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Archive for category: I 601 Waivers

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

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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.

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Unlawful Presence Part 3 – The I-601 Waiver

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To obtain a Waivers 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 United States 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 Waivers 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 exceptional hardship?

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

Medical hardship: For example, the United States 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 United States 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 United States 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 exceptional hardship by moving to the country of the spouse?

For more information or for help with your particular case, please contact our offices in Sacramento or Stockton California, call us at (916) 613-3553 or (209) 219-2377.

Related Information on Other information on I-601 Waivers

I-601 Waivers, What happens when your spouse is an illegal immigrant? Part 2

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Step 2

Once the national visa center receives the appropriate documents and completes processing of your case, they will transfer the case the United States embassy in the country of the foreign national. At this point, an interview at that embassy will be set. There usually is quite a long waiting period involved. The interview at the embassy usually takes place one year after the marriage petition has been filed.

If the foreign national travels back to their country to appear for the interview, they will immediately be barred from entering the US for 10 years, if they have overstayed for more than one year. Consequently, the consulate will deny their visa, which is a prerequisite for becoming eligible for an I-601 waiver.

The waiver application cannot be submitted before the Immigrant visa has been denied.

That I-601 hardship waiver is based on the hardship to the United States citizen spouse.  You must prove that the US citizen spouse will face extreme hardship which depends on several factors  (please see our I-601 hardship waiver articles  at www.ranchodlaw.com for these specific factors). Simply stating that you miss your spouse greatly or will be lonely are not  good enough reasons for a hardship waiver.

This is one of the best ways for those who have entered without a visa (EWI), who are married to a US citizen, to obtain a green. They have to leave the country, go through the waiver process and re-enter the United States with an immigrant visa.  However, if a relative or employer previously filed a petition on your behalf you may be eligible for 245i.

Applying for an I-601 Hardship Waiver can be a very time consuming and confusing process.

Please contact the Ranchod Law Group with offices in San Francisco, Santa Clara, and Sacramento, serving clients nationwide. You can call us at 800-753-1399 if you have questions regarding the I-601 hardship waiver.

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I-601 Waiver, What happens when your spouse is an illegal immigrant? – Part 1

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Typically, when a US citizen marries a non-immigrant – a foreign national who is inside the United States legally, the process does not require a I-601 hardship waiver.   This process of obtaining a green card is called “adjustment of status” and is handled by the US immigration (USCIS) inside the US.

If your spouse has entered the United States illegally (entry without inspection), we have a whole different issue.

One possible scenario is that somebody entered the United States legally with a visa, but overstayed. When such a person marries a US citizen, they can usually adjust their status within the country, if they can prove, that they entered the US legally.  (There are exceptions to this rule and you should consult an experienced immigration attorney if you are out of status.  Additionally, the law has recently changed if you have entered on a visa waiver program but overstayed).

This is different for people, who enter the United States without inspection. They do not have the option to adjust their status within the United States and become legal, even if they get married to a US citizen. For them, the best option to obtain a green card is to apply for an I-601 Waiver. For this, they have to leave the country, get the waiver approved and re-enter the United States on an immigrant visa.

Following is an outline of the process you have to go through, if you are in this category and want to become a legal resident:

Step 1: File a Marriage Petition

First of all, you have to file a marriage petition. This petition is filed by completing the I-130 form and appropriate supplemental documentation.

Once the petition is filed and approved, the case will be sent to the national visa center.

We will discuss the additional steps in a subsequent blog post.  Please contact our offices in San Francisco, Santa Clara and Sacramento, California at 415-986-6186 to learn more about how to obtain a I-601 hardship waiver.

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Researching the I-601 Waiver on Ground of Extreme Hardship – a Common Sense Approach

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By Immigration Attorney Kaushik Ranchod

If you’re reading this, it’s highly probable that you’ve come to this site to research the steps and requirements to file a waiver of inadmissibility.

One of the grounds for overcoming a finding of inadmissibility determination, and, consequently, bringing you and your relative together in the US, is for you (the US citizen or the Permanent Resident aka “Qualifying Relative”) to collect evidence and describe your own “extreme hardship” as a result of being separated from your spouse (who, only by the governmental agency, is referred to as “Alien”).

What I acknowledge, as an Immigration Attorney, is the common sense involved of your feeling of “extreme hardship” by a ruling which denies the presence of your spouse, (present or future) . . . . and, further, to say that I understand that — to you — never, ever will it be “normal hardship,” no matter what the legal forms and methods of analysis indicate.

But, too, I need to point out the obvious:  the person doing the research about symptoms of “extreme hardship” is the one often actually suffering from the extreme hardship. And I’m not surprised that compiling data and writing your story often brings on or worsens feelings of desperation and depression which can often hurt or hinder your progress to achieving your goal.

That’s why it is important to find places on the internet that clearly state the immigration rules and practice steps as a logical, facts-based process and bring as much predictability in terms of time and outcome to the researcher. One such agency is the Department of Homeland Security’s Citizenship and Immigration Services Ombudsman (Recommendation Regarding the Processing of Waivers of Inadmissibility) which Congress created with the “goal of increasing transparency and uniformity in immigration process.”  Furthermore, the Ombudsman “exists to make recommendations to USCIS on how to improve services, increase efficiencies, and provide a more meaningful experience for our customers.  USCIS takes these recommendations seriously . . . reviews them [and] implements when possible.”

An example of a recent response to recommendations (October 12, 2010) as it applies to the Processing of Waivers of Inadmissibility (*see footnote for ref.) I believe review of this memorandum will make you aware of the tone and commitment to better communication between government agencies who deal with urgent personal matters such as filling a I-601 hardship waiver.

To summarize this post:  it is natural to feel overwhelmed by the complexity of the process to overcome inadmissibility, especially based on “extreme hardship” considerations.  When unearthing one’s choices by internet research, it’s not immediately clear, what exactly is the best option to pursue since the choices taken and results achieved are descriptive of applying general principles to individual facts which may not be applicable in every case.

I compare doing such legal research to researching a physical malady by consulting WebMD.  And I’m not saying that research about “symptoms” is not a good step.  Becoming familiar with language, terms, what others have to say, is part of the learning curve of any new process.  You can become knowledgeable of basics, learn to research questions and answers, and get insight into how others have handled similar life experiences.  I do recommend you take these research steps on your own before you consult a professional for analysis and advice.

Please contact the Ranchod Law Group in California, if you have any questions regarding or want to start the process of applying for an I-601 hardship waiver.  We serve clients across the U.S. and at U.S. Embassies worldwide.  To schedule a consultation contact us at 415-986-6186 or at info@ranchodlaw.com.

*see 10/12/10 memo here