Many assume that if they entered the United States illegally, there are no immigration options available to them. There are many possibilities, but here we will focus on just one—a family-based petition with a waiver of unlawful presence. Assume someone entered the United States illegally—for example, they walked across the border between the United States and Mexico unnoticed by immigration officials. After entering the United States, they remained in the country for some time. No one has ever filed a petition or labor certification for them. Assume further that this person is married to a U.S. citizen or lawful permanent resident (green card holder). Since the person is not the beneficiary of a labor certification or petition filed on their behalf on or before April 30th, 2001, they would not be eligible for paying a $1000 fine and adjusting status here in the United States under INA Section 245(i). (If you believe you are in this circumstance, contact a lawyer immediately to see if you meet the other requirements.) If they are over 18 years of age, they will begin accruing unlawful presence as soon as they enter the United States. Once this person stays in the United States for 180 days, they will be barred from coming back legally for three years if they decide to leave the country. If they stay in the United States for a year or more, they will be barred from returning for 10 years. The problem is that they must leave the country in order to apply for a visa at the consulate, but once they leave after too much time in unlawful presence, they face either a three or 10-year bar. The good news is that there is a waiver available for some. If the person can prove extreme hardship to the U.S. citizen spouse or green card holder, then they could obtain a waiver of the three or 10-year bar to coming back. And now there is a process that allows one to apply while still in the United States using Form I-601A, Application for Provisional Unlawful Presence Waiver.
It is a common misconception that proving extreme hardship is near impossible unless the U.S. citizen is sick with a horrible disease like cancer. However, there are many ways to prove extreme hardship. And it’s important to note that hardship is considered in the aggregate, meaning multiple problems that by themselves will not constitute extreme hardship can meet that standard when considered together.
The USCIS website now provides a detailed description of what extreme hardship means under the immigration law. For a more details, including eight scenarios to better illustrate the standard, see “Extreme Hardship Considerations and Factors” at USCIS.gov. At this link, the government provides several scenarios to give you a better idea of the kinds of cases that would be successful.
Here’s an example from the USCIS website of a scenario that is not likely to meet the extreme hardship standard:
- The U.S. citizen petitioner “submits a credible, sworn statement” stating that she will relocate to her husband’s country if the waiver is denied.
- The couple has been married just two years.
- “A similar job in the country of relocation would pay far less than [the U.S. citizen petitioner] earns in the United States.”
- “In addition, although [the U.S. citizen] has visited the country of relocation several times, [she] is not fluent in the country’s language and lacks the ties that would facilitate employment opportunities and social and cultural integration.”
- The foreign national was “gainfully employed” before coming to the United States, but his pay there would be a lot less than what he can make in the United States as a “skilled laborer.”
- The couple does not own a house or other real estate in the United States.
- The couple does not have children.
- The couple has no other family “in the United States or in the country of relocation.”
In this scenario, an approval is unlikely according to the USCIS website. Even so, if you have similar circumstances, it might be worth discussing the risks and benefits of filing a waiver application with a good lawyer. There may be, for example, factors in your case that you have not identified.
But consider the following scenario also presented on the USCIS website, assuming the same facts as listed above except as follows:
- Where the U.S. citizen spouse was very healthy in the scenario above, she has a “chronic medical condition requiring regular visits to the doctor” in this scenario.
- Additionally, the foreign national is an “unskilled worker who would command a much lower salary in the country of relocation.”
- Also, the U.S. citizen has “family that lives nearby that is a crucial part of [the] support system.”
- The couple is also active in the community, and they “have friends who help out when…family is not available.”
- Thanks to the U.S. citizen’s doctor and help from friends and family in this country, the chronic condition is manageable.
- The U.S. citizen spouse’s doctor indicates that “moving to another country and disrupting [her] care and support network will cause [her] significant difficulties.” The doctor further states that help from family and friends is key to her being able to continue working.
According to USCIS, the government is likely to find that, when all the factors are considered together, extreme hardship exists.
If you believe that you may be eligible for a waiver of unlawful presence, call a qualified lawyer. It is not a good idea to attempt one of these cases by yourself, even if you feel you have a very strong case. Applying when you are not eligible can actually do more harm than good. For example, if you entered the United States, overstayed by a year, left, and then returned to the United States illegally again, you may be subject to the “semi-permanent” bar. With this semi-permanent bar, you would not even be eligible to file for a waiver until you have waited outside the United States for 10 years! See INA Section 212(a)(9)(C). And even if you do qualify, it is important to weigh the risks of benefits of submitting a filing to the government as there is never a guarantee of success. A good lawyer can make sure that you qualify and then help you prepare a strong waiver application to maximize your chances of success.
Note that there are many other scenarios—other than being the beneficiary of a petition filed by a U.S. citizen or permanent resident spouse—in which one can apply for a waiver of unlawful presence. For more details, see the “Eligibility Requirements” at the following link: https://www.uscis.gov…
Originally published on CGCFirm.com on October 2017