CASE: I-601A Hardship Waiver of Inadmissibility
APPLICANT / BENEFICIARY: Mexican
Our client came to the United States from Mexico in December 2003 without inspection and admission. She married her U.S. citizen husband in 2007. With our firm’s legal assistance, her U.S. Citizen husband filed an I-130 petition for her on January 13, 2014. This I-130 petition was approved on August 12, 2014.
However, our client cannot file for adjustment of status application due to her ground of inadmissibility (entry without inspection and admission). She cannot also apply for an immigrant visa at once and get it – she has a bar. She 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.
Our client’s I-601A application wasn’t easy, as the US Citizen husband did not have major medical issues. He had a history of depression though, plus their (the son is not a qualifying relative for the waiver, but we argued it’s a big factor for the husband’s hardship) suffers from a great degree of medical hardship. In the I-601A brief and supporting documents, our office included affidavits and medical records. We argued that if she was removed from the United States, extreme hardship to her husband is clearly foreseeable and evident.
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 Mexico, and that her U.S. citizen child and her husband will face extreme emotional difficulties if she is removed.
On May 18, 2015, we filed the I-601A waiver application which included the brief in support, her husband’s extensive medical examination records, and other documents that demonstrated hardship to her husband if she is removed from the United States.
However, on August 17, 2015, the USCIS issued Request for Evidence (RFE) for our client’s case. USCIS explicitly requested our client to submit more evidence to prove extreme hardship to her U.S. citizen husband if she is forced to relocate in Mexico. In response to this RFE, our office prepared a response brief along with more. Our office filed the response to RFE on September 16, 2015.
Eventually, her I-601A waiver was approved on September 25, 2015. Now, she can file packet 3 and 4 here in the United States, and would go to Mexico shortly to get her immigrant visa.