Extreme Hardship

Extreme hardship is legal standard for 601 and 212 waiver and refers to,  as the term indicates, abnormal situations. “Extreme hardship” is very vaguely defined as greater than the normal hardship the qualifying relative can be expected to experience if the alien is denied admission. It is important to prove both why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the US without the alien. For instance, It is not enough to say that the qualifying relative will miss the alien’s company as this is considered “normal” hardship, not extreme hardship.

BIA eventually identified five general groups of factors to be taking into account by any reasonable adjudicator making extreme hardship determination. Based on precedent cases, major medical condition of US relative, such as brain tumor, multiple sclerosis, cerebral palsy, or elderly, chronically ill, or disabled US relative makes strong arguments. Others don’t. 

It can’t be stressed enough that it is insufficient to prove that Relative has elderly or sick relatives. You must show the link between the medical condition and the waiver, i.e. you must prove that the elderly or sick person needs the qualifying Relative to remain in the US and, preferably, that the Alien is also needed in the US.

Unlawful Presence and Out of Status

A person begins to accrue unlawful presence in the US if a person remains in the US after his or her I-94 card expires. 

A person is out of status because they haven't maintained the terms of their status. a person can fall out of status if they stop working for the employer who sponsored them for an H-1B.

Unlawful Presence does not necessarily start to a accrue the day a person falls out of status. Those entrants who do not have a date on their I-94, but are instead admitted for the duration of status (primarily students) do not accrue unlawful presence until the USCIS rules that they have fell out of status. 

There are some exceptions to unlawful presence. Consult your attorney to see if you are out of status or have accrued unlawful presence and other legal strategies.  

Unlawful Presence

There are 10 basic grounds of inadmissibility.  These are:

• Health related grounds;
• Criminal grounds;
• Security grounds;
• Public charge grounds;
• Labor certifications;
• Undocumented entry and immigration status violations;
• Documentation requirements;
• Ineligibility for citizenship;
• Previous removal or unlawful presence; and
• Miscellaneous

Since the new law is solely concerning unlawful presence, this article discusses definition of unlawful presence. 

Section 212(a)(9)(B)(ii) of the Immigration and Nationality Act defines unlawful presence as presence “in the United States after the expiration of the period of stay authorized by the Attorney General or [presence] in the United States without being admitted or paroled.  The USCIS has not issued regulations to further define the concept, providing only memoranda on the issue, essentially saying that a person begins accruing unlawful presence when they remain in the US past the expiration date of their I-94.  

Unlawful Presence

There are 10 basic grounds of inadmissibility.  These are:

• Health related grounds;
• Criminal grounds;
• Security grounds;
• Public charge grounds;
• Labor certifications;
• Undocumented entry and immigration status violations;
• Documentation requirements;
• Ineligibility for citizenship;
• Previous removal or unlawful presence; and
• Miscellaneous

Since the new law is solely concerning unlawful presence, this article discusses definition of unlawful presence. 

Section 212(a)(9)(B)(ii) of the Immigration and Nationality Act defines unlawful presence as presence “in the United States after the expiration of the period of stay authorized by the Attorney General or [presence] in the United States without being admitted or paroled.  The USCIS has not issued regulations to further define the concept, providing only memoranda on the issue, essentially saying that a person begins accruing unlawful presence when they remain in the US past the expiration date of their I-94.  

Provisional Waiver--新的豁免申请程序

移民法改革是每届选举的热门话题。 最近政府又出新招。 许多人纷纷打电话到本律师事务所打听。 许多以为新法提供了新的移民途径。 到底是不是这样的呢？

我们先来看看新法律怎么说。  新法律说， 美国公民的直系亲属，如果只是因为非法逗留而被法律归为禁止入境的， 可以向USCIS 申请禁止入境豁免， 然后再回到母国所在地的美国领事馆申请移民签证。 

这意味着什么呢？ 原来的法律呢， 要求非法逗留的美国公民的直系亲属回到母国所在地的美国领事馆申请移民签证。 当母国的美国领事馆的官员认定申请人是被禁止入境的一类人， 一或要求申请人等待3－10年， 二或向申请人收集资料， 向移民局申请豁免。 整个等待时间不用说非常长。 新法律改动的其实是法律程序。 

值得注意的是，法律程序的改动并没有改动法律的实质内容。比如， 要获得豁免， 要证明申请人的美国公民亲属将处于极其艰难的处境。 这个标准的难度没有改变。 申请人还是最好请律师帮忙。

What is New Waiver Process

Under current law, immediate relatives of U.S. citizens who have accrued more than six months of unlawful presence while in the United States are not eligible to adjust status in the United States to become lawful permanent residents. Instead, they must leave the U.S. and obtain an immigrant visa abroad. They must also obtain a waiver after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible. The process takes a long time. 

Under the final rule, an immediate relative of a US citizen who are inadmissible only on account of unlawful presence may obtain a provisional unlawful presence waiver if they may demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. 

The new provisional waiver process does not exempt immediate relatives from departing the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives.