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Waivers Exist for Unlawful Presence in the United States, but also for Certain Crimes, Misrepresentation, a Previous Deportation

Are you married to a U.S. Citizen or U.S. Permanent Resident and think you are not eligible to become a Lawful Permanent Resident because you have entered the USA without a visa, or pled guilty to a crime, or been accused of fraud in an application or been deported in the past? It is very possible that you are eligible for a waiver.

HERE IS AN EXAMPLE: Maria is a US citizen and she is married to Carlos. He is from Mexico and entered the United States without a visa but has also committed a crime that perhaps makes him inadmissible. Carlos wants to obtain his residency through his marriage with Maria and he wants to know what their options are.

Carlos and Maria have two options.

The first is to submit the visa petition with immigration then wait. Unless he has a previous petition that qualfies him for adjustment of status in the US under section 245(i), Carlos can not adjust his immigration status to that of a lawful permanent resident without leaving the country. He is not allowed to legally.

His second option depends upon whether his only problem is entering once without permission.  If that is the only reason he cannot get a green card, and if the crime he committed does not fall into a category of crimes that make him inadmissible, and if his spouse or parent is a US citizen, he can apply for a Provisional Waiver I-601A and only when approved must he must leave the country for his visa interview.  See our page regarding Provisional Waivers if you fall into this category.

If there are other inadmissibility issues or if his spouse or parent is a Permanent Resident rather than a US citizen, his second option is to leave the country and appear for his permanent residency interview at the US Consulate in his home country before submitting the waiver. When Carlos leaves the United States he will be subject to the 10 year bar because he has been living here without proper documentation. However, since he is married to Maria he is eligible to ask for a waiver. Waivers can also be granted for certain criminal issues, a previous deportation, or a misrepresentation. He will need to prove that Maria will suffer "extreme hardship" if he is not granted a waiver. Maria will need to complete the visa petition and designate the Consulate in Ciudad Juarez for permanent residency interview.

After the Petition has been filed, Carlos will be scheduled for a visa interview in Juarez. It takes up to a year after filing the Petition to obtaining an interview. He will at that time make plans to depart the U.S. to go to that interview. He will not have to depart the US until he knows when his interview is scheduled. Carlos will need to first go to his immigrant visa interview at the Consulate bringing along with all forms and documents for his application for lawful permanent resident.

At the visa interview, the officer will inform him he is eligible to complete a waiver application. Carlos will then submit his waiver request to USCIS at the Nebraska Service Center Waiver Division.

As of June 2013, the waivers are sent to the Nebraska Service Center and adjudicated there. Then he must wait in Mexico until Immigration Services gives him a decision.  In 2014 it is currently taking 5-6 months to receive a decision on the waiver application. After receiving notification that his waiver petition has been approved Carlos may schedule another appointment at the US Consulate in Ciudad Juarez, and receive his visa and immigrant packet. He may then immediately return to the United States as a Lawful Permanent Resident. On the other hand, if his waiver is denied, he must wait outside the U.S. for 10 years or until another waiver is filed and approved.

Who can apply for this?

The spouse and sons and daughters (married or single) of a US Citizen can submit a waiver petition. If the petition is for a spouse or child who is less than 21 years of age, there is an immediate immigrant visa available.

Only the spouse and unmarried sons or daughters (regardless of age) of a person who is a lawful permanent resident can submit a waiver petition. Their parents, siblings, married sons or daughters, or other family members CANNOT submit a waiver petition.

More information about the process:

The waiver applicant will need to demonstrate that his or her United States Citizen or Permanent Resident spouse or parent would suffer "extreme hardship" should the applicant not return to the US. See below for the general factors of hardship. All required security checks would be made and reviewed before approving the waiver and issuance of the immigrant visa.  You must demonstrate that refusal of your admission to the US would result in "extreme hardship" to your qualifying relative. The burden of proving extreme hardship rests with the applicant and is shown by submission of document evidence to USCIS to prove everything you are asserting.
What is "extreme hardship" is a difficult concept and there are no regulations guiding us, but guidance has been given in case law. In various decisions the courts have set out some of the factors that USCIS should consider in determining whether an applicant has established extreme hardship sufficient to qualify for a waiver:

EXTREME HARDSHIP can be demonstrated in many aspects of your spouse or parent's life such as:

PERSONAL CONSIDERATIONS- Close relatives in the United States and / or your country; impact of separation from spouse / children; ages of involved parties; length of residence and community ties in the United States.

FAMILY TIES inside the United States, community ties

CONDITIONS IN HOME COUNTRY to which the qualifying relative would relocate and the extent of the qualifying relative's ties to home country,


HEALTH - Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country; anticipated duration of the treatment; whether a condition is chronic or acute, or long-or-short-term.

FINANCIAL CONSIDERATIONS- Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents)

EDUCATION - Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.
 

SPECIAL FACTORS Any other situation that you feel can help meet the specifications of the severe problems or extreme hardship. Please explain in detail what would be, if very particular, a severe problem or extreme hardship. Keep in mind that severe problems or extreme hardship shall be for the family member who qualifies as such, not for you.

It is very important that you provide documentary evidence your United States Citizen/Legal Permanent Resident spouse or parent will suffer "extreme hardship", in both scenarios: Should you not return to the United States; and Should s/he relocate to be with you in your country of residence. Failure to meet the burden may result in the denial of your waiver and the possible inability to be admitted into the US for a specific period of time or on a permanent basis.  The information you provide must be very detailed as to how you meet the "extreme hardship" burden. Keep in mind that the hardship must be to your qualifying family member - not to you.

A waiver packet is so important to you and your family and to maximize your chance for success it must be prepared meticulously and carefully, and include evidence of everything about your family and your life that is beneficial to your case. We suggest that you seriously consider hiring this office for this very important matter.

Please contact our office for an evaluation of your case as to whether this strategy is appropriate for you.

Our service includes:

  1. A full review of your personal circumstances;
  2. Confirmation that the waiver is appropriate for you; some are not eligible and this is very important to know;
  3. Accurate preparation of your petition and visa application;
  4. Submittal of your visa application, fees, Affidavits of Support, to the appropriate government agencies;
  5. Meetings with you to provide instructions to you and your family members for collecting the information and documents needed to support your case;
  6. Preparation and collection of all required documentation for exhibits;
  7. Extensive attorney brief outlining your case and applying the law to your facts;
  8. Advice on how to handle yourself at your Consular or USCIS interview, and what to expect.

We welcome you to contact our office by email or call (562)494-1010.  Extremely low cost consultations ($50.00) are available and we will be happy to discuss your situation in person or by telephone and evaluate whether this process is appropriate for you. We represent clients throughout the United States, and worldwide.

This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

The Law Office of Janis Peterson-Lord is located in Long Beach, CA and serves clients in and around Long Beach, Hawaiian Gardens, Artesia, Harbor City, Wilmington, Cerritos, Bellflower, San Pedro, Carson, Paramount, Compton, Norwalk, Woodland Hills, Torrance, Lynwood, Santa Fe Springs, South Gate, Gardena, Bell, Huntington Park, Pico Rivera, Maywood, Los Angeles, Los Angeles County, Orange County.

 

Immigration Lawyer Long Beach

1383 Redondo Avenue Suite Two.
Long Beach, CA 90804
(562) 494-1010