Monthly Archive for August, 2011

Unlawful Presence Part 4 – What is the procedure for getting a Hardship Waiver for unlawful presence

Published in I-601 Waivers and Marriage Green Cards, August 15, 2011

The first step in the Immigrant Visa process is to file a marriage petition in the US, (I-130), along with supporting evidence.

Once the marriage is reviewed by USCIS and the I-130 is approved, the case is forwarded to the National Visa Center (NVC). The NVC will then request more documents to evaluate if the foreign national is eligible and forward the case to the US embassy in the applicant’s native country.

The embassy will schedule a marriage interview to evaluate whether the marriage is legitimate. The embassy will also identify different bars to immigration (grounds of inadmissibility). There are several bars to immigration, but by far the most common is the unlawful presence bar.

If a foreign national is subject to unlawful presence, the embassy will ask them to file an I-601 hardship waiver. This application must be thoroughly prepared and contain supporting evidence to prove that the United States citizen spouse would face extreme hardship if the foreign national was forced to return to their home country.

The I-601 waiver is not processed by the embassy, but forwarded to the nearest immigration office in the native country of the applicant. The decision can take several months or longer, during which time the applicant will have to wait in his or her country.

Once the waiver is granted, the person can return to the United States as a permanent resident.

However, if the waiver is denied, the person has the right to appeal. If the appeal is denied, they will have to wait outside the United States for either 3 or 10 years, even if they are married to a US citizen or have children in the United States.

It is very important to be well prepared and have an experienced immigration attorney represent you in this process. For more information or for help with your particular case, please contact our offices in San Francisco, Santa Clara and Sacramento, California at 415-986-6186.

Unlawful Presence Part 3 – The I-601 Waiver

Published in I-601 Waivers and Marriage Green Cards, August 15, 2011

To obtain a waiver of unlawful presence to be able to re-enter the United States, you have to show extreme and unusual hardship to your spouse who is a US citizen or lawful permanent resident or son or daughter of a United States Citizen or Permanent Resident.  Please note unlawful presence prior to April 1, 1997 may not be considered for inadmissibility.  (this blog post assumes that  the foreign national requires a waiver because they accrued unlawful presence by entering without inspection or departed the United States after the expiration of the period of stay authorized by the Attorney General – for more than 180 days).

What exactly falls into the category of extreme hardship?

Here are some of the most common factors that are looked at:

Medical hardship: For example, the US citizen has a serious disease such as cancer and needs his or her spouse to help with medical treatment or financial support.

Psychological hardship: Everybody will experience some level of psychological or emotional hardship if separated from his or her spouse, but that is not enough to qualify for a hardship waiver. For example, if the US citizen spouse is unusually vulnerable because of traumatizing experiences in the past; this could demonstrate that this psychological hardship is more than the usual pain of separation from a spouse.

Community ties: Would the US citizen be able to live in the native country of the spouse? Do they speak the local language? Would they be able to integrate in the local community? Or would they have to face extreme hardship by moving to the country of the spouse?

For more information or for help with your particular case, please contact our offices in San Francisco, Santa Clara and Sacramento, California at 415-986-6186.

Unlawful Presence Part 2 – Waivers

Published in Marriage Green Cards, August 1, 2011

In my last post I discussed how an unlawful presence is incurred and how it can bar you from immigrating to the United States or even from getting a temporary visa. In this article, I would like to discuss how to get a waiver.

Before doing that, let’s have a look at some special scenarios.

Unlawful presence is only triggered when someone leaves the United States. If you have entered the country legally, let’s say on a tourist visa for example, your visa has expired and you’ve married a US citizen, you would be able to process your case within the United States and thus not have a problem with unlawful presence (please note that if you entered on the Visa Waiver Program and overstayed you should consult an immigration attorney before adjusting status to determine whether or not you are able to adjust your status).

Unlawful presence comes into the picture when you’ve entered the country illegally in the first place and have no way of adjusting your status or of processing your case within the country. The moment you leave the United States to get a visa from a US embassy in another country, you trigger the unlawful presence bar.

So, what do you do, when you are in this situation?

Waiver for unlawful presence.

The I-601 waiver – The most common cases are Green Card cases, where somebody wants to come back to the United States to be with their spouse.
To get a waiver of unlawful presence, you have to show extreme and unusual hardship to your US citizen or permanent resident spouse (if your application is based on marriage to a US citizen).

For more information or for help with your particular case, please contact our offices in San Francisco, Santa Clara and Sacramento, California at 415-986-6186.