Prove the Waiver

WHAT IS THE WAIVER AND HOW CAN I PROVE IT?

On November 20, 2014, President Obama made an announcement that he was extending the “waivers” to the family of Lawful Permanent Residents. That means, if you are the spouse, child or Parent of a United States Citizen (now also a Lawful Permanent Resident), a new provisional waiver may be applicable to you or your family. The waiver was available only for family of United States citizens. Now, it was “extended” to Lawful Permanent Residents. The waiver reduces the time U.S. citizens and Lawful Permanent Residents are separated from their immediate relatives (spouse, children and parents), who want to become lawful permanent residents (green card holders) of the United States.

 

This rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. It is important to note that just 2 years ago this provisional waiver was not available and the beneficiary had to travel back to his/her country and wait for 1, 2, or 3 years separated from the family. If you believe this waiver may apply to you, you should call us immediately to obtain more information about the filing process. Do not wait, there is much that needs to be done to prove the “extreme hardship” requirement for this waiver.

Many people believe that the waiver is about proving financial hardship or emotional hardship. It is about both, but it goes beyond that. Most of the time, during the application process, counselors, psychologists and therapists are used to prove the “hardship.” But the problem is that unless you find the right person, the waiver can be denied.

In order to be successful in the 601 waiver process, we will need to show that the US citizen or Lawful permanent resident will suffer extreme hardship if the waiver is denied. The term “extreme hardship” does not mean “extreme” in the common sense of the word. The US law perceives normal, usual effects of deportation or inadmissibility as not “extreme”. So separation of parents and small children, loss of employment or residence, uprooting of family are not considered “extreme”, contrary to the apparent perception about US being family oriented and having human face government or laws. Following this line of thought, if suicide was a common effect of deportation, it would be considered “normal”.

I would like to give you an example of what the Board of Immigration Appeals has said when it was rejecting an appeal of a waiver:

“U.S. court decisions have repeatedly held that the common results of deportation or exclusion are insufficient to prove extreme hardship. See Hassan v. INS, 927 F.2d 465, 468 (9th Cir. 1991). For example, Matter of Pilch, 21 I&N December 627 (BIA 1996), held that emotional hardship caused by severing family and community ties is a common result of deportation and does not constitute extreme hardship. In addition, Perez v. INS, 96 F.3d 390 (9th Cir. 1996), held that the common results of deportation are insufficient to prove extreme hardship and defined extreme hardship as hardship that was unusual or beyond that which would normally be expected upon deportation. Hassan v. INS, supra, held further that the uprooting of family and separation from friends does not necessarily amount to extreme hardship but rather represents the type of inconvenience and hardship experienced by the families of most aliens being deported. The AAO recognizes that the applicant’s spouse and/or children would likely endure hardship as a result of separation from the applicant. However, their situation, if they remain in the United States, is typical to individuals separated as a result of deportation or exclusion and does not rise to the level of extreme hardship.”

You should keep in mind that this article is not intended to provide you with legal advice; it is intended only to provide guidance about the waiver and what it means. Furthermore, the article is not intended to explain or identify all potential issues that may arise in connection with the filing of a waiver.  Each case is fact-specific and therefore similar cases may have different outcomes.

I represent individuals in immigration cases. If you have any questions or concerns about an immigration case and/or you are undocumented, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at joseperez@joseperezyourlawyer.com. The Law Office of Jose Perez is located at 120 East Washington Street, Suite 925, Syracuse, New York13202. Please look for my next article in the February edition. I hope that this new year is filled with success, hope and health!!!

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