Being with your family is probably the most important thing to you and your spouse. It is for me. Maybe we kid about needing to get away from our children and spouses, but imagine having to spend many months or even years away from your spouse, who is waiting to reunite with you and the rest of the family back in another country, say Mexico. You would lose half (or maybe even all) of your household income, his emotional support and his all-important role as the father of your children.
And on the other side of the coin, imagine not being able to see your children for possibly ten years! As a mom of three, that is unfathomable. It’s no wonder that so many of my clients opt to remain in status quo, that is, to live in the U.S. without a green card or even a permit to legally work here so they can remain with their families.
Thankfully, the recently implemented provisional unlawful presence waiver addresses this situation, and as an immigration lawyer who sees the above-referenced scenario at least several times a week, there is definitely an increase of people wanting to take advantage of the provisional waiver and legalize their statuses to provide better lives for themselves and their families.
So, if you fall in this category of families, what do you do?
STEP 1. FILE THE I-130 PETITION, PETITION FOR ALIEN RELATIVE
If you haven’t filed your I-130 Petition for your spouse, you must do that immediately. But if your spouse has any previous removal/deportation issues, any criminal charges or convictions, wait! These issues need to be fleshed out first before you file anything. Why is this relevant? Because the provisional waiver only waives unlawful presence in the U.S. and nothing else. So it doesn’t waive crimes, and it doesn’t waive previous removal orders.
If you’ve already filed and your spouse has these issues, it’s ok. Your case needs to be evaluated by an experienced immigration attorney. You cannot and should not do it alone. It’s too risky, too important, and too costly to not have a professional guide you if you think there are any issues in the case whatsoever that could prevent your spouse from taking advantage of the provisional waiver.
The I-130 Petition takes USCIS approximately 6-8 months to approve. Once you have an approval, the case will then be sent to the National Visa Center (NVC). The immigrant visa processing fee will then have to be paid and after you have paid this fee, you must notify the NVC that your spouse will be applying for the provisional unlawful presence waiver.
STEP 2. NOTIFY THE NATIONAL VISA CENTER
Notifying the NVC that you are applying for the provisional waiver is important because if you don’t, an interview might be scheduled abroad and cause delays in the processing of the case. So, notifying the NVC will avoid delays. At this step, you will also have to pay the National Visa Center fee bills.
STEP 3. FILE FORM I-601A – PROVISIONAL UNLAWFUL PRESENCE WAIVER
Once NVC has been notified, your spouse needs to file Form I-601A with USCIS. Along with this form, you and your spouse MUST provide supporting documents that you (the U.S. Citizen spouse) will suffer extreme hardship if he is barred from entering the U.S. for three or ten years. Most of my clients have more than one year of unlawful presence in the U.S., and therefore, would trigger the 10-year bar. The 3-year bar is triggered if there is unlawful presence of 180 days or more (but less than a year).
What is extreme hardship?
I will have to do another post about this in the near future, but extreme hardship is more than just “ordinary hardship”. USCIS will look to the following support that your spouse might provide to you and your family to determine whether it would be extreme hardship for him not to return to the U.S. for ten years, assuming the 10-year bar: financial support, emotional support, and physical support, for cases where there might be medical issues.
You must “go all out” here to show USCIS that you will suffer extreme hardship if your spouse is barred from coming back to the U.S. for 10 years. Many times, when a husband and wife are in my conference room, I will ask the wife to just imagine if her husband were not around for ten years. What would happen to the house/apartment? Who would pay all the bills or even half of them? Would you have to get a 2nd job? Who would have to take care of the children if you did? If the she suffers from anxiety or depression, I ask whether the condition would worsen if her husband were barred. If there are any medical issues, who would care for the children if the medical issues worsened or if hospitalization were required.
These are just some of the issues to discuss and provide documentary evidence for to show extreme hardship. While children are not qualifying relatives (we cannot show the children’s extreme hardship, only the spouse’s), the children’s hardship can be imputed to the U.S. Citizen spouse. For example, the children’s care would fall 100% on the U.S. Citizen spouse, with no help from the husband, which would in turn result in an increased level of physical hardship for the spouse, anxiety, depression, etc.
So the takeaway here is do not skimp on the evidence. Extreme hardship is the whole point of Form I-601A so do not be shy of baring it all, with all the supporting documents to prove it.
STEP 4. GO TO THE IMMIGRANT VISA INTERVIEW ABROAD.
Once USCIS approves Form I-601A, your spouse will then have to travel to his country for his visa interview. In this example, it’s Mexico, so the interview would be in Ciudad Juarez. If your spouse has no other issues regarding whether he is admissable to the U.S., then the Officer will approve the granting of his immigrant visa, and your spouse will be able to return back to the U.S. as an immigrant.
In addition to filing the I-130 Petition and preparing the all-important supporting documentation for Form I-601A, you must also make sure to keep up with the requirements for the visa processing with the National Visa Center. There are specific instructions for this process in a blog post I wrote entitled ‘I-130 Petitions = Family Unity: Steps to Petition for Spouse Abroad’, so take a look at that for guidance.
Filing under the provisional unlawful presence waiver requires multiple coordinated steps and lots of homework on your part with regard to getting the extreme hardship evidence in order. I hope this blog post has been helpful to you. Please share your comments and questions with me to let me know how it’s going.
