining immigrant visas to become lawful permanent residents of the United States.
In order to apply for a waiver, you must be able to prove that it would be an “extreme hardship” to your U.S. family members if you were not allowed to return or remain in the United States.
Whose hardship matters?
Depending on what immigration benefit you are seeking, there are different rules about whose hardship is considered. Depending on the situation, the government might consider hardship to the immigrant, a spouse, a parent, and/or a child.
For the Provisional Waiver, only applicants who are an immediate relative of a US citizen (spouses, parents, and certain children) can apply at this time. Additionally, the Applicant must have a qualifying relative (parents or spouses) who is a U.S. citizen. U.S. citizen children are not qualifying relatives, and thus an immigrant will not be eligible to file Provisional Waiver if their only U.S. citizen family is their children.
For the provisional waiver, the applicant must be physically present in the United States and not already have a scheduled interview at a U.S. consulate abroad. Also, the provisional waiver is only available if the sole issue holding up a case is unlawful presence. Applicants who have criminal issues or other immigration violations cannot use the provisional process.
What evidence is presented?
It is very important to present strong evidence in support of a hardship case. Our firm will work with the immigrant, family members, and friends to write detailed letters explaining the circumstances of the case. These letters must be carefully prepared to meet the legal requirements. We will also help with you to obtain records that support your case, including medical, financial, employment and education records. In cases with special health or psychological circumstances, it may be useful to have a psychologist conduct an evaluation.
People who are in immigration court or who have an order of removal or voluntary departure may not qualify unless they get special permission from the government and a court order resolving their case. The process of acquiring such permission and order may be rather complicated, and we would suggest you contact an immigration lawyer experienced in deportation defense to assist you.
To be successful, applicants must show that denying the case would be an extreme hardship to their qualifying relative(s). Meeting the “extreme hardship” standard is the crucial to a successful I-601A provisional waiver. The level of hardship that must be shown is greater than the normal hardship a qualifying relative can be expected to experience if an immigrant applicant is deemed ineligible to immigrate.
What factors will be considered?
Immigration law does not define the term “hardship”. Instead, court cases have said the following factors should be considered: age; length of presence in the U.S.; family ties to the U.S. versus to the foreign country; community ties; financial impact; health issues; and, the availability of immigration benefits.
What are my chances of success?
The U.S. government is extremely strict in its adjudication of waivers. This is why it is crucial to consult with an experienced immigration attorney.
Already Outside the United States?
An I-601 waiver may allow you to return to the United States faster.