I-601 Unlawful Presence Waiver Approved for Honduran Husband of U.S. Citizen Subject to 10-Year Bar

Our office obtained approval of an I-601 unlawful presence waiver for a Honduran husband of a U.S. citizen: the Form I-601, Application for Waiver of Grounds of Inadmissibility, which waived his inadmissibility under INA 212(a)(9)(B)(i)(II), the 10-year unlawful presence bar. The waiver was granted under INA 212(a)(9)(B)(v) based on the extreme hardship his U.S. citizen wife would suffer if he were not allowed to join her in the United States.

The applicant first came to the United States legally and was later granted Temporary Protected Status (TPS) after a natural disaster devastated his home country. When it came time to renew his TPS, his application was filed late and denied. He remained in the U.S. to support his young son, who was born here, and he worked steadily for years. Roughly a decade later he decided he could no longer justify living without status, and he left the United States voluntarily. That departure triggered the 10-year bar.

He settled in Central America, continued his education and built a career in the financial industry. He later reconnected with his future wife, a U.S. citizen, and the couple married abroad. They have a young U.S. citizen daughter with several chronic medical conditions. Because of the bar, the family lived apart for the entire marriage: the mother raised their daughter alone in the United States while he sent nearly all of his income home.

The Legal Standard for the I-601 Unlawful Presence Waiver

Section 212(a)(9)(B) of the Immigration and Nationality Act provides, in pertinent part:

(i) In general. – Any alien (other than an alien lawfully admitted for permanent residence) who – . . . (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.

(v) Waiver. – The Attorney General [now the Secretary of Homeland Security] has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General [Secretary] that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

The waiver therefore turns on extreme hardship to the U.S. citizen or permanent resident spouse or parent, not to the applicant himself. The applicant files the I-601 waiver with USCIS after the consulate finds him inadmissible at the immigrant visa interview.

Extreme hardship is not defined in the statute or the regulations. USCIS explains how officers apply the standard in the USCIS Policy Manual, Volume 9, Part B. To be extreme, the hardship must exceed what is usual or expected, but it does not need to be unique, and it is a lower standard than the “exceptional and extremely unusual hardship” required for cancellation of removal. The Policy Manual also recognizes that Congress intended these waivers to promote family unity, and the applicant needs to prove hardship only by a preponderance of the evidence.

Officers weigh all hardship factors together, including family ties, health conditions, financial impact and conditions in the country of relocation (Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999)), and the Board of Immigration Appeals has held that these factors “must be considered in the aggregate” (Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996)). The psychological impact of separation or relocation on the qualifying relative is a recognized factor, and officers may not substitute their own medical opinion for that of a medical professional. USCIS also recognizes that a disability or serious medical condition of the qualifying relative or a dependent family member, such as a child, can weigh heavily in favor of extreme hardship.

If extreme hardship is shown, USCIS then decides whether the applicant merits a favorable exercise of discretion, weighing positive factors such as family ties, good character and rehabilitation against the immigration violation (Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996)).

Note: for applicants applying for an immigrant visa at a U.S. embassy or consulate, as in this case, the I-601 waiver can only be filed after the consular officer finds the applicant inadmissible at the immigrant visa interview. It is therefore important to begin preparing the waiver several months before the interview is scheduled, so that it can be submitted promptly after the finding of inadmissibility. Applicants adjusting status in the United States, by contrast, can file the I-601 waiver together with the I-485 adjustment package or after the I-485 has been filed.

How We Prepared the I-601 Unlawful Presence Waiver

As we do with all of our waiver cases, we began by providing our clients with our Waiver Worksheet package. It contains a comprehensive set of questions for our clients to answer about their lives, which allows us to identify every relevant hardship and discretionary factor (medical, psychological, financial, family and country conditions), along with a detailed checklist of supporting documents to gather. Our waiver preparation process has been refined over 24 years of practice preparing I-601, I-601A, I-212 and 212(d)(3) waivers for clients around the world, and it is designed to make the process as smooth and efficient as possible for our clients, with clear instructions at every step. We also constantly monitor changes in the law and USCIS policy, so that every waiver we prepare reflects the current standards. We are proud to regularly receive approvals of I-601, I-601A, I-212 and 212(d)(3) waivers on behalf of our clients.

Once we identified the most important factors of the case, we prepared a comprehensive 39-page legal brief in support of the I-601 unlawful presence waiver, together with 28 separate exhibits. A licensed clinical social worker evaluated the wife over a two-year period and prepared two psycho-social evaluations, which diagnosed her with Generalized Anxiety Disorder and Major Depressive Disorder and concluded that she was at high risk of psychiatric decompensation if the separation continued (see our post on the elements of a powerful psychological evaluation for I-601 waivers). Throughout the brief, we presented the couple’s life story in a way that personalized their plight and showed why the wife was particularly vulnerable to the hardships of continued separation or relocation.

The exhibits also included the daughter’s medical records, financial records showing the cost of running two households, evidence of student loan debt, proof of the family’s dependence on the wife’s employer-provided health insurance, evidence of the couple’s relationship and constant contact, country conditions reports on Honduras, and character reference letters from the applicant’s employers, professors and longtime friends. A detailed table of exhibits providing objective proof of every crucial assertion in the brief was included, as it is with all of our waiver applications.

Key Factors in the I-601 Unlawful Presence Waiver

The key factors we highlighted in the I-601 unlawful presence waiver included the following:

• Psychological hardship: the wife’s diagnosed Generalized Anxiety Disorder and Major Depressive Disorder, worsened by years of separation, and the professional opinion that continued separation placed her at high risk of decompensation.
• A medically fragile child: their young daughter’s chronic medical conditions required frequent medical visits and treatment, which the wife had to manage alone while working full time.
• Economic hardship: depleted savings, substantial student loan debt, the cost of two separate households, and the risk that the wife would lose her job, which was the family’s main income and only source of health insurance.
• Hardship on relocation: moving to Honduras would mean giving up her career and health insurance, leaving her aging parents, and exposing herself and her daughter to inadequate health care, education and safety conditions.
• Voluntary departure and rehabilitation: the applicant left the United States on his own, has no criminal record anywhere, and has lived abroad lawfully for years since.
• Good moral character and family ties: strong letters from employers and friends, a professional career, and close U.S. citizen family members, including two U.S. citizen children.

As a result of our efforts, the I-601 unlawful presence waiver was approved. After years of separation, the applicant was able to join his wife and daughter in the United States and be present to help raise his daughter and support his family.

If you or a family member needs an I-601, I-601A, or I-212 waiver, you may request a Free Immigration Consultation.

Related Waiver Approvals

• I-601 Unlawful Presence Waiver Approved for Peruvian Wife
• I-601 Waiver for 10-Year Bar Approved for Couple Living Abroad
• I-601A Provisional Waiver Approved for Honduran Spouse

Past results do not guarantee, warrant, or predict the outcome of any future legal matter.