DO YOU NEED A WAIVER?
The Immigration and Nationality Act (INA), forms the foundation of immigration law, list several reasons why the government cannot allow a person to either enter the United States with a visa, be given a Visa to return to the United States, or be granted a visa in the United States even when married to a United States Citizen or have U.S. Citizen children. When a person cannot stay or enter the United States it is because the government has deemed them to be inadmissible.
Some of the reasons a person might be deemed inadmissible include:
- Entering the U.S. without being inspected by an authorized immigration officer and staying for more than 6 months
- Having been removed from the U.S. by immigration at least on one prior occasion.
- A certain criminal convictions or acts .
- If you entered the U.S. on a visa staying longer that was allowed by your visa (at least 6 months).
- Lying to an immigration officer.
- For Smuggling people into the U.S, or help or encouraged someone to enter illegally.
- Being a Totalitarian, Communist, or Nazi.
- If you are likely to become a “public charge” meaning that you will need welfare benefits.
- If you have been a prostitute or used a prostitute (in the last 10 years).
- Use illegal drugs
- If you have ever tortured, killed, or persecuted persons for an unlawful reason.
- You’re a terrorist
- Falsely claiming to be a U.S. Citizen
- And More.
WHY A WAIVER?
Also found in the INA are certain sections that allow the government to "waive" a persons ground of inadmissibility. This mean the government can forgive the reason the person cannot enter the U.S. . A waiver is not available for everyone or for every ground of inadmissibility, but the waiver covers several.
Only certain people can file waivers on behalf of their alien relative. But sometimes the alien can file the waiver on his/her own. A waiver can be filed by what the government calls a "qualified relative" . A qualified relative generally mean the spouse or parent of the alien requesting the waiver. The spouse or parent must be either a U.S. Citizen or a Lawful Permanent Resident (LPR or Green card holder). For example, a qualifying relative can request a waiver on behalf of their spouse, child (be mindful in immigration speak this generally refers to a child under 21, but in this context it simply means your offspring). Sadly, a child cannot request a waiver for a parent.
Other persons who can file waivers include: a fiancée, a person who has been a victim of domestic violence at the hands of their U.S. Citizen or LPR spouse, and other aliens who are asking for Temporary Protected Status (TPS) or a non-immigrant (i.e., temporary ) visa.
WHAT IS A WAIVER?
The waiver is where you, as the qualifying relative, can show the government that you will suffer a "extreme hardship" if your love one cannot enter/reenter the United States. Extreme hardship is not defined in the INA, nor is it a hard and fast rule. It is a dynamic, ever moving, case-by-case, person-by-person standard that Immigration uses in assessing waiver requests.
Generally speaking when Immigration assesses hardship they will use a balancing test to determine whether or not your love one can return to the United States. The balancing test means that the government will compare the hardship that you, the qualifying relative will suffer versus any criminal or immigration violations your love one has committed. In addition, the government will consider positive characteristic of your love one such as: time in the U.S., service and value to the community, economic, and family ties. When the positive factors outweigh the negative factors your waiver will generally be approved.
WHAT IS EXPTREME HARDSHIP?
Extreme hardship includes various factors that affect you as the qualifying family member beyond what a typical person in your position would experience. The primary hardship factors that are considered include:
- FINANCIAL HARDSHIP – Describe your current financial situation by explaining your job and monthly income and comparing it to your monthly living expenses. For the sake of clarity, please list your monthly expenses in a bullet list, which shows the expense (i.e., "Rent") and the amount you pay each month (i.e., "$900.00"). Expenses to include:
- Living costs such as rent (or mortgage) and utilities
- Phone and/or cable bills
- Credit card bills
- Student loans
- Children’s school tuition
- Food and other necessities
- Car and/or homeowners insurance costs
- Car payments
- Money to spouse and/or spouse’s family
- Child support and/or alimony
- Any other regular, monthly expenses
Financial hardship encompasses so many of the other hardship factors that this usually turns out to be the largest section of the hardship letter. Under financial hardship, you may include hardship you will experience whether you move to be with your spouse or remain in the United States without your spouse, such as lost educational opportunities for you or your children, added expenses due to living in the United States without your spouse, lost employment opportunities, etc.
- HEALTH/MEDICAL HARDSHIP – Describe any current or recent health or medical issues in your family. First list any and all of your health issues and how these may impact you whether you remain in the United States without your spouse or relocate to be with your spouse. Then, you may include the past or on-going health issues of your children as well as your parents and siblings, but only if you provide some form of support to these individuals or are impacted by their illness.
- FAMILY TIES IN THE UNITED STATES AND ABROAD – List the family members that reside in the United States and whether they are citizens or legal permanent residents. Describe the relationship you have with these family members and explain how your relationship would be impacted if you moved out of the country. If you have family outside of the United States, explain where these relatives live and your relationship with them.
- COUNTRY CONDITIONS – Compare the living conditions between the United States and your spouse’s home country. Explain how your home in the United States is different than and possibly more comfortable than your spouse’s home abroad.
- EMOTIONAL HARDSHIP – This is a catch-all category that can include any emotional strain you experience in being separated from your spouse and the general hardships of living in a foreign country. Here, you may include fear of violence, obstacles arising from cultural, language, religious, and/or ethnic differences, lack of access to social institutions or structures, etc.
For extreme hardship you must demonstrate that you will experience hardship in two or more of the areas listed above and that your love one is a good, moral person. Obviously, with every additional example of hardship you include, your overall hardship increases in the eyes of the consulate officer, so it is better to include every possible hardship you experience or will experience. Also, please keep in mind you are trying to convince a stranger that you are really suffering, so it is best to give as many concrete examples of your hardship as you can.
With every hardship, you must produce evidence of the hardship’s existence and you must explain how the hardship affects you directly or indirectly. For example, under health/medical hardship, if you have a child with a medical condition, the child’s illness does not affect you directly because you do not have the illness. However, because you may be the only caregiver for this child, the emotional and financial effects of caring for a sick child are your hardship.
HOW DO I MAKE A WAIVER?
The waiver is an immigration form most typically Form I-601. However, it is extremely important that you understand filing the form alone will almost certainly guarantee your waiver request will be denied. It is very important that your Form I-601 be accompanied by the appropriate evidence of the above illustrated hardships. In addition, it is extremely important that your evidence be supplied in such a manner as to make it easily browsed by the immigration officer.
I cannot emphasize enough the importance of presenting your case to the immigration officer. In order to do this you need to look at your application from the perspective of the immigration officer. Your officer is going to review a great number of applications in a given day. He/she does not have a lot of time to spend with your applications. So, organization, presentation, ease of understanding your hardship is important because it will allow your officer to glean more substantive information from your waiver than would be possible if it is disorganized.
Your waiver should become a package of information which shows your personal plight. At a minimum it should include:
- The Form I-601 with the appropriate filing fee.
- A legal brief which provides an overview of the law and why your hardship qualifies as "extreme"
- A personal letter from YOU the "qualifying relative". THIS MAY BE THE MOST IMPORTANT LETTER YOU'VE EVER WRITTEN IN YOUR LIFE. Why? Because this is your one and only opportunity to tell your immigration officer why you so badly you’re your love one back in the United States with YOU. This letter should go into great detail to capture your personal and unique hardship as describe via the points above. Personally, I like letters that are at least 15 pages in length and easily read.
- Evidence of each and every hardship you are experiencing. This evidence should be under a table of contents and either paginated or tabbed for easy access. Your evidence should also be referenced in you legal brief and easily accessible.
- Picture of you, you love one, and family. This can visually illustrate who you are and put a face on your application.
By following these steps, you will greatly increase your odds of getting a positive decision on your waiver. Anything less, frankly, tells your immigration officer that your love one is not all that important to you either!!!
HOW DO I APPLY?
First, you follow the instructions provided at www.USCIS.gov. Always read the instructions to know: 1) where to file, 2) how much your filing fee is, 3) who to write your money order, and 4) what ground(s) of inadmissibility you need to cover in your waiver (PLEASE NOTE: you can cover multiple grounds of inadmissibility in one Form I-601).
As of March, 2013 the procedure for filing waivers for unlawful presence has changed for spouses of U.S. Citizens only. According to the new procedure, the spouse of a U.S. Citizen is eligible to file for their unlawful presence waivers before they leave the United States. The purpose of this change is to eliminate further undo hardship on the U.S. Citizen spouse. (PLEASE NOTE: this is called the provisional waiver I-601A and it only covers unlawful presence). All other grounds of inadmissibility will have to be waived outside of the United States.
As of November 20, 2014 to allow Lawful Permanent Residents to file provisional waivers for their spouse and children. In addition, U.S. Citizens can now file for sons and daughters over 21 years old.
- Legal Brief
- Hardship letter
- Compile evidence
- Organizing the waiver package