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.
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