Provisional Waiver Gaining Ground With Frustrated Immigrant As the Last Option

Transcription

1 It is no longer gainsaying to say that there are many immigrants in the United States today who are stranded due to their mode of entry. These immigrants entered the U.S. without inspection. They are married to U.S. citizens, spouses with children, but they cannot adjust their status in the U.S. because they are not qualified for payment of $1000 penalty under Section 245(i) of the Immigration & Nationality Act as amended. It appears now since the passage of the Comprehensive Immigration Reform is no longer imminent, that the provisional waiver route is the only option for those who entered without inspection to obtain their permanent resident status. The process will require traveling abroad to obtain the green card after the approval of the provisional waiver in the United States. It will be recalled that the U.S. Citizenship and Immigration Services released a bulletin on March 4, 2013 expantiating on this program. According to the U.S. Citizenship & Immigration Services; Beginning March 4, certain immigrant visa applicants who are the spouses, children and parents of U.S. citizens (immediate relatives), and have been unlawfully present in the United States, can start applying for provisional unlawful presence waivers through a new process. The new provisional unlawful presence waiver process is for certain individuals who seek a waiver of inadmissibility only for unlawful presence. They can now apply for a provisional unlawful presence waiver while in the United States and before departing for their immigrant visa interview at a U.S. Embassy or Consulate abroad. Under the current process, which continues to remain in effect, immediate relatives of U.S. citizens who are not eligible to adjust 1 / 5

2 status in the United States have to travel abroad and be found inadmissible at their immigrant visa interview before they can apply for an inadmissibility waiver. The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members go through the process of becoming lawful permanent residents of the United States. All immigrants should not be afraid of this process just because it requires traveling abroad for 2weeks. Once America promise something, America will deliver. Once your waiver is approved and your attorney check your background and certifies that you are clean, it is ok to travel abroad to obtain the green card rather that stay in the U.S. illegally without an end in sight. The process of applying for provisional waiver will require the services of an attorney. Please do not just fill out forms for this purpose. Your attorney must file a comprehensive brief detailiing the extreme hardship your U.S. citizen spouse or parent will suffer if you are not allowed back into the United States. Once the waiver is approved, your path to return to the U.S. is cleared. If your marriage is not solid, please do not use the provisional waiver approach. The U.S. Embassy abroad could call your spouse during the interview to verify your relationship. It is very important to speak to a qualify immigration attorney before starting this process. It must be noted that the biggest and the most difficult hurdle in the provisional waiver process is being able to prove that your spouse or your parent who is a U.S. citizen or a green card holder will suffer extreme hardship if you are deported or are not allowed to reenter the United States. 2 / 5

3 According to case laws, the term Extreme hardship is not a definable term of fixed and inflexible meaning, and the elements to establish such hardship are dependent upon the facts and circumstances of each case. Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (1999), Matte r of Pilch, 21 I&N Dec. 627, 630 (BIA 1997); see also Matter of L-O-G, 21 I&N Dec. 413 (BIA 1997); Matter of Chumpitazi, 16 I&N Dec. 629, 635 (BIA 1978) The leading authority on this matter is the Matter of Cervantes-Gonzalez, supra. The Cervantes-Gonzalez Court identified certain factors in assessing what constitute extreme hardship namely; Presence of the Qualifying Relative ties in the U.S. The Qualifying Relative ties outside the U.S. The Condition in the Country the Qualifying Relative would relocate Extent of the Qualifying Relative s ties to such Country Financial Impact of Departure from the U.S. 3 / 5

4 Conditions of Health of Qualifying Relative Availability of Medical Care in the Country of Return. It is pertinent to note that the intent of Congress in creating the waiver of misrepresentation was to help unite families and preserve family ties composed of United States citizens or lawful permanent residents. See Matter of Tijam, 22 I&N Dec. 408, (BIA 1998). Therefore, the Board of Immigration Appeals has held that extreme hardship is deduced from the aggregate of numerous impacts the separation of the alien will cause to the qualifying relative if admission is refused. According to the Court, though the factors though not extreme in themselves, the entire range of hardship must be considered in totality in determining whether or not the hardships are extreme. Matter of Ige 20 I&N Dec. 880 (BIA 1994). This is the hurdle your lawyer must cross before you can obtain green card from the provisional waiver process. This article is for your information only; it is not a legal advice. It is not a representation of any future outcome. If you need any immigration help or have any question, please feel free to contact Attorney Famuyide at or send your to jfamuyide@aol.com. 4 / 5

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