Filing a marriage-based petition is often considered to be one of the easiest and fastest ways for someone to obtain a green card. However, if an applicant entered the U.S. without inspection, in other words illegally, then it becomes necessary to file a Hardship Waiver. This turns a relatively straight forward process into a much more complicated one and usually requires the assistance of a qualified Immigration Attorney.
A Hardship Waiver is required because someone who has entered the country illegally is not allowed to adjust their status. They are required to leave the U.S. and go for Consular processing, however, someone who has remained in the U.S. for a considerable time will be subject to a 3- or 10- year bar. This means that when they leave the U.S. to go for Consular processing, they will automatically trigger a bar that prevents them from returning. Anyone unlawfully present for more than 180 days but less than one year is subject to a 3- year bar. Unlawful presence for one year or more triggers a 10- year bar.
By filing a Hardship Waiver, it is possible to overcome the bar and allow an applicant to return to the U.S. following a visa appointment in his/her home country.
In order to file for a Hardship Waiver, the Petitioner, either a U.S. Citizen (USC) or Lawful Permanent Resident (LPR) must first file an I-130. Once this is approved (usually around 12 months), the applicant must then pay the NVC fees before submitting form I-601A to USCIS requesting a waiver of the 3- or 10- year bar.
In the event that the waiver is approved then the applicant can leave the U.S. and go for Consular processing, without triggering the bar. Because the waiver is adjudicated before the applicant departs the U.S., the applicant can return home, knowing that there will be no delay in obtaining a visa. However, it is important to note that the waiver only covers one illegal entry and therefore an applicant who has multiple illegal entries cannot file I-601A. Furthermore, this waiver only waives unlawful presence and therefore an applicant could be deemed inadmissible for other reasons, such as having a criminal history. It is therefore important to consider all these factors before filing for a waiver.
In order to be approved for a Hardship Waiver, an applicant must show that his/her USC/LPR spouse or parent will suffer extreme hardship in the event that the applicant is not allowed to return to the U.S.
Example: If Angel entered the U.S. illegally from Mexico 3 years ago, he is subject to a 10- year bar. His wife Michelle would first need to file an I-130 for him with USCIS and once approved Angel would need to pay the NVC fees. At this point Angel would be eligible for Consular processing, however, to overcome the 10-year bar he would need to file I-601A and demonstrate that his wife Michelle would suffer Extreme Hardship in the event that he was not allowed back into the U.S. after going for Consular processing.
In the above example, Angel can show extreme hardship in two ways on the basis that he is not permitted to return to the U.S. and is required to wait out the 10-year bar in Mexico.
Firstly, Angel can demonstrate the extreme hardship that his wife would suffer if she stayed in the U.S. and he was in Mexico. This needs to be more than just emotional separation. For example, if Angel and Michelle owned a house together, have kids and Angel was working, providing a much-needed source of income, Michelle would undoubtedly suffer financially, especially as Angel and Michelle would need to maintain two separate households and Michelle would no longer have the benefit of Angel’s income to pay the mortgage, etc. Furthermore, if Michelle already suffers from anxiety and depression, in the event that Angel is not allowed back into the U.S., her condition is likely to deteriorate. In this case, documentation of their finances and a letter from Michelle’s doctor would be required.
Secondly, Angel can demonstrate the extreme hardship that his wife would suffer if Michelle decided to move to Mexico to wait out the 10-year bar with Angel. If she were working, she might lose her job and be unable to obtain the same/similar employment. Michelle doesn’t speak much Spanish so she would have a hard time transitioning to a life in Mexico. Most of her family live in the U.S. so she would have to leave them behind. Her parents are elderly so would not be able to visit and take care of them so she would have the additional financial cost of having to travel back to the U.S. Financially it could be a disaster, especially if neither of them could find comparable work. Emotionally it would take a toll on Michelle because neither Michelle nor her children wouldn’t have access to the same school system, medical services, health insurance etc., she wouldn’t be able to see her parents on a regular basis, etc., etc. (the list goes on). Essentially, moving her entire life to Mexico would represent an Extreme Hardship in a lot of different ways.
Conclusion
This is just a brief example and a few of the ways to help demonstrate Extreme Hardship. Ultimately, submitting a strong waiver application requires the ability to tell a story, backed up by substantial documentation. If you have questions about a Hardship Waiver, please reach out to PLG Partner Chris Prescott at cprescott@patellegal.com.