CASE: I-601A Hardship Waiver of Inadmissibility
APPLICANT / BENEFICIARY: Filipina
LOCATION: Corona, California
Our client came to the United States from the Philippines in August 2010 on a C-1 visa (Crewman). She remained in the United States after her entry in August 2010. She married her U.S. citizen husband in February 2017. She retained our office on June 20, 2017 for the I-130 and I-601A waiver filing. We filed an I-130 petition for her in July 2017. This I-130 petition was approved in February 2018.
Our client cannot file for adjustment of status due to her ground of inadmissibility (crewman entry and overstay). She needs a waiver of inadmissibility to become a green card holder.
Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. 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 to the United States.
In 2013, the USCIS announced of new policy called the provisional unlawful presence waiver. Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States.
The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.
INA § 212(i) provides for a discretionary waiver of the entry without inspection inadmissibility ground. To qualify for the waiver, the alien must establish that his or her US Citizen spouse would suffer extreme hardship if the alien were denied admission. INA § 212(i)(1). In addition to the equities presented, the USCIS may consider the nature of the inadmissibility ground.
There is a seminal BIA case that deals with this waiver. In Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999), the BIA identified the factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the alien were denied admission. Those factors include: the presence of LPR or USC family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.
Our client’s I-601A application had a good chance since our client’s U.S. Citizen husband suffers from a great degree of hardship. We argued that if she was removed from the United States, extreme hardship to her husband is clearly foreseeable and evident. He would not be able to take care of his own needs and the bulk of their family chores, most importantly taking care of their child. Also, it would be extremely difficult for him to get the same level of economic stability in the Philippines in case he joins our client there.
In our brief, we also argued that our client and her husband have maintained strong family ties in the United States, that her husband will have difficulty in finding the same level of employment in the Philippines, and that he will face extreme emotional difficulties if she is removed.
On February 12, 2019, we filed the I-601A waiver application which included the brief in support, and documents that demonstrated hardship to her husband if our client is removed from the United States. Eventually, her I-601A waiver was approved on March 17, 2020. Now, she can file packet 3 and 4 here in the United States, and would go to the Philippines shortly to get her immigrant visa.