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I-601A Provisional Unlawful Presence Waiver: 5 Common Grounds to Show Extreme Hardship

March 04, 2016
Minsky, McCormick & Hallagan

Minsky McCormick & Hallagan, P.C. MMHPC Chicago Immigration LawyersObtaining permanent residency is not as easy as just marrying a U.S. citizen or having U.S. citizen parents. Many such individuals still are not eligible to apply for residency inside the U.S.  For example, many individuals who unlawfully entered the United States, or overstayed their lawful admission by six months or longer, must travel abroad to apply for an immigrant visa (i.e permanent residency or “green card”). Leaving the country to apply for an immigrant visa runs significant risk, as such individuals can be subject to a bar of up to 10 years (because of having been “unlawfully present” in the US).

By applying for an I-601A waiver, however, qualified individuals can eliminate the risk of being subject to the 10-year bar for their unlawful presence. Individuals whose spouses or parents are U.S. citizens and who have been unlawfully present in this country can apply for a waiver to excuse that unlawful presence while they are still in the United States. The benefits of applying for a waiver while remaining in the U.S. is that the wait time abroad is much shorter and the individual can travel abroad with greater (but not total) assurances that he or she will be able to reenter the U.S. as a permanent resident.

In order to qualify for a waiver under I-601A, the U.S. citizen relative must be able to show that denial of the waiver would result in “extreme hardship” to that relative.   The U.S. Citizenship and Immigration Services (“USCIS”) does not consider hardship to the foreign national. In order to convince USCIS to grant the waiver, the U.S. citizen relative must show why he or she will face particular challenges in the event of a separation. Basically, the U.S. citizen relative must show that he or she would face extreme hardship (i.e. hardship that is greater than the normal hardship suffered by families in this situation) in either of two scenarios in the event the waiver is denied:  a) relocation of the U.S. citizen to be with the foreign national abroad for the 10 years of the bar; or b) separation from the foreign national for 10 years while he/she satisfies the 10-year bar in his or her home country, with the US citizen remaining in the U.S

In order to show extreme hardship, consider whether any of these scenarios are relevant to your situation:

  1. Medical issues: If the U.S. citizen relative has any major health issues, it could be an extreme hardship to relocate (and cut off the medical treatment currently underway) or to separate (and lose the care and support provided by the foreign national).
  2. Family obligations: If the U.S. citizen relative cares for a dependent loved one, it could be an extreme hardship to relocate (and abandon the loved one) or to separate (and lose the support of the foreign national).
  3. Danger in home country: If the foreign national originates from an area facing war or political upheaval, it could be an extreme hardship to relocate (and live under dangerous conditions) or to separate (and suffer the stress of knowing that U.S. citizen’s loved one is in danger).
  4. Custody issues: If the U.S. citizen relative has minor children from a prior relationship, it could be an extreme hardship to relocate (and leave children behind) or to separate (and suffer the stress of raising children without a foreign national partner).
  5. Finances: If the U.S. citizen relative relies on the foreign national’s income, it could be an extreme hardship to relocate (and potentially be unable to find new employment in the new country) or to separate (and lose the foreign national’s financial support).

(See more on I-601A waivers here, including who may or may not qualify for a waiver).

There are many other grounds to show extreme hardship, and our attorneys can work with you and your U.S. citizen relative to show the particular challenges that would accompany a denial of your I-601A waiver. Whether a U.S. citizen relative petitioner would face extreme hardship is a fact-based inquiry highly dependent on an individual’s situation. Please contact an immigration attorney at Minsky, McCormick & Hallagan, P.C. to assist you in applying for an I-601A provisional waiver.

 

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