CASE: Immigrant Visa / I-601A Provisional Unlawful Presence Hardship Waiver of Inadmissibility
APPLICANT / BENEFICIARY: Chinese
LOCATION: Cleveland, Ohio / Guangzhou, China (Visa Interview)
Our client came to the United States from China in August 2001 without inspection and admission. She married her U.S. citizen husband in 2007. They have two U.S. citizen children together. Her U.S. Citizen husband filed an I-130 petition for her on August 1, 2012. This I-130 petition was approved on March 29, 2013.
Our client cannot file for adjustment of status application due to her ground of inadmissibility. She needs a waiver of inadmissibility to become a green card holder. Moreover, our client was placed in removal proceedings, but with our office’s assistance, her removal proceedings were administratively closed in April 2015 to file a provisional waiver application.
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.
Our client’s I-601A application had a good chance since our client’s U.S. Citizen husband and son suffer from a great degree of medical hardship. In the I-601A brief and supporting documents, our office included extensive medical reports of her husband and her son. We argued that if she was removed from the United States, extreme hardship to her husband is clearly foreseeable and evident. Her husband has ongoing medical hardships and he would not be able to take care of his own needs and the bulk of their family chores, most importantly taking care of their children. Also, it would be extremely difficult for him to get the same level of therapy and satisfactory access to medical services in China in case he joins our client there.
In our brief, we also argued that our client and her husband have maintained strong family ties in the United States, that her husband will have difficulty in finding the same level of employment in China, that our client has good employment in the United States, and that his U.S. citizen child and her husband will face extreme financial and emotional difficulties if she is removed.
On October 15, 2015, we filed the I-601A waiver application which included the brief in support, her husband and son’s extensive medical examination records, and other documents that demonstrated hardship to her husband if she is removed from the United States. Eventually, without any RFE, her I-601A waiver was approved on February 2, 2016.
Once her I-601A waiver was approved, she retained our office again for her immigrant visa processing. First, our office filed the Motion to Re-Calendar / Terminate Removal Proceedings to the Cleveland Immigration Court to do our client immigrant visa processing work. The Motion was filed on February 16, 2016. The Immigration Court granted our Motion on March 14, 2106.
Thereafter, our office prepared and filed her immigrant visa application on July 25, 2016. Later, the U.S. Embassy in Guangzhou, China informed our office that they scheduled an immigrant visa interview for our client. Our client went back to China to appear at her interview on September 8, 2016. On September 8, 2016, our client appeared at her immigrant visa interview at the Consulate, and the Consulate officer approved her immigrant visa on the same day.
Now, our client can come back to the United States with an approved immigrant visa and she will get her green card in a mail within two months of her entry to the United States.