Have you been here many years without any immigration status?
Did your case get denied in immigration court, resulting in a deportation order?
THERE MIGHT STILL BE HOPE FOR YOU!
U.S. Immigration Law provides a waiver for those that have U.S. Citizen and Lawful Permanent Resident (Greencard) parents and spouses. In order to qualify for this waiver, the applicant needs to show that his/her removal from the United States will result in Extreme Hardship to the U.S. Citizen or Lawful Permanent Resident spouse or parent. The law has a very strict definition for “Extreme Hardship” and it is much more than simply missing someone. We have to show that this separation will have a deep and negative impact on the lives of the family members. This includes physical, spiritual, financial, social, and mental hardship and it is crucial to provide plenty of documentation to corroborate this claim.
In March of 2013, USCIS changed a regulation to allow for applicants to apply for a waiver WITHOUT leaving the United States. Prior to this, applicants had to apply for a waiver at an American Embassy in their home country. This resulted in many applicants being stuck in their home countries after a denial of the I-601 waiver.
Now, applicants may file an I-601A waiver to forgive their unlawful presence and/or unlawful entry without having to leave the United States to apply for this waiver. However, they must return to their country to do an Immigrant Visa interview. The nature of the interview will depend on what relative applied for their immigrant visa. The immigrant visa process is started by a relative filing an I-130 form on your behalf. The wait time for you to become eligible for an Immigrant Visa will depend on who the relative applying for you is. For example, a U.S. Citizen spouse will not have any additional wait time besides normal processing wait times. However, a petition by a U.S. Citizen sibling will take more than 13 years.
Previously, the I-601A waiver was only available for those with U.S. Citizen spouses or parents. However, last year USCIS issued a new regulation allowing Lawful Permanent Resident spouses and parents to also be qualifying relatives for this application. This will allow many more people to qualify for this relief.
What if I have a deportation order?
There is an additional waiver that you have to file for if you have a deportation order. This waiver is called an I-212. You may file an I-212 by proving hardship to a U.S. Citizen parent or spouse. This waiver will allow you to apply for the I-601A waiver DESPITE the deportation order. You will still have the deportation order and the I-212 grant does not extinguish it, but if the waiver is granted, you can still proceed with the rest of your application.
Previously, I-212 waivers could only be filed with U.S. Embassies abroad. Therefore, many people would get stuck abroad after denials and most people would not dare apply for this reason. However, this year USCIS issued a regulation that allows you to apply for the I-212 waiver while in the United States. This is great news for many people!
However, one thing you should consider before filing an I-212 waiver is trying to reopen and extinguish your deportation order. This will usually involve making a detailed application with the last immigration court that had jurisdiction over your case, whether that be the local Immigration Judge or the Board of Immigration Appeals (BIA). The best way to accomplish this is to get a Government Attorney with the Department of Homeland Security (DHS) to agree to file a Joint Motion on your behalf. This will require very compelling documentation to convince him/her to do this. If the government signs a Joint Motion, the Immigration Judge or the BIA will almost certainly grant your application. If they don’t sign the Joint Motion, you can still ask the Immigration Judge or BIA to reopen your case and they might still do so even if the government objects.
If you succeed with this application, the Immigration Judge will reopen your court case and then “administratively close” it in order to allow you to file your I-601A application. This is wonderful news as this will allow you to answer “NO” to the question “Do you have a Deportation Order”. This is a much better outcome. If this does not succeed, then you will still have the option of filing the I-212 with USCIS.
How this process works:
- First, your relative files an I-130 immigration application for you
- You wait for your I-130 approval receipt
- If you have a deportation order, you can prepare an application at that time to reopen your case. You can also file an I-212
- You prepare an I-601A application by showing the government that your U.S. Citizen or Lawful Permanent Resident Spouse or Parent will suffer Extreme Hardship if you are no longer here
- Once the waiver is approved, you can schedule an interview with the American Embassy in your home country if your petition’s Priority Date is current.
- Go to your home country and do the Immigrant Visa interview
- Enter the US with an Immigrant Visa and receive your Greencard in the mail
A few examples to illustrate this point:
Mr. Wang’s brother is a U.S. Citizen and filed an I-130 for him in 2005. In 2014, Mr. Wang came to take care of his parents (who had become Lawful Permanent Residents through an application filed by Mr. Wang’s brother). Mr. Wang felt he had to come here because his brother was moving out of state for a job and his elderly parents would have a hard time getting used to another community. Mr. Wang has now been solely responsible for tending to all of his parents’ needs since he arrived in 2014. He provides them with housing, buys their medication, takes them to medical appointments, and ensures that they follow their physician’s advice.
Mr. Wang already has an approved I-130. He can start preparing an I-601A application and submit that to USCIS. Once that application is approved, he will be eligible for an Immigrant Visa interview at the Embassy in 2018 since it is taking Sibling Petitions about 13 years to become current. He will then become a Greencard holder and will be allowed to take care of his parents worry-free.
Ms. Zhang entered the United States unlawfully in 2002 as a result of fleeing political persecution in China. She filed an application for asylum. However, because of improper legal advice as well as a very unreasonable Immigration Judge, her asylum case was denied and she received a Deportation Order in 2004. She remained in the United States and continued working and living an honest life. In 2008, her parents applied for Asylum and succeeded and were able to receive their Greencards in 2009. Since Ms. Zhang was over 21 when they filed the application, they were not able to file an Asylee Family member petition for her. Instead, they filed an I-130 on her behalf in 2010.
Ms. Zhang has been primarily responsible for taking care of her parents since 2008. Their health conditions have gotten worse and her father now has Parkinson’s disease and requires her constant care. Ms. Zhang recently met a man (he entered the US with a visa but is now also without immigration status) who she is in love with and wants to marry. However, after learning that marriage would disqualify her from being eligible for her parent’s petition (only U.S. Citizens can petition for married children and her parents do not speak English and cannot pass the test), she decided to move in with her boyfriend until the immigration process is concluded. However, they did have children in 2012 and 2014.
Ms. Zhang can file for a waiver based on the Extreme Hardship that her Lawful Permanent Resident parents would experience if she were to be removed. But, because she has a Deportation Order, she has to take care of that first. She can try and see if the Government will file a Joint Motion based on the demonstrated Hardships of her parents. If they agree, the Petition will almost certainly be approved by the Judge. If not, she can file the Petition directly with the Judge and see how he rules on it. If he approves it, then she can file the I-601A waiver with USCIS. If he denies it, then she can file the I-212 waiver with USCIS. Once her I-212 is approved, then she can file the I-601A.
After her I-601A is granted, she can schedule an interview with the Embassy in China. By then, her Petition’s Priority Date will have become current since petitions by Lawful Permanent Residents for unmarried children is taking about 7 years to become current. Once she passes the interview and receives her Greencard, then she can marry her boyfriend and file a 601A waiver for him. Although the husband entered with a Visa, he has since overstayed so he would need a 601A waiver unless he were to wait until Ms. Zhang becomes a U.S. Citizen which would involve an additional 5 ½ to 6 years wait after she gets her Greencard.
Everyone’s life is different and their immigration options present different challenges which need to be analyzed carefully. As the examples above illustrate, although things might seem without hope, many times there is an immigration option available for those that are willing to ask.
Alexandre Law Firm, P.C.