US Immigration Law is particularly unforgiving towards those who entered the country without inspection. Even marriage to a US citizen – which is usually sufficient to overcome most immigration violations – does not help. If you cannot produce a passport or I-94 card proving that a Customs and Border Patrol Officer stamped your entry into the country you are precluded from adjusting your status (ie., getting a Green Card) without having to first leave the US. Period. And to make matters worse, if you have been here out of legal status for more than one year, once you do depart the US you will trigger a 10-year bar against returning. Talk about catch-22. Stay and you can’t get a Green Card. Leave and you are barred from returning for up to 10 years! So what to do?
In reality the situation is not quite so dire. The reason is that the 10-year bar for unlawful presence can be overcome if a successful waiver application is made. And the latest statistics released by the Department of Homeland Security demonstrate an almost 85% approval record for waivers of INA Section 212(a)(9)(B)(i)(II) (unlawful presence in the US of 365 days or more within the past 10 years).
INA Section 212(a)(9)(B)(v) authorizes a waiver of unlawful presence to a would-be immigrant “who is the spouse or son or daughter of a United States citizen or a [Green Card holder].” The bar is set high, however, and requires the applicant to demonstrate that the “refusal of such foreign national would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.”
Three important points should be noted:
- Hardship to the alien is of no consequence. Similarly, as difficult as it might be to comprehend, hardship to a US citizen child is also irrelevant. The only hardship that matters is that of a US citizen or Green Card holder spouse or parent.
- The standard for a waiver is “extreme hardship“, which is a high one. And the courts have uniformly held that “merely living apart from one’s spouse or parent” does not rise to that level. The applicant must demonstrate hardship above and beyond that which is to be expected from the separation of family members. So without meaning to sound cavalier, when it comes to waivers, worse usually is better. There is no ironclad definition of what constitutes “extreme hardship, but factors such as the burden of special-needs children (remember, hardship to the children won’t count. Rather, the hardship to the remaining parent of caring alone for such children is what bears weight in a waiver), reliance upon the income of the alien (particularly where he/she is the sole breadwinner), aggravating medical conditions that require the alien’s presence or care, mental illness on the part of the qualifying relative (depression) are all factors that will carry weight in a waiver application.
- Parents of US citizens or Lawful Permanent Residents are not eligible for the waiver.
Preparing a persuasive waiver application takes a significant amount of time, effort, dedication and meticulous attention to detail. Affidavits, medical histories as well as a compelling legal and factual argument on the part of the attorney that puts the situation into context are all critical. The examiner will not take the time to appreciate the significance of the material you submit. Without a succinct and persuasive summary from a competent attorney that demonstrates why you meet the standard, you risk a denial.
So if unlawful presence in the US is what stands between you and your Green Card, call my office today at (914) 358-1400 or Click here to make an appointment
Attorney Karyn Schiller is a tenacious advocate and can be relied upon to prepare a comprehensive waiver package that is persuasive, detailed and puts your case in the best possible light. Call Ms. Schiller today