HARDSHIP AND PROVISIONAL WAIVERS
PERMISSION TO REAPPLY FOR ADMISSION
Form I-601/601A Waiver Application
Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview. On August 29, 2016, the provisional unlawful presence waiver process was expanded to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the U.S
If you are not eligible to adjust your status in the U.S, you must travel abroad and obtain an immigrant visa. Depending on how you initially entered the country, If you have accrued more than 180 days of unlawful presence while in the United States, you may need to obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before you can return. Typically, you cannot apply for a waiver until after you have appeared for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that you are inadmissible to the U.S.
If you are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees), and only need a waiver of inadmissibility for unlawful presence, the provisional unlawful presence waiver process lets you apply for that waiver in the U.S. before you depart for your immigrant visa interview.
This new process was developed to shorten the time that U.S. citizens and lawful permanent resident family members are separated from their relatives while those relatives are obtaining immigrant visas to become lawful permanent residents (green card holders) of the U.S.
The provisional unlawful presence waiver process does not affect the continued availability of the Form I-601 process: if you do not wish to seek or do not qualify for a provisional unlawful presence waiver, you can still file Form Ii-601, Application for Waiver of Grounds of Inadmissibility, after a consular officer determines that you are inadmissible to the U.S.
Form I-212 Permission
to Apply for Readmission
If you are inadmissible under the Immigration and Nationality Act (INA) section 212(a)(9)(A) or (C), you may be granted permission to reapply for entry using Form i-212 so you can lawfully return to the United States.
In specific circumstances, permission to apply for readmission to enter the U.S. may be granted to an applicant who is subject to a permanent bar, or who was physically removed pursuant to a deportation order or left the U.S. while the removal order was still outstanding.
Extreme Hardship Determination
If you need a waiver or other relief before you are granted a green card, you may have to submit evidence that your "qualifying relative" would suffer extreme hardship if your waiver is not granted.
The immigration officer who is reviewing the waiver application must look at the totality of the circumstances before reaching a decision. It is therefore very important to submit a detailed application that outlines every common consequence the qualifying relative will suffer if he or she is separated from the waiver applicant.
Factors and consideration for extreme hardship to the qualifying relative include:
Family ties and impact
Social and cultural impact
Health conditions and care
There are other particularly significant factors, such as evidence that the qualifying relative was previously granted Iraqi or Afghan Special Immigrant Status, T Nonimmigrant Status, or Asylum or Refugee Status, that USCIS has determined to often weigh heavily in support of finding extreme hardship.
Armstrong Law Offices PLLC can work with you to ascertain who in your family is a qualifying relative, and then evaluate your unique set of facts to determine whether you or your family members are eligible to apply for a waiver, and how best to proceed.