Wolf W. Kaufmann

Immigration Attorney in Orange County    (714) 627-2475

Anaheim, Southern California                   email: info@orangeimmigration.com

Hardship waivers: a way to stay in the U.S. or come back without waiting forever

If you are married to an American citizen or a permanent resident, or, have American citizen or permanent resident parents, you can apply for a green card to become a permanent resident.

But here is a problem: If you live in the United States and did not come legally, or if you have other problems such as a certain criminal record or prior immigration violations, you cannot receive a green card before you have spent many years outside of the United States - even if you are married to an American or have children!

A typical period of stay outside of the U.S. can be 10 years or more.

In some cases, though, this long time away from your loved ones can be “waived,” that is the government will make an exception and let you apply for a green card (or sometimes another visa) right away. Usually, to receive such a waiver, your American citizen or permanent resident spouse or parent has to show that it would be an extreme or unusual hardship for him/her if he/she had to wait so many years for you to be able to move to the U.S.

This sounds simple, but it is not. First of all, this waiver is not available for everyone! On the contrary, there are many cases where no waiver is available. Before you start applying, you need to consult an attorney. Second, the approval rate for waivers is pretty low, so you should discuss this with an attorney before you spend money on the considerable fees the government takes.

New Law? Lately many people call and refer to a “new law” about waivers. In fact, there is no new law, but a new procedure, which applies to immigrants who are married to American citizens or permanent residents and who have entered the country illegally. It used to be that you had to make a waiver application from outside the U.S., that means you had first to leave, then wait for the waiver application to be granted, and then finish processing your papers and come back. This often took a year or more, and you never knew if you were allowed to come back.

New procedures for certain immigrants

The new procedure from March 2013 on now lets certain immigrants file the waiver application while they still are in the United States. They still will need to leave to pick up their papers outside the U.S., but then they will know their waiver has been granted.

Who can apply for a waiver in the U.S.: Those who have entered illegally, are married to an American citizen, and can show the hardship. They must not have been deported before, ordered deported, have entered illegally more than one time (in most cases) or need a waiver for having a criminal record.

How do you show hardship?

The hardship required has to be “extreme.” The government will basically ask two questions:

1) Why would it be so hard to live with your spouse outside of the U.S.?

2) If you can’t live outside of the U.S., why can you not live separated, for example across the border (one living on the U.S. side, one on the Mexican side)?

To be approved for a waiver you need more than general hardship such as not speaking the language, not being able to find a good job etc. In fact, there are not many single reasons that will grant a waiver, but usually a combination of many factors. Everything needs to be carefully documented, this is what we will do for you if we work on your case.

Those new procedures are only applicable for this certain kind of waiver. Other waivers, for example for criminal records, may be available as well, but must be applied for from outside the U.S. as before.

Call us to find out if you qualify for a waiver!

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