One common scenario that immigration lawyers come across looks like this:
A person risks their life by crossing the desert and entering the United States without being inspected at the border.
The person then begins living and working in the United States.
After living in the US for a period of time he/she falls in love and marries a US Citizen.
Understandably, the person wants to stay in the United States with their spouse.
This post explores one possible option that allows people in this position to obtain a green card and stay in the United States. The option involves applying for the 601A waiver.
The Typical Marriage Based Green Card Scenario(If the couple is in the US)
Whenever a US citizen marries a foreign national, it is common for the citizen to apply for a green card for their new spouse. Oftentimes, this process goes smoothly as long as the couple can prove that their relationship is genuine. If the bona fide nature of their relationship can be demonstrated, then the foreign national spouse will be able to file for adjustment of status and obtain a green card. Unfortunately, if you have committed certain crimes or immigration violations you will be unable to successfully file for adjustment of status and obtain your green card without applying for a waiver.
Grounds that will prevent you from being able to adjust to green card status
As part of the US immigration laws, there are inadmissibility grounds that will keep you from being able to enter the United States. There are also bars to adjustment of status that will keep you from being able to adjust status. In order for you to successfully file for adjustment of status and obtain your green card, you can not have an inadmissibility ground or a bar to adjustment of status. There are many reasons why you may not qualify for adjustment of status. The most common grounds include:
Unlawful Presence
Criminal History
Misrepresentation
9C(Unlawful Presence in the US for over one year, then departure and re-entry without inspection)
Alien Smuggling
Prior Deportation
Many of the factors that may make you ineligible to adjust status can be waived. By far, the most common ground that immigration lawyers see that prevents adjustment of status is unlawful presence. If unlawful presence is your only bar to adjustment of status, then you may apply for the 601A waiver. This is good news because the 601A waiver allows you to remain in the United States and avoid the heartache of being separated from your family while your application is pending.
The Typical 601 Waiver Process
For a standard 601 waiver, the process involves:
Filing the I-130 petition for your spouse–wait 5-12 months for a decision
Going through processing with the National Visa Center(NVC)–process will take 2-5 months
Going to the interview–2 weeks
Filing the I-601 after the interview–wait about 15 months for a decision
Updating the case at the consulate after approval–will take 1-3 months
Entering the US on an immigrant visa
As you can see, the process is long and could result in you being separated from your spouse for a very long time. Your life will be much easier if you can qualify for a 601A waiver. As you will see below, the 601A involves less separation from your family because you can remain in the United States while the 601A waiver is pending.
The 601A Waiver Process
For a 601A waiver, the process involves:
Filing the I-130 petition for family member–wait(in the US) 5-12 months for a decision
Paying the immigrant visa bill with the NVC after approval if the I-130(the bill is usually generated approximately one month after approval)
Filing the I-601A after paying the bill–wait(in the US) approximately 5 months for a decision
Going through NVC processing while you wait for the decision on the 601A Waiver(2-5 months)
Waiting for the interview(1-4 months after approval)
Leaving the US to attend the consular interview–2 weeks
Entering the US on an immigrant visa
The total 601A processing time: usually 11-23 months
The Extreme Hardship Standard
In order to succeed on a 601A waiver, the US citizen spouse will have to show that they would suffer extreme hardship if the 601 waiver is denied. You have to show both the hardship that you would endure if your spouse would be forced to leave the country and the hardship that you would endure if you had to leave the US and live in your spouse’s home country.
Unfortunately the term “extreme hardship” is not defined in the regulations. Generally, it means “more than usual hardship” than one would experience if they had to live in a foreign land. For example, an explanation that the US citizen spouse would have to learn the language or adjust to a new culture is insufficient.
In order to be successful, you have to show that the US Citizen family member would suffer extreme hardship if the foreign national spouse had to live abroad. Additionally, you have to demonstrate that the US citizen spouse would experience extreme hardship if they had to relocate abroad. What Documents can be used to establish extreme hardship for the 601A Waiver?
There are a number of documents that you can submit to demonstrate extreme hardship for the 601A Waiver. These documents include:
Declarations
Declarations can be used to demonstrate the hardship that you or your family member would suffer if the waiver is denied. One way to convey the hardship is to describe the current day in the life of the affected family member. The statement could then describe what life would be like without the family member who seeks the waiver. This technique can be a powerful way to show that life would be bleak if the waiver is unsuccessful. Additional declarations from family or neutral parties can also be useful. These documents can be used to bolster claims of economic or psychological hardship that are made by the qualifying relative.
Evidence of Health Related Issues
Sometimes, a US citizen or green card holder’s health issues make moving abroad challenging. If health issues play a role in your case, you should include doctors reports that highlight the conditions.
Evidence of the Financial Situation
Oftentimes, the applicant for the 601A waiver is the primary breadwinner for the family. If this is the case, it is important to provide evidence of the financial situation. Does the applicant earn a salary that the family depends upon? Does the salary pay for childcare or health care costs for elderly family? If so, it is important to include declarations and financial documents that demonstrate this reality.
Evidence of Ties to the United States
The ties to the US and the lack of ties to the relevant foreign country should also be highlighted in a 601A Waiver. This can be shown through declarations, property records etc.
Common 601A Waiver Example Scenarios
There are a number of common fact patterns that immigration lawyers come across when evaluating these waivers. Below I listed one bad and one good hypothetical that are based on common scenarios that we see.
The Good Hypo
Hypothetical # 1–The hardworking husband who entered without inspection
FACTS: A mexican national enters the United States nine years ago and does not leave. He has never been arrested nor received any public benefits. This gentleman is married to a US citizen and works long hours in the construction industry in order to support his family. He is the primary breadwinner in the family earning $45,000 per year. His US citizen wife earns $15,000 as a part time receptionist at a dental office.
ODDS OF SUCCESS: The odds of success in this typical scenario are high(with proper guidance from an immigration lawyer) given the fact that the family relies on the husband’s income. The financial situation would be the basis for the extreme hardship.
The Bad Hypo
Hypothetical # 2–Re-entry without inspection after one year of unlawful presence
Assume the same facts as stated above, but the husband left the United States to attend a family funeral in Mexico, then re-entered the United States without being inspected at the border. Also, assume that the wife suffered a debilitating stroke and now needs around the clock care. To make matters worse, the wife does not have any family members who are able to care for her.
ODDS OF SUCCESS: The dreaded 9C bar applies because of one year of unlawful presence, departure, then re-entry without inspection. Therefore, the husband would have to return to Mexico for 10 years before he could apply for a waiver. Sadly, the extreme hardship is statutorily irrelevant.
601A Approval Rates
Naturally immigration lawyers are commonly asked about the approval rates for the 601A waiver. These rates are not super relevant because the strength of you 601A waiver is going to depend on the evidence that you possess and on the skill of your immigration lawyer. Nonetheless, I am happy to share the approval rates for the 601A waiver that I have seen. In 2016, the unofficial statistics on 601A approval rates indicate an 83% approval rate. In 2015 the approval rate was around 70%.
Conclusion
Unlawful presence presents challenges for those who want to obtain a green card through marriage. The good news is that these challenges can be overcome if you assemble a strong 601A waiver that includes solid evidence of hardship to a US citizen.
