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Waivers, Pardons & Proving Extreme Hardship

Expansion of Provisional Unlawful Presence Waiver

On July 29 2016, the U.S. Citizenship and Immigration Services (USCIS) provided some good news for families by expanding some regulations related to the provisional unlawful presence waiver. These new rules become effective on August 29, 2016.

The original provisional waiver rule that was implemented in 2013 provided that only immediate relatives of U.S. citizens were eligible to file a provisional waivers before departing the United States for the processing of their immigrant visas. Meaning that only immigrants who had a U.S. citizen parent or spouse could apply for the provisional waiver. The expansion of regulations now allows immigrants who have a Lawful Permanent Resident (LPR) parent or spouse to apply for a provisional waiver. Also, an immigrant with an employment-based petition can apply for a provisional waiver, as long as their visa is available and the applicant has a spouse or parent who is a U.S. citizen or LPR that will suffer extreme hardship.

To qualify for a provisional waiver, applicants must still prove that their U.S. citizen or LPR spouse or parent would experience “extreme hardship” if the applicant is not allowed to return to the United States. Note that once a provisional waiver is approved, the immigrant must still depart the U.S. and obtain their immigrant visas through a consulate office abroad.

Additional changes to Provisional Unlawful Presence Waiver

The new regulations also provide other changes to the provisional waiver regulations. Some of the important changes are outlined below:

  1. USCIS will no longer use the reason-to-believe standard as a basis for denying provisional waiver applications. Under the current rules applicant’s can have their provisional waivers denied for other reasons besides unlawful presence in the U.S. Even if the applicant proves that their family member will suffer extreme hardship, USCIS has the authority to deny a provisional waiver for other reasons such as reason to believe that the applicant is ineligible due to:
    1. False claim to U.S. citizenship,
    2. Smuggling (assisting family members or other to enter the U.S. without documents),
    3. Misrepresentation (lying on an immigration form, on a visa application or to an immigration official),
    4. Having returned to the United States without inspection and admission or parole after a prior removal or prior unlawful presence
    5. Having committed or having been convicted of certain crimes.
  2. The Visa interview scheduling cut-off date will no longer apply. An immigrant was not eligible for a provisional waiver if the Department of State (DOS) had taken steps to schedule a consulate interview prior to January 3, 2013. As of August 29, 2016, this restriction will be eliminated.
  3. Applicants with final Orders of Removal, Deportation, will now qualify for the provisional waiver as long as USCIS has approved, an Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I–212).

Tips For Filing a Successful Provisional Waiver

The expanded regulations bring about many positive changes, however they can also cause unpredictability for some cases. Because the reason-to-believe standard has been eliminated, the provisional waiver can be revoked if a DOS consular officer determines that the applicant is ineligible for the immigrant visa based on other grounds. Due to this, it is imperative that an applicant know the contents of their immigration and criminal record. Our office can assist with obtaining relevant immigration and criminal records to avoid any surprises or an unfortunate outcome at the consulate interview.

Additionally, applicants should ensure that as of August 29, 2016. they fill out the new provisional waiver application form which will be posted on the USCIS website at uscis.gov/i-601a. Failure to submit the correct form will result in the provisional waiver application to be rejected.

Applicants who have an Order of removal or deportation that has not yet been executed must ensure that they act quickly to file a provisional waiver application. An applicant will be ineligible to apply for a provisional waiver if the Order of deportation has been reinstated.

Finally, in the coming weeks, USCIS expects to update its Policy Manual to provide guidance on how USCIS makes extreme hardship determinations. This guidance will be extremely beneficial for all applicants who are unsure whether their particular circumstances meet the extreme hardship criteria.

How we can help

Fulfilling the requirements for the provisional waiver is not an easy task. The applicant must ensure that they are not only knowledgeable about all of the regulations but also about their immigration and criminal record. For those with removal orders it is especially important that you have a clear understanding of your immigration case and that you are protecting all of your rights. Our experienced immigration attorneys will provide you with practical guidance to effectively assist you with your provisional waiver application. Throughout our representation we will keep you informed every step of the way. Our firm’s commitment to stay up to date with the immigration laws, statutes, and regulations ensures that we file an approvable provisional waiver application on your behalf. Our many years of experience with these types of cases will avoid you costly errors and unexpected negative outcomes.

When Do You Have to Prove Extreme Hardship?

Immigrants who have a green card petition filed on their behalf by a U.S. citizen or permanent resident immediate relative and who have entered the U.S. without a visa and have remained in the U.S. without permission for 180 days or more or for more than 1 year must depart the U.S. to finalize their application to become a permanent resident. Once the immigrant departs the U.S., they are required to remain outside of the U.S. for 3 years (if have been unlawfully present for 180 days to 1 year) or 10 years (if have been in unlawfully present for more than 1 year). These restrictions are referred to as the “3 year bar” and “10 year bar”. Fortunately, some immigrants qualify for an unlawful presence waiver to forgive these bars (also known an I-601 or I-601A waiver).

A waiver for unlawful presence will not be granted unless extreme hardship to the U.S. citizen relative is proven. Convincing evidence must be submitted with the waiver showing that (1) the U.S. citizen relative will suffer extreme hardship if the immigrant family member is required to remain outside the U.S. and (2) the U.S. citizen relative will suffer extreme hardship if he or she is forced to relocate outside of the U.S. to be with their relative.

What is Considered Extreme Hardship?

The U.S. citizenship and Immigration Services (USCIS) acknowledges that separation from a family member will result in hardship, however for a waiver to be approved, one must not only prove hardship but extreme hardship. The current immigration laws and policies do not have an exact definition of what qualifies as extreme hardship. Rather, based on the evidence submitted with the waiver, USCIS determines on a case by case basis whether the evidence of hardship is more than the normal hardship that every family suffers due to separation.

On October 7, 2015, USCIS released a “Draft Policy Manual” providing guidance clarifying what constitutes extreme hardship determinations. However, as of March 2016, this draft policy has not been finalized and implemented, and therefore should not be relied upon.

There are previous court cases that have provided some guidance regarding factors that are relevant in proving extreme hardship. One particular case, Matter of Cervantes-Gonzalez, provides a good framework and lists some essential essential factors to prove extreme hardship:

  1. The qualifying relative’s family ties outside the United States;
  3. The financial impact of departure from this country; and

Important Tips on How to Prepare Strong Hardship Arguments

The first step in preparing a waiver is for the U.S. citizen relative to write a letter or statement directed to USCIS explaining the hardship that he or she will suffer without their relative in the U.S. A good starting point when preparing this letter is to look at the factors listed above. Consider this letter as the road map you will use to compile documents to prove each factor outlined in the letter. Some examples of documents that will assist in proving extreme hardship are:

  • Income documents: earnings statements; bank statements; Income tax returns of U.S. citizen relative; proof of unemployment of U.S. citizen relative
  • Documents showing debts and expenses: bankruptcy documents; outstanding loans; outstanding court fees; outstanding medical bills; household bills; child care costs; mortgage statements; state or federal tax liabilities
  • Medical documents showing medical condition of U.S. citizen relative and/or children of the U.S. citizen relative: evidence of constant medical appointments; relevant medical records; letter from medical care or mental health provider describing the medical condition, limitations caused by the medical condition, the need for assistance and/or continued medical care and the medical care provider’s personal knowledge of the immigrant’s role in providing direct assistance to the U.S. citizen relative)
  • Employment documents of U.S. relative: employment agreement and/or letter from employer confirming limited vacation days and limited ability to provide time off to U.S. citizen employee for travel outside of the U.S.
  • Documents showing conditions in immigrant relative’s country: travel warning advisories from the Department of State, newspaper reports from reliable media sources showing recent violence in the area where immigrant relative is from, unemployment rates from reliable sources, brochures from bilingual schools showing tuition costs (if U.S. citizen and immigrant relative have U.S. citizen children that have limited knowledge of Spanish).

Extreme Hardship Requires a Case by Case Analysis

Proving extreme hardship for a waiver is not an easy task. Our office will provide you with an individualized assessment of your case to determine the extreme hardship factors in your case such as: medical, emotional, financial, unemployment, family separation, and dangerous conditions in your home country. We can also help you with tips on what evidence should be submitted to prove extreme hardship and have your waiver approved. USCIS determines extreme hardship on a case by case basis and because of this you will need to make your waiver as unique as possible. The stronger your waiver is, the quicker it will be approved. We will guide you through the entire waiver process and provide you the expertise you need to submit a strong waiver.

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