Our office received approval of the I-601A Provisional Waiver for a Nicaraguan applicant married to a U.S. citizen wife. As part of the Provisional Waiver process, we first provided our clients with a detailed letter going over every step of the immigrant visa process (including a checklist of supporting documents to gather and return to our office). We then expeditiously prepared the I-130 Petition for Alien Relative and filed it with the USCIS on behalf of our clients.
The I-130 Petition for Alien Relative was approved by the USCIS approximately 5 months after submission by our office. About 1 month after USCIS approval of the I-130 Petition, the National Visa Center received the approved immigrant visa case from the USCIS and issued its Immigrant Visa and Affidavit of Support fee bills. After payment of the Immigrant Visa fee by the applicant, our office submitted the I-601 Provisional Waiver application package which included: a complete set of USCIS forms requesting consideration for the I-601A Provisional Waiver; a 31 page waiver statement detailing relevant case law favorable to my client’s situation and presenting the extreme hardships that applied to this case; and a comprehensive collection of exhibits to prove the extreme hardships being presented.
Approval of the I-601 Provisional Waiver application was received just 4 months after submission by our office.
The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in 8 CFR 212.7(e) and warrant a favorable exercise of discretion.
To be eligible for the I-601A Provisional Waiver for Unlawful Presence, you must fulfill ALL of the following conditions:
- Be 17 years of age or older.
- Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
- Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
- Have a pending immigrant visa case with the Dept. of State for the approved immediate relative petition and have paid the Dept. of State immigrant visa processing fee.
- Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
- Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
- Not have been scheduled for an immigrant visa interview by Dept. of State before January 3, 2013.
- You are inadmissible ONLY for unlawful presence in the United States for more than 180 days but less than 1 year during a single stay (INA Section 212(a)(9)(B)(i)(I)), or unlawful presence in the United States for 1 year or more during a single stay (INA Section 212(a)(9)(B)(i)(II).
In this case, the applicant is a Nicaraguan national who entered the United States without inspection to earn money and support his mother back in his home country. The favorable factors of this case includes some of the following:
- The Nicaraguan husband has extensive familial ties in the United States including his daughter, his father, his step-mother, his paternal grandmother, his uncles, and several nephews and nieces, all of whom reside legally in the U.S.
- The U.S. citizen wife is responsible for the daily living and medical needs of her ill mother, who suffers from severe hearing loss and has a long history of mental illness. She also assists her mother financially as best she can.
- The married couple have a significant amount of debt and the Nicaraguan husband’s monthly income constitutes over 50% of the family’s total monthly income. Without the money the husband earns, the U.S. citizen wife would default on her mortgage, student loans, and credit card debt, as well as on the secured loans on their car and house.
- The U.S. citizen wife has a history of serious illness that required surgery in the past. She needs regular check-ups as her illness may return.
- The Nicaraguan husband has no criminal record, volunteers at his local church, and has a history of productive employment in the U.S.
- The psychological state of the U.S. citizen wife is fragile and she risks serious mental decompensation and psychotic symptoms should she be separated from husband.
- The married couple have an infant daughter who they raise together who would also be impacted emotionally by re-location or separation from her father.
- Re-location of the family to Nicaragua would place the U.S. citizen wife (and their daughter) at risk of psychological distress, financial collapse, and victimization to crime. It would seroiusly endanger the well-being and lives of three U.S. citizens.
It should be noted that the way extreme hardships are presented, discussed, and proven often “make or break” an I-601A Provisional Waiver Application. Extreme hardships should be highlighted and elaborated upon in a realistic and credible manner. Every hardship should also be shown to exist and possibly grow worse in two scenarios: if the qualifying relative is separated from the applicant and if the qualifying relative has to re-locate to another country in order to be with the applicant. Every hardship statement made should be proven with objective evidence that is included in a comprehensive collection of Exhibits.
As a result of the comprehensive package we prepared and submitted on behalf of the Applicant, this I-601A Provisional Waiver application was approved.