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601A Provisional Hardship Waiver Approval for Filipino Client in California

by JP Sarmiento on March 12, 2017

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CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Filipino

LOCATION: California

Our client came to the United States from the Philippines in 2002 on a D-1 visa (Crewman). He remained in the United States after his entry in 2002. He married his U.S. citizen wife in 2009. His U.S. Citizen wife filed an I-130 petition for him in November 2009. This I-130 petition was approved on April 13, 2010.

However, our client cannot file for adjustment of status application due to his ground of inadmissibility (crewman entry and overstay). He needs a waiver of inadmissibility to become a green card holder.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States

In 2013, the USCIS announced of new policy called the provisional unlawful presence waiver. Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

INA § 212(i) provides for a discretionary waiver of the entry without inspection inadmissibility ground. To qualify for the waiver, the alien must establish that his or her US Citizen spouse would suffer extreme hardship if the alien were denied admission. INA § 212(i)(1). In addition to the equities presented, the USCIS may consider the nature of the inadmissibility ground.

There is a seminal BIA case that deals with this waiver.  In Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999), the BIA identified the factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the alien were denied admission.  Those factors include: the presence of LPR or USC family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.

In 2013, our client filed his first I-601A application to USCIS. However, USCIS denied it because his case does not demonstrate that his U.S. citizen wife will not suffer “extreme hardship.” He contacted our office in June 2016 and retained our office on July 6, 2016 for the re-file of I-601A application.

Our client’s I-601A application had a good chance since our client’s U.S. Citizen wife suffers from a great degree of hardship. We argued that if he was removed from the United States, extreme hardship to his wife is clearly foreseeable and evident. She would not be able to take care of her own needs and the bulk of their family chores, most importantly taking care of their child. Also, it would be extremely difficult for her to get the same level of economic stability in the Philippines in case she joins our client there.

In our brief, we also argued that our client and his wife have maintained strong family ties in the United States, that his wife will have difficulty in finding the same level of employment in the Philippines, and that his U.S. citizen children and his wife will face extreme emotional difficulties if he is removed.

On October 13, 2016, we filed the I-601A waiver application which included the brief in support, and documents that demonstrated hardship to his wife if he is removed from the United States. Eventually, his I-601A waiver was approved on February 21, 2017. Now, he can file packet 3 and 4 here in the United States, and would go to the Philippines shortly to get his immigrant visa.

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