Hardship waivers are applications to Immigration authorities (USCIS) that, if granted, will excuse certain bars of inadmissibility relevant for adjustment of status; or excuse a two year residency requirement for holders of certain J-1 visas. A hardship waiver can be used for those who entered the US illegally (EWI), those who committed misrepresentation at the time of entry (used someone else’s passport), those who stayed in the county illegally for more than 180/360 days and left the country; those with criminal convictions; and those with 2 year residency requirement.
To qualify for a hardship waiver, an applicant must have a US citizen or permanent resident spouse or parent; sometimes a daughter or a son or even a fiancé, depending on the facts of a particular case. For the new provisional waiver ( I-601A waiver), a qualifying relative who will experience extreme hardship must be a US citizen. Read more on PROVISIONAL WAIVER: Who Can Benefit From Provisional Waiver and Provisional Waiver Help For New York Families
What Needs To Be Shown For The Waiver To Be Approved?
The key to a successful hardship waiver application, is applicant’s ability to demonstrate that the qualifying relative will face hardship beyond one ordinarily experienced due to separation in case the applicant is removed from the US. Usually, a successful waiver application involves demonstration of a serious medical conditions suffering by a qualifying relative; financial hardship: inability to pay off the loan, credit card debts, bills, etc.; it is also a demonstration that couple’s children will have hard time adjusting the country where the applicant will be removed; lack of educational, medical and financial resources in the applicant’s home country.
What documents need to be submitted with a successful waiver application?
The waiver is filed on the form I-601. The provisional waiver is filed on the form I-601A. Together with the form and documents enlisted in the instructions, the applicant shall submit proof of hardship.
The most important documents include:
affidavits by the applicant, qualifying relative, family members and friends;
reports by psychiatrist as to the qualifying relative mental state and hardship he/she is going through;
country conditions reports on the country of potential removal;
other evidence showing the inability of the family to be separated without extreme hardship.
FAQ about Hardship Waiver/ I-601A Provisional Waiver
How long is the wait time?
The wait time for the waiver varies, and might be from 6 month to a year, sometimes even longer. It all depends on what application is filed, what bar of inadmissibility an applicant is asking to waive; the sped the adjudicator is working with, and the appeal process, if any.
What to do if the waiver is denied?
If the application is denied, the applicant should file a motion to re-open or an appeal, depending on the facts. Very often the AAO office (Office of Administrative Appeals) reverse the initial ruling. Although there is no appeal for denial of I601A provisional waiver, the waiver package may be resubmitted.
What happens if the waiver is approved?
When the waiver is approved, the applicant’s way to the benefit he/she is seeking becomes clear. It means the applicant can receive a green card, and/or remain the country.
Do I need a lawyer to file for hardship waiver/provisional waiver?
While none of the immigration forms requires assistance or signature of an attorney, a good waiver application shall be prepared by an attorney. There are many legal details that a non-lawyer can omit or misunderstand. Example, some representatives advise their clients to state that they came EWI rather than using someone else’s passport (non US citizen passport). While there is a waiver for both of the bars of inadmissibility, a waiver for EWI if granted, will require the client to leave the country and apply for an immigrant visa overseas. A waiver for misrepresenting the material information (fraud waiver), if granted will allow the client to adjust without leaving the county. Now, the misrepresentation or fraud at the time of entry threatens with the permanent bar, but the standard of acquiring the both waivers is substantially the same: hardship to the family member. If the EWI waiver not granted, the person is still inadmissible. So, why lie second time around? All these factors must be taken into consideration before submitting the documents.
How much does it cost to file a waiver?
The government fees for form I-601 or I-601A can be found at www.uscis.gov. The attorney fees vary depending on particular case. A good hardship waiver will require an attorney to work at least for 30 hours, so the price shall be determined accordingly.
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