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Charles and Michelle hired a New York attorney to help them with their immigration case.  Michelle is a U.S. citizen and Charles would like to be.  Charles came to the U.S. as a crewman and stayed.  He met and married Michelle and they have two children together.


The New York attorney helped them file the Petition for Alien Relative (Form I-130).  That was approved.  Charles can’t adjust his status in the U.S. because he entered as a crewman.  That means he needs to meet with a consular official in his country through what is called consular processing.  However, because he accrued unlawful presence in the U.S. (unauthorized time in the U.S.) of more than a year he had to file a waiver to forgive his unlawful presence or he wouldn’t be able to return to the U.S. for 10 years.The New York attorney “helped” them file for the Provisional Unlawful Presence Waiver (Form I-601A).  He did a poor job in putting the package together.

What is the Provisional Unlawful Presence Waiver (Form I-601A)?

The Provisional Unlawful Presence Waiver allows an immigrant to file for the waiver inside the U.S.  This waiver is “provisionally” granted by USCIS.  It is “provisional” because the Immigration Naturalization Act gives the Department of State the last word on the matter.  So when the waiver is approved (meaning Charles is only inadmissible to the U.S. because of unlawful presence), he then presents himself for a consular official (Department of State employee) at the U.S. consulate in his home country.  If the official agrees that the only basis for Charles’ inadmissibility is his unlawful presence, and he met the standard for the waiver, Charles will be allowed to enter the U.S.  Upon entering usually within 30-60 days, Charles will be issued his green card.

To get the waiver approved, Charles must show:

  1. Extreme Hardship to a qualifying Relative, in this case it is his U.S. citizen spouse; and
  2. That discretion is warranted.

Extreme Hardship is not defined anywhere.  However, we have years of court cases that give us a fair idea of what Extreme Hardship is.  At its core, Charles has to show that the hardship to his U.S. citizen wife, Michelle, is something more than the common consequences of a separation.  That usually means documenting hardship to Michelle while considering factors like medical/psychological, financial, country conditions, education, and personal factors.  The waivers are very fact specific.

What happened with Charles’ Waiver?

I couldn’t find much of an effort done by the New York attorney.  What was submitted with the initial package had zero chance of success.  There was no medical or psychological factors presented.  The package only addressed general separation and general financial hardships, but nothing “extreme.”  A Request for Evidence was issued, asking for examples of extreme hardship? Now it is possible that Charles and Michelle were rushed to file the petition, but the attorney would provide a massive response to an expected Request for Evidence. But tha didn’t happen.  The New York attorney only provided a psychologist’s report documenting Michelle’s circumstances. It was a missed opportunity. The waiver was appropriately denied.  Because there is no appeal, Charles and Michelle need to refile Form I-601A or try an alternative approach.

What should they do now?

President Obama’s November 20, 2014 gives Charles two options:

  1. Soon to be announced is clarification of what is “Extreme Hardship.” He would need to take all the evidence previously submitted and go all out.  Include evidence of all the factors showing Extreme Hardship.  This is doable and would likely be the fastest path to getting his green card since he already has an approved form I-130.
  2. Apply for Deferred Action for Parental Accountability (DAPA) on May 19, 2015.  He will likely get an approval by the end of 2015.  He then must file for Advance Parole (permission to leave the U.S. and re-enter without triggering the 3 and 10 year bar).  Once he returns to the U.S., Charles will then have a legal entry into the U.S. and he can immediately file for his adjustment of status (Form I-485) to get a green card.  This is a longer process.  There are more filings, which mean higher fees.

Since Charles has a strong Extreme Hardship case, he should re-file for the waiver.  If he doesn’t want to re-file, then he should file for DAPA.  Either way, he shouldn’t go back to the New York attorney.  He didn’t do a good job working up the Extreme Hardship.  Who you hire matters.  Make sure you have someone with a solid track record and breaks things down for you in a way you understand. Don’t just accept when someone tells you, “let me worry about that.”  It is your life. You deserve to know exactly what will be done for you, how it will be done, and in what time frame.

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NY immigration attorney screws up waiver application