Immigrants unlawfully residing in the U.S. because they have overstayed a visa are at risk of being deported if their violations are discovered. Unfortunately, once an immigrant is in this position, even leaving voluntarily can prove disastrous. Those who depart the United States after accruing over 6 months of “unlawful presence” in the U.S. are ineligible to re-enter the country for 3 years. And for those immigrants who leave after having overstayed for 12 months or more, the penalties are even more severe: they are ineligible to re-enter the U.S. for 10 full years.
For undocumented immigrants living with close relatives in the U.S., this leaves few good options. One potential solution, if there is a valid visa otherwise available to the foreign national, is to file an I-601 Application for Waiver of Grounds of Inadmissibility. If approved, this will provide a way for an immigrant to be allowed to legally remain in the country. The I-601 waiver allows undocumented immigrants to stay in the U.S. if they have a qualifying relative who will suffer extreme hardship if the foreign national is forced to leave, and again, they must have a valid visa available to them.
- Who counts as a qualifying relative? For an immigrant who has overstayed his or her visa, a qualifying relative is considered a citizen or lawful resident who is a spouse or parent of the applicant.
- You must prove extreme hardship to the qualifying relative: This is largely a subjective test as to what constitutes “extreme hardship.” Unfortunately, the normal heartbreak associated with separating a devoted couple is generally insufficient to meet the required “hardship” test that the government requires for approving I-601 Waivers of Inadmissibility. Some factors that the government considers are:
- Health problems: If the qualifying relative has a physical or psychological condition that he or she needs continuous care for.
- Financial hardship: The potentially devastating financial loss to the qualifying relative if the applicant’s waiver is not approved.
- Latest Twist on the I-601 Waiver: The application process was amended for those without the option to adjust their status in the United States if no valid visa is available. Last year, the Obama administration issued an Executive Order regarding the I-601 waiver. Beginning on March 4, 2013, immigrants who could not otherwise adjust their status in this country, because of the way they entered the United States, may apply for the waiver while still in the United States and wait for approval here. Once the visa is approved, they may then return to their home country. Rather than being separated from their loved ones for 3 or more years, waiting for the waiver to be approved in the U.S. enables the foreign national to return to their home country for approval at the U.S. Embassy abroad, with the hope of only being away from their United States family for two or three weeks.
There is a high level of subjectivity involved in the government’s deciding which I-601 waiver applications are approved and which are rejected. Before this, you should be sure to consult with an immigration attorney to discuss your individual circumstances before deciding whether you should apply for this type of waiver.
Winograd and Schwartz Attorneys at Law, PC
Tel. (201) 770-9990