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Waivers Exist for Unlawful Presence in the US, Certain Crimes, Misrepresentation, a Previous Deportation |
In March 2007, the USCIS Ciudad Juarez Office, in conjunction with the US State Department implemented a new pilot program to provide same day adjudication of many I-601 Waivers of Excludability. For intending immigrants that require consular immigrant visa processing and have also been found inadmissible by a consular officer, they are often allowed to file a waiver to overcome various immigration and criminal violations, and health related inadmissibilities. In the past, applicants had to wait over 6 months and sometimes over a year to get a decision on their waiver application. This meant that they would be separated from their families for at least that amount of time. Warren Janssen, the Officer-in-Charge of the USCIS Ciudad Juarez office stated, "this ground making pilot program makes sense and ensures that qualifying immigrants return to their families without unnecessary delays. Those applicants that file a well prepared I-601 and who otherwise do not have any serious adverse issues to be addressed will, in many cases, be approved and be able to receive their visas on the same day."
This pilot program has now become permanent, Warren Janssen stated on August 18, 2009. Although the same day adjudication goal has disappeared, a two-month waiting period is often all that is required. This program is something that a person living in the United States illegally should seriously explore as a viable option to change your life for the better.
Are you married to a U.S. Citizen and think you are not eligible to become a Lawful Permanent Resident because you entered without permission? It is possible that you are eligible for a waiver.
HERE IS AN EXAMPLE: Maria is a US citizen and she is married to Carlos. He is from Mexico and entered the United States without inspection (without a visa) 4 years ago. Carlos wants to obtain his residency through his marriage with Maria and he wants to know what their options are.
Carlos and Maria have two options.
The first is to submit the visa petition with immigration then wait. Since section 245(i) does not currently exist, Carlos can not adjust his immigration status to that of a lawful permanent resident without leaving the country. He is not allowed to legally work. In the meantime, they can join organizations that are working to restore section 245(i) or other comprehensive immigration law reform.
His second option is to leave the country and have his permanent residency interview at the Consulate. When Carlos leaves the United States he will be subject to the 10 year bar because he has been living here without proper documentation. However, since he is married to Maria he is eligible to ask for a waiver. He will need to prove that Maria will suffer “extreme hardship” if he is not granted a waiver. Maria will need to complete the visa petition and designate the Consulate in Ciudad Juarez for permanent residency interview. Now, in 2009, for cases presented at the Consulate in Ciudad Juarez, 50-60% of the waiver petitions are being approved by US Immigration Services.
After the Petition has been filed, Carlos will be scheduled for a visa interview in Juarez. It takes up to a year after filing the Petition to obtaining an interview. He will at that time make plans to depart the U.S. to go to that interview. Carlos will need to take his completed waiver request to his immigrant visa interview at the Consulate along with all other forms and documents for his application for lawful permanent resident.
At the interview, the officer will inform him he is eligible to complete a waiver application. Using the Telephone Call Center, Carlos will schedule a waiver appointment with USCIS after his visa interview, to submit his waiver (From the U.S. 900-476-1212; From Mexico 01-900-849-4949). As of November 2009, the waiver appointments are being scheduled 8 weeks after the IV interview. Then he will wait in Mexico until Immigration Services gives him a decision. If his case is “clearly approvable” this may only take a few days. After receiving notification that his waiver petition has been approved (via DHL in Juarez), Carlos may immediately return to the United States as a Lawful Permanent Resident.
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More information about the process: The waiver applicant will need to demonstrate that his or her United States Citizen or Permanent Resident spouse or parent would suffer "extreme hardship" should the applicant not return to the US. See below for the general factors of hardship. All required security checks would be made and reviewed before approving the waiver and issuance of the immigrant visa.
A USCIS Adjudications Officer will review the waiver and supporting documentation at the time the waiver applicant files it with the US Consulate. The officer may at his or her discretion approve the waiver at that time or it may be “referred” for further review and final adjudication. Approved waiver applicants will normally be issued their immigrant visa within the next 4 business days depending on US Consulate workloads and schedules.
The 40 to 50 percent of the applicants who are not found to have a “clearly approvable” waiver are not denied but are rather referred to the pre-existing adjudication process queue. According to USCIS, most of these applicants did not submit sufficient evidence to merit a favorable decision. Others may have criminal or prior deportation issues. Rather than being formally denied, their application is added to the current backlog of thousands of pending cases and will be reviewed later. The CDJ office is currently adjudicating referred waivers submitted in July 2008, meaning that the waiting time for a decision with those files is now over one year. Waiver applicants who are referred to the backlog are encouraged to supplement their file with additional proof of hardship. Although the referral letter indicates that they have 30 days to submit more supporting documentation, they can actually submit it at any time up to the date of adjudication.
USCIS has taken steps to eliminate the current I-601 waiver backlog by providing the Ciudad Juarez field office with additional resources, and by setting up satellite adjudication offices in Mexico City and Anaheim, California. It is hoped that this will allow referred cases to be decided in less time. Those immigrants that have pending I-601 waivers with the Cd. Juarez field office will be notified via mail of their decision.
Who can apply for this? The spouse and sons and daughters (married or single) of a US Citizen can submit a waiver petition. If the petition is for a spouse or child who is less than 21 years of age, there is an immediate immigrant visa available.
Only the spouse and unmarried sons or daughters (regardless of age) of a person who is a lawful permanent resident can submit a waiver petition. Their parents, siblings, married sons or daughters, or other family members cannot submit a waiver petition.
The applicant must demonstrate that refusal of his or her admission would result in "extreme hardship" to a qualifying relative. The burden of proving such hardship rests with the applicant and is shown by submission of documentary evidence to USCIS. What is "extreme hardship" is a difficult concept but guidance has been given in case law. In various decisions the courts have set out some of the factors that USCIS should consider in determining whether an applicant has established extreme hardship sufficient to qualify for a waiver. Those factors include, but are not limited to:
1. The qualifying relative's family ties both inside and outside the United States,
2. The conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative's ties to such countries,
3. The financial impact of departure from this country,
4. Conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.
Los problemas severos o dificultades extremas pueden ser demostradas de diferentes maneras en la vida de su cónyuge, como pueden ser:
SALUD- Estar bajo tratamiento especializado por cuestiones físicas o condiciones mentales; disponibilidad y calidad de dicho tratamiento en su País, conocimiento de la duración del tratamiento; por ser ésta una enfermedad crónica o aguda, ya sea larga o de corta duración.
CONSIDERACIONES FINANCIERAS ¿ capacidad de empleo a futuro, perdida del empleo por la venta de la casa o negocio o termino de su practica profesional; declinar el estándar de vida; habilidad de recuperar pérdidas a corto plazo; costo de necesidades indispensables como son educación especial o terapias para niños enfermos; costo para el cuidado de miembros de la familia (ejemplo: los padres ancianos y enfermos).
EDUCACIÓN ¿ Pérdida de la oportunidad para una educación más avanzada, baja calidad u opciones limitadas de escolaridad; interrupción del programa actual; requisitos para recibir una educación en otro idíoma o cultura con pérdida de tiempo y grado; disponibilidad de requisitos especiales, como son programas de entrenamiento o intercambio de internados en campos especializados.
CONSIDERACIONES PERSONALES ¿ Familiares cercanos en los Estados Unidos y/o su país; separación de la esposa/hijos; edades de los hijos de las partes interesadas; tiempo radicando dentro de Estados Unidos y los lazos existentes dentro de una comunidad.
FACTORES ESPECIALES- Culturales, de lenguaje, religiosos y obstáculos étnicos, temor a persecuciones justificables, daño físico, o accidental; ostracismo o estigma social; acceso a instituciones sociales o estructurales.
Cualquier otra situación que Ud. crea que le puede ayudar a cumplir con las especificaciones de los severos problemas o dificultades extremas.
Por favor explique con detalle cual sería, en su caso muy particular, un severo problema o una dificultad extrema. Tenga en mente que los problemas severos o las dificultades extremas deberán ser para el miembro de familia que califica como tal, no para Ud.
Waivers of Excludability are appropriate for: Foreign nationals who are ineligible to enter the U.S. or foreign nationals who reside in the U.S. currently but entered without a visa or have other issues that prevent them from adjusting their status.
A waiver package is so important to you and your family and to maximize your chance for success it must be prepared meticulously and carefully, and include evidence of everything about your family and your life that is beneficial to your case. We suggest that you seriously consider hiring an attorney for this very important matter.
Our service includes: 1. A full review of your personal circumstances;
2. Confirmation that the waiver is appropriate for you; some are not eligible and this is very important to know;
3. Accurate preparation of your petition and visa application;
4. Submittal of your visa application, fees, affidavits of support, to the appropriate government agencies;
5. Meetings with you to provide instructions to you and your family members for collecting the information and documents needed to support your case;
6. Preparation and collection of all required documentation for exhibits;
7. Extensive attorney brief outlining your case and applying the law to your facts;
8. Advice on how to handle yourself at your Consular and USCIS interview, and what to expect.
We welcome you to
contact our office by email or call 1-866-675-5197. Free consultations are available and we will be happy to discuss your situation and whether this process is appropriate for you. We represent clients throughout the United States, and worldwide.