News Update - April 23, 2012

U.S.C.I.S. Draft Form Instructions for New I-601A Waiver Application to be Processed in the U.S.

As readers are aware, the Obama Administration's best hope to date for significant immigration relief to a class of individuals moved forward with U.S.C.I.S.'s March 30, 2012, notice of proposed rulemaking under which immediate relatives of U.S. citizens would be allowed to apply for and receive provisional waivers of the 3 or 10 year bars (for entering and staying in the country illegally for 180 days or one year respectively) in the U.S. before deciding whether to attend green card interviews with overseas U.S. consulates or embassies.  (See our article, "I-601A provisional waiver for EWI's in U.S. positively moving forward" at http://www.alanleelaw.com/english/News/News2012-04-03.html ).  U.S.C.I.S. also set forth a draft application form, I-601A Application for Provisional Unlawful Presence Waiver, designed to move the process forward.  The crux of the waiver application will be the determination of extreme hardship to a qualifying relative who can either be a U.S. citizen spouse or parent.  The qualifying relative does not necessarily have to be the petitioner.  The following is an excerpt from the instructions for the draft I-601A Form detailing the necessary evidence for extreme hardship:

Extreme Hardship
You may submit any evidence to support the claim that your U.S. citizen spouse or parent would experience extreme hardship if you were refused admission to the United States.
 
Factors USCIS considers when determining extreme hardship include, but are not limited to:

1. Health - For example: Ongoing or specialized treatment required for a physical or mental condition; availability and quality of such treatment in the foreign country; anticipated duration of the treatment; chronic vs. acute or long- vs. short-term.
2. Financial Considerations – For example: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children with special needs; cost of care for family members (elderly and sick parents).
3. Education - For example: Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time or grade; availability of special requirements, such as training programs or internships in specific fields.
4. Personal Considerations - For example: Close relatives in the United States and country of birth or citizenship; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
5. Special Factors – For example: Close relatives in the United States and country of birth or citizenship; physical harm, or injury; social ostracism or stigma; access (or lack of access) to social institutions or structures (official or unofficial) for support, guidance, or protection.

Evidence of extreme hardship may include, but is not limited to:

1. Affidavits from the qualifying relative or other individuals with personal knowledge of the claimed hardships;
2. Expert opinions;
3. Evidence of employment or business ties, such as payroll records or tax statements;
4. Evidence of monthly expenditures such as mortgage, rental agreement, bills and invoices, etc.;
5. Other financial records supporting any claimed financial hardships;
6. Medical documentation and/or evaluations by medical professionals supporting any claimed medical hardships;
7. Records of membership in community organizations, volunteer confirmation, and evidence of cultural affiliations;
8. Birth/marriage/adoption certificates supporting any claimed family ties;
9. Country condition reports; and
10. Any other evidence you believe supports the claimed hardships.

NOTE: USCIS will only consider hardship to a U.S. citizen spouse or parent. If you describe hardship to yourself or anyone other than a U.S. citizen spouse or parent, you must show how this hardship will cause extreme hardship to your U.S. citizen spouse or parent or that evidence will not be considered.

Submission of the waiver application requires approval of the I-130 petition for alien relative and proof of payment of the fee receipt of the forwarded petition by the National Visa Center.  As this is a program which is almost certain to happen, eligible readers are encouraged to begin the I-130 process at this time if they have not already done so.

† The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory, registered in the Bar Register of Preeminent Lawyers, and on the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

‡ This article © 2012 Alan Lee, Esq.

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.