IMMIGRATION FILING STRATEGIES AND TIPS FOR PRACTITIONERS
I-601A, APPLICATION FOR PROVISIONAL UNLAWFUL PRESENCE WAIVERS
- WHAT IS UNLAWFUL PRESENCE?
Most individuals who enter the U.S. on a visa or through the visa-waiver program are given a date specific that they must leave, often marked on Form I-94 (CBP no longer issues paper I-94 cards, but I-94 information is available online). If the individual stays past the date they were required to leave, they are out-of-status and begin to accrue unlawful presence in the United States. Once then individual accrues 180 days of unlawful presence, that person becomes inadmissible into the U.S. and is barred from reentering the U.S. for a period of three years. This bar increases to ten years after accruing one year of unlawful presence.1
Section 212(a)(9)(B)(i)(I) of the Act renders inadmissible those aliens who were unlawfully present for more than 180 days but less than one (I) year, who voluntarily departed the United States prior to the initiation of removal proceedings and who seek admission within three (3) years of the date of such departure or removal from the United States. Section 212(a)(9)(B)(i)(II) of the Act renders inadmissible those aliens unlawfully present for one (1) year or more, and who seek admission within ten (10) years of the date of the alien’s departure or removal from the United States. Finally, section 212(a)(9)(C)(i)(I) of the Act renders inadmissible any alien who has been unlawfully present in the United States for an aggregate period of more than one (1) year, and who enters or attempts to reenter the United States without being admitted. Let it be noted that the three year and ten year bars are triggered when the individual departs the United States. Here is where the problem lies.
Obtaining a visa to reenter the United States as an Immigrant for those who cannot adjust their status within the United States automatically triggers those bars. The immigrant visa cannot be obtained without leaving the country and attending an interview at a U.S consulate overseas.
There are four main categories of individuals who accrue unlawful presence and therefore become subject to the three year or ten year bars mentioned earlier.
- Individuals who crossed the border without first obtaining a visa, visa waiver or parole into the United States and then getting inspected at a point of entry. It simply means, those who entered without permission of an officer of the United States Customs and Border Protection (CBP) at a designated point of entry.
- Those whose period of authorized stay expired and they did not leave the country at the expiration of the authorized period of stay.
- Those who entered the country with fraudulent immigration documents
- Those who violated the conditions of their visa or other form of lawful admission Into the United States.
This article will not attempt to explain who has accrued unauthorized presence and who has not. Similarly it is beyond the scope of this article to go into the very complex and contested definitions of lawful status, period of authorized stay, and unlawful presence. These related, yet distinct concepts can play a very important role in one’s immigration matters. However, the differences can be subtle and complex.
To simplify things, this article will only address the issue from the point where the filing of an I-601A Application for Provisional Unlawful Presence Waiver has become necessary. It looks at the laws, policies and procedures which relate to the adjudication of such an application. The article will provide practice pointers to assist practitioners and other interested persons with the tools they need to prepare a successful application.
A very common scenario is when an individual entered the country without inspection (illegally), or parole, and have become inadmissible solely on account of unlawful presence. To be clear, entering without inspection or parole does not necessarily render an individual ineligible for other immigration benefits or relief from removal. For example, unlawfully present individuals may be granted immigration benefits such as:
- Temporary protected Status
- Withholding of removal
- Cancellation of removal
- Deferred action
- U-Visas, etc.
Fortunately, qualified individuals may be eligible for a provisional waiver and therefore still become Lawful Permanent Residents of the United States.
Three major issues arise which discourage otherwise eligible individuals from leaving the country to seek a visa abroad:
- There is no guarantee that the waiver will be granted regardless of how compelling the circumstances are. It is entirely discretionary.
- There is likely to be a long waiting period out of the country to wait for the approval of the waiver application
- The consular officer could probably find another ground of inadmissibility such as some crime, a warrant or some other ground. An independent ground of inadmissibility would apply regardless of an approved unlawful presence waiver.
- I-601 A, APPLICATION FOR PROVISIONAL UNLAWFUL PRESENCE WAIVER
Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview. The Provisional Unlawful Presence waiver application is made by filling out an immigration form form I-601 A.
Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return. Typically, these foreign nationals cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States. The basic advantage of the I-601A waiver is that, it waives the unlawful presence problem so that it is no longer an impediment to the immigrant who is otherwise admissible. It should be noted that an I-601A waiver only waives the consequences of the unlawful presence assuming that the individual is not subject to other grounds of inadmissibility. As a matter of fact, the USCIS as a matter of policy will not approve an I-601A waiver if it believes that the individual is subject to a separate ground of inadmissibility such as criminal conduct or use of fraudulent immigration documents, for example.
The eligibility requirements for a Provisional Unlawful Presence Waiver are outlined in section 212(a)(9)(B)(v) of the Immigration and Nationality Act (INA), and title 8, Code of Federal Regulations (8 CFR), part 212.7 (e).
To be eligible for unlawful presence waiver, the applicant must show that they have a qualifying relative who would experience extreme hardship because of the applicant’s ineligibility to immigrate. For the purpose of a provisional unlawful presence waiver, a qualifying relative must be the parent or spouse who is a citizen of the United States.2
The toughest requirement and the cause for the high failure of Applications for Provisional Unlawful Presence Waivers is the extreme hardship requirement.
Let us take a look at what extreme hardship really means and how it is handled by USCIS.
- EXTREME HARDSHIP
The Board of Immigration Appeals (BIA) in Matter of Cervantes-Gonzalez has held that extreme hardship is not a term of “fixed and inflexible meaning”; establishing extreme hardship is “dependent upon the facts and circumstances of each case.”3 It lists the factors it considers relevant in determining whether an applicant has established extreme hardship. The factors include:
- Presence of lawful permanent resident or U.S. citizen family ties to this country;
- Qualifying relative’s family ties outside the United States;
- Conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries;
- Financial impact of departure from this country; and
- Significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. at 565- 566
The BIA indicated that these factors relate to the applicant’s “qualifying relative.” The BIA stated that “[a]lthough these factors to consider provide a framework for analysis, the elements required to establish extreme hardship are dependent upon facts and circumstances peculiar to each case. 4 The BIA also stated that:
“Relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists. In each case, the trier of fact must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation (e.g., economic detriment due to loss of a job or efforts ordinarily required in relocating or adjusting to life in the native country…”Id.
Other cases of extreme hardship have found that the mere loss of current employment, the inability to maintain one’s present standard of living or to pursue a chosen profession, separation of a family member, or cultural readjustment do not constitute extreme hardship.5
Establishing that an individual has a U.S citizen parent or spouse is pretty straightforward in most cases. A valid birth certificate or a marriage certificate is usually available. There may be those few cases where the validity of the birth or marriage certificate is subject to some dispute. This article assumes that the individual has established the fact.
The key difficulty, and the reason for the high rate of failure of these unlawful presence waiver applications, is establishing that the qualifying relative would suffer extreme hardship if the waiver is not granted.
For the purposes of this waiver, the applicant must show that his or her qualifying relative would experience extreme hardship because of the applicant’s ineligibility to immigrate in two scenarios:
- The qualifying relative remains in the United States while applicant resides abroad, and
- The qualifying relative relocates to reside with applicant abroad.
Regarding the scenario of separation, the applicant can show that, the qualifying relative will experience extreme financial hardship if the applicant was unable to reside in the United States with the relative.
This can be shown by writing a very detailed declaration by the qualifying relative showing that the applicant is the sole financial provider for the family. Applicant can also show that without applicant’s financial contributions the qualifying relative will be unable to afford the family’s financial obligations, particularly if the qualifying relative must cover additional expenses associated with Applicant’s absence such as childcare. The Statement needs to be supported by evidence of the applicant’s income and also that of the qualifying relative. The following support material is very important:
- Family budget,
- Income tax returns
- Copies of paystubs,
- Several of the qualifying relatives paystubs from employment,
- A copy of a lease or mortgage statement
- Bank statements,
- Bills showing typical monthly expenses,
- Estimates of the costs of travel to visit applicant abroad and
Remember that USCIS would want to know who else lives in the house and who contributes to the bills. Evidence of other people living in the house may suggest that financial and child care help is available. USCIS Officers could visit the home to verify this information or search other sources of information.
A mere declaration without any supporting documentary evidence is quite useless. Financial hardship by itself is insufficient to prove extreme hardship. Some U.S citizens have the same financial hardship and the officer may not see anything unusual or extreme about financial hardship only.
Other than financial hardship, evidence of other types of hardship is critical. The applicant can provide evidence to prove that:
- The qualifying relative has a medical condition and depends on applicant for care.
- The qualifying relative is financially dependent on you and you will not be able to provide adequate support from abroad.
- The qualifying relative has financial debts in the United States and cannot pay them without Applicant’s support.
- Your relative has a sick family member and will be unable to care for that person without applicant’s support.
- Applicant is the caregiver for qualifying relative’s children and he or she cannot afford childcare in Applicant’s absence.
- The qualifying relative is experiencing clinical depression as a result of applicant’s immigration situation.
Applicant can attach certified medical reports, psychological evaluations from qualified professionals (must be on official letterhead and signed), childcare receipts, signed letters from caregivers, Statements from bill collectors etc.
Additional documents could include:
- Country reports issued by the U.S. Department of State, or other governmental or human rights organizations, outlining the conditions of Applicant’s home country that will lead to extreme hardship.
- Letters from medical professionals as evidence of physical and/or emotional conditions that will lead to extreme hardship.
- Copies of statements showing any debts that need to be settled in the United States.
- Copies of the qualifying relative’s professional and/or educational credentials.
- News articles reporting on new events in Applicant’s home country that will lead to extreme hardship.
- Signed and notarized letters from relatives, professionals and/or friends who are in a position to validate certain arguments for extreme hardship.
The goal of providing this evidence is to establish that that the qualifying relative’s emotional suffering rises above the level normally associated with separation in the event the applicant is found to be inadmissible. It has to raise higher than the ordinary consequences of separation. Note that USCIS receives probably thousands of these waiver requests per day. One must seek to show that the hardship is truly extreme. The key word is-extreme.
While notarized statements from friends and family are very useful, they should not merely demonstrate their desire that Applicant be allowed to remain in the United States. These statements are not primary evidence of hardships to the qualifying relative and are afforded minimal weight in the determination of extreme hardship. The statements should preferably point to other evidence of hardship by stating facts and circumstances known to the writer which support a finding of potential extreme hardship. Writers should be people so well known or connected to Applicant and Applicant’s family that they should personally know those facts they are writing about. For this reason, the writers of these support letters must be chosen carefully. The writers must also provide their addresses, phone numbers and immigration status. These support letters should be preferably notarized.
USCIS considers the hardship claims related to separation individually and collectively. The cumulative effect of the financial and emotional hardships the qualifying relative would experience due to separation has to rise to the level of extreme hardship.
The second scenario is the relocation scenario. This is the alternate scenario where the qualifying relative is forced to travel abroad to reside with Applicant.
Regarding the scenario of relocation, Applicant and qualifying relative can show that the qualifying relative will experience extreme personal and financial hardships if qualifying relative chooses to relocate to a foreign country to reside with Applicant. It is not enough to simply say the following without more:
- Applicant and qualifying relative will be separated from family and friends in the United States if they move to a foreign country.
- Applicant will struggle to readjust to life overseas after living in the United States for many years.
- Applicant and qualifying relative will not be able to secure employment in overseas, leading to a much lower standard of living for the family.
- The low standard of living, combined with the poor quality of the educational and medical facilities overseas, will make it difficult for children to adjust to life in overseas.
- The security of the family will be threatened by the ongoing violence and crime in the foreign country.
Though the above statements can be made as a preface to describing the potential extreme hardship, they have to be woven into the larger story about how exactly the extreme hardship will come about. The above statements taken by themselves show nothing more than the ordinary consequences of deportation. These statements are not evidence of the extreme hardship needed to succeed on an application for a waiver. The evidence must be provided.
The courts have consistently held that the common or typical results of removal and inadmissibility do not constitute extreme hardship. In the context of relocation, the relevant factors include: economic disadvantage, loss of current employment, inability to maintain or replicate one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of children who have never lived outside the United States, inferior educational opportunities in the foreign country, and inferior medical facilities in the foreign country. 6
These are the factors to focus on. But the key here is to provide actual evidence in support.
Some of the more common arguments for extreme hardship when the qualifying relative accompanies Applicant overseas include, but are not limited to:
- Applicant’s country is in or on the verge of war and/or political upheaval.
- The qualifying relative has a serious medical condition that cannot be adequately treated in your home country.
- The qualifying relative will be discriminated against in the foreign country.
- The qualifying relative does not know the language of the foreign country.
- The qualifying relative is a primary caretaker for a sick family member in the United States.
- The qualifying relative will be unable to secure gainful employment in the foreign country.
- The qualifying relative’s educational progress will come to a halt.
- The qualifying relative has children from a previous relationship who will not be allowed to live or visit the foreign country due to custody issues.
- The foreign country has a high rate of violence.
- The qualifying relative has financial debt in the United States that cannot be paid from the foreign country.
Remember that each of the above statements must be supported by some credible independent evidence such as the U.S Department of State Country Conditions reports, the CIA Country Factbook, credible recent publications, local media reports, expert opinions or knowledgeable credible persons.
Medical reports, court orders and other official records can support the claims of hardship where asserted. Again, statements without documentary evidence are of little value. It is essential to collect evidence to support each point.
Additionally, while USCIS recognizes that many areas of the world are prone to greater levels of crime, violence, and instability than the United States, Applicant must provide evidence that Applicant and family would be exposed to a greater level of risk than the average resident of the area in which Applicant intends to reside or would be unable to take measures to reduce this risk.
- ORGANIZE THE EVIDENCE
It is essential to carefully organize the evidence when submitting a form I-601 A or any other application to USCIS for that matter.
The suggested organization of the application is as follows:
- A cover letter indicating the Applicant’s A-number, name, address, date, and phone number. The letter also needs give a summary of the evidence contained in the package.
- An index of documents with tabs and numbered pages.
- A filing fee check for the exact filing fee. A money order is recommended.
- The form G-28 (if represented by an attorney).
- Form I-601 A completely filled out and signed.
- Supporting declarations of both the Applicant and the qualifying relative.
The declarations need to refer to the supporting evidence included to make it easier for the USCIS adjudicator to follow the story.
- Tabbed Supporting evidence.
- FINAL NOTES
If the I-601A application is approved, the USCIS sends a letter of approval which Applicant can carry to the Immigrant Visa interview overseas without the risk of being found inadmissible solely on account of unlawful presence in the United States.
But there are still some risks.
Before departing the country, Applicant needs to make sure that there is absolutely no other applicable ground of inadmissibility because if there is, Applicant will have to submit a form I-601 Application for Waiver of Grounds of Inadmissibility for that other ground found.
This may delay a decision on a visa for almost a year even if it were to be eventually approved. The chances of denial are higher if the application is made overseas. Just to illustrate the point, an applicant obtained an I-601A waiver together with her three daughters and travelled with them to Mexico for the Immigrant Visa Interview. During the interview, it emerged that the applicant had brought the daughters to the United States illegally (without inspection) when she initially entered to United States.
Despite the fact that she had the I-601A waiver, she could not receive her Green Card (Immigrant Visa) and she was stuck in Mexico because she was found to be inadmissible for smuggling her daughters into the United States. Her three daughters received their green cards at the interview. They had to travel, by themselves back to the United States while their mother waited nine months for the approval of the I-601 and her green card. If the I-601 waiver had been denied, she could be stuck in Mexico until today.
This is just an illustration of how tricky the situation can be.
If the waiver is denied, Applicant may not appeal this decision or file a motion to reopen or reconsider this decision. The grant or denial of an I-601 Waiver is entirely discretionary. Applicant may however, file-a new Form I-601A provided Applicant meets the eligibility and filing requirements for the Provisional Unlawful Presence Waiver at the time of filing. Alternatively, Applicant may still choose to travel overseas and file Form 1-601, Application for Waiver of Grounds of Inadmissibility, after the immigrant visa interview at a U.S. Embassy or consulate, if a consular officer finds that Applicant ineligible for an immigrant visa based on a ground that may be waived. This decision however has serious consequences because should the waiver be denied, the Applicant is forever locked out of the United States.
Japheth N. Matemu
Master of Laws (LL.M) – Immigration Law and Policy
5640 Six Forks Road, Suite 201
Raleigh, NC 27609
(984) 242 0740