Client Approval: I-601A Provisional Waiver Approved by Showing of Extreme Hardship

Our office received approval of the I-601A Provisional Waiver for a Guatemalan applicant married to a U.S. citizen wife.  The clients contacted my office after their previous attorney erroneously filed for an adjustment status on behalf of the couple (a process which the applicant clearly did not qualify for).

I corrected the error by filing the I-824 Application for Action on an Approved Petition.  The USCIS consequently forwarded the approved I-130 Petition for Alien Relative to the National Visa Center.  The Affidavit of Support and Immigrant Visa Application Processing Fees were soon issued by the National Visa Center.  By this time, the I-601A Provisional Waiver package was already completed by my office and ready for submission to the USCIS waiver adjudication unit.

Our I-601A Provisional Waiver application package included a complete set of USCIS forms requesting consideration of the I-601A Provisional Waiver; a 17 page waiver statement detailing relevant case law favorable to my client’s situation and presenting the extreme hardships that applied to this case; and a comprehensive collection of exhibits to prove the extreme hardships being presented.

The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in 8 CFR 212.7(e) and warrant a favorable exercise of discretion. To be eligible for the I-601A Provisional Waiver for Unlawful Presence, you must fulfill ALL of the following conditions:

1. Be 17 years of age or older.
2. Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available).  An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
3. Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
4. Have a pending immigrant visa case with the Dept. of State for the approved immediate relative petition and have paid the Dept. of State immigrant visa processing fee.
5. Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
6. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
7. Not have been scheduled for an immigrant visa interview by Dept. of State before January 3, 2013.
8. You are inadmissible ONLY for unlawful presence in the United States for more than 180 days but less than 1 year during a single stay (INA Section 212(a)(9)(B)(i)(I)), or unlawful presence in the United States for 1 year or more during a single stay (INA Section 212(a)(9)(B)(i)(II).

In this case, the applicant is a Guatemalan national who entered the United States without inspection.  He married a U.S. citizen wife, is a devoted father to three children (two of whom are from a previous relationship of the US citizen wife), and also has a mother who is a naturalized U.S. citizen residing in the United States.  The favorable factors of this case included some of the following:

• Two children of the couple have visitation with their biological father under the terms of a legal custody agreement.  If the U.S. citizen wife was forced to re-locate to Guatemala to be with her husband, her daughters would likely not be allowed to move out of the U.S.  This is a powerful form of “legal hardship” which should always be highlighted and detailed on any I-601 Waiver and I-601A Provisional Waiver Application.
• The family survives financially solely due to the income provided by the Guatemalan applicant.  It is his income that allows this family to pay for its living expenses and medical bills.
• The U.S. citizen wife has been diagnosed with Adjustment Disorder and Panic Disorder.  She was prescribed medication for her conditions in 2010.  A history of prior diagnoses and treatment is much more persuasive than a recent evaluation conducted solely for the purposes of an immigration application.
• The U.S. citizen wife’s mother suffers from severe medical conditions of her own, and relies upon her daughter to watch over her health and assist in day-to-day tasks.
• The Guatemalan applicant’s U.S. citizen mother suffers from Clinical Depression along with a number of severe medical conditions.  She relies upon her son to take care of her including taking her to the hospital and making sure she takes the right medications.
• The U.S. citizen wife is undergoing severe financial hardship including the filing of bankruptcy just several years ago.  Without her husband’s financial assistance, she would be unable to take of her three children, afford medical treatment for her illnesses, or be able to afford rent on their family home.

It should also be noted that the way extreme hardships are presented, discussed, and proven often “make or break” an I-601A Provisional Waiver Application.  Extreme hardships should be highlighted and elaborated upon in a realistic and credible manner.  Every hardship should also be shown to exist and possibly grow worse in two scenarios: if the qualifying relative is separated from the applicant and if the qualifying relative has to re-locate to another country in order to be with the applicant.  Every hardship statement made should be proven with objective evidence that is included in a List of Exhibits.

I am often asked to review waiver applications that were prepared and submitted by other attorneys and subsequently denied.  Some of these applications that I review are missing detailed waiver memorandum drafted by the attorney altogether.  Others have “cover letters” of 2-3 pages introducing the case, then an unmanageable number of exhibits that are likely to get ignored by the USCIS officer.  In almost every case I am asked to review, I see significant ways the waiver application can be improved upon to more effectively convey the extreme hardships being suffered by the qualifying relative(s).

As a result of the comprehensive package we prepared and submitted on behalf of the Applicant, this I-601A Provisional Waiver application was approved.