Guiding Mexican National from Removal Proceedings to Immigrant Visa (Removal Proceedings -> I-130 -> Voluntary Departure -> Immigrant Visa Processing -> I-601)

Our client, a Mexican national, was just recently approved by USCIS for a I-601 waiver based on hardship to his USC spouse. Our client is now awaiting the issuance of his immigrant visa through the U.S. Consulate in Ciudad Juarez, Mexico and upon issuance, will be able to return to the U.S. as a permanent resident and be able to support his family and be a productive member of society.

As background, our client had entered the US in the 1990’s without authorization and had been in the U.S. since then. A few years ago, he was encountered by U.S. Border Patrol and subsequently placed into removal proceedings. At that time, he was already in a relationship with his USC spouse and the couple decided to move ahead their plans and go ahead and get married so that our client would have a legal avenue to pursue permanent resident status. After the couple was married, we helped them file a Form I-130 petition with USCIS, together with a request for a bonafide marriage exemption under INA §245(e)(3). (As background, generally, if a foreign national gets married after removal proceedings have been initiated and is seeking immediate relative status based on that marriage, they must demonstrate by clear and convincing evidence – a notably higher standard - that the marriage is a bonafide marriage and one that was not entered in to for the purpose of evading immigration laws.)

After the I-130 was approved, our firm requested that our client be granted Voluntary Departure from the Immigration Court in Buffalo, New York. In support of our request, we established that our client was an individual of good moral character, that he was deserving of the court’s discretion, was statutorily eligible for such relief, etc. (Our client was not eligible to adjust his status from within the U.S. since he last entered the U.S. unlawfully and was required to complete Immigrant Visa Processing.)

Our client timely departed the U.S. prior to his Voluntary Departure date and subsequently attended his immigrant visa interview at the U.S. Consulate in Ciudad Juarez. During his interview, as expected, he was denied an immigrant visa since he was inadmissible under INA §212(a)(9)(B)(i)(II) [10 Yr Unlawful Presence Bar] and required an immigrant waiver under INA §212(a)(9)(B)(v) to waive his inadmissibility. Our client had triggered the Unlawful Presence Bar when he departed the U.S. for his immigrant visa interview (unfortunately, our client was unable to take advantage of the Provisional Hardship Waiver [Form I-601A] implemented by USCIS in March 2013 since he was required to depart the U.S. prior to that date pursuant to his Voluntary Departure Order).

Following his interview, we filed his immigrant waiver application (Form I-601) with USCIS. In support of the I-601, our firm prepared a detailed legal brief outlining our client’s illegal entry into the US, how he met his USC wife, when they were married and his immigration history; we also discussed the USC wife’s (qualifying relative) background - we explained her childhood, catalyst events in her childhood that led to her declining mental health issues and her depression and how her health had substantially improved as a result of our client’s emotional support and love. We were able to document her medical diagnosis of Chronic Major Depressive Order, Post Traumatic Stress Disorder and Panic Disorder with Agoraphobia and were able to establish how her declining mental health was directly tied to our client’s immigration situation. We also explained her family ties in the U.S. which would prevent her from accompanying our client abroad to Mexico - she had children from a previous marriage, some of which are adults and some are minors. Her minor children are on SSI due to learning disabilities and there are current court orders that were granted to the child’s biological father placing geographical restrictions on the mother.

Thus, on the legal brief we prepared, we detailed and established the hardships that the USC spouse would face if she were to accompany our client to Mexico and then the extreme hardship she would face if she was to remain in the U.S. without him. We explained how she would be unable to receive the essential mental healthcare and physical healthcare that she required in Mexico, that she would lose her sole source of income which is SSI and healthcare benefits that she is able to receive in the US, and her inability to relocate her minor children because of the current custody visitation order with their biological father. We also explained how the USC spouse and her children would not have the legal ability to reside in Mexico and that there were various financial support documentation that they would be likely unable to provide to obtain such permission. We went on to discuss why she could not remain in the U.S. without her husband and how her mental health had already been declining given our clients immigration situation, and how prone she was to further deterioration given her documented history of depression. We also explained that her older daughter’s life was essentially being placed on hold given that her daughter was now responsible for doing a lot of the translations for the family, driving the family around to various doctor’s appointments and school related issues and generally helping out with the family, which was causing the USC spouse further emotional distress.

We are very happy this I-601 was approved, without an RFE, from USCIS within normal processing times and that our client is now going to be reunited with his family in the near future once his immigrant visa is issued by the U.S. Consulate in Ciudad Juarez.

USCIS Centralizes Filing of Overseas I-601 (and I-212) Filings

USCIS has announced that as of June 4, 2012, foreign nationals filing Form I-601, Application for Waiver of Grounds of Inadmissibility, and Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, in connection with their applications for a immigrant visa, will mail them to a USCIS Lockbox facility for adjudication by the Nebraska Service Center.

From June 4 to October 4 (first six months), for those foreign national applicants Filing I-601’s in Mexico, they will have the option of filing their applications with either the USCIS Lockbox or with the USCIS Ciudad Juarez Field Office.

Foreign nationals should be aware that this change is separate from the provisional hardship waiver that is currently under a comment period. 

Q: How will Unlawful Presence Affect the green card process?

Q:   Dear SRW Border Lawyers,  I am a U.S. citizen born in New York. My husband was born in Guatemala and entered the United States without being inspected in 2001, and has never left the country since that time. We met in 2004 and were married in 2007. We have two children that were born in the U.S., a son, 3, and a daughter, 8. My husband would now like to pursue a green card. How will his illegal entry and lengthy presence in the country without any status affect his chance of getting a green card process?

A:   Thank you for your question. Based on the information you provided in your question, there are several issues that need to be addressed before your husband can proceed with applying for a green card.  While I cannot give you a complete detailed analysis of your options without learning more about your husband’s history, I can provide you with some general information that may be helpful.

First, since your husband last entered the U.S. without being properly inspected, he is ineligible to adjust his status to that of a green card holder from within the U.S. and would require an immigrant visa from a U.S. Consulate in Guatemala.  In order to apply for this immigrant visa, he would need to depart the U.S. and appear for his immigrant visa interview in Guatemala.  Unfortunately, since your husband has lived in the U.S without status for such a long period of time, when he departs the U.S., he would become subject to a (10) ten-year bar unlawful presence bar. The (10) ten-year unlawful presence bar is applied to individuals who have been unlawfully present in the U.S. for a period of one year or more, who then depart the U.S. and are attempting to re-enter the U.S.  Thus, once he leaves the United States, his departure will trigger the bar and he will not be able to enter the country for ten (10) years without a waiver.

In order to overcome the unlawful presence bar, your husband will need an I-601 waiver. The waiver must establish that you and/or your children (all U.S. Citizens) will suffer “extreme hardship” if your husband is not able to reenter the country and/or you and the children were attempt to live with him in Guatemala until his unlawful presence bar expired. Extreme hardship can be demonstrated in many ways; however, evidence of mental health issues resulting from a loved ones inability to enter the U.S., such as depression and anxiety, is particularly effective.  For detailed information about the I-601 waiver process, please visit our I-601 waiver page

As far as the process to file, your husband would submit the I-601 waiver application to overcome his inadmissibility at his immigrant visa interview. The catch, however, is that the waiver is difficult to obtain, and loved ones are often separated for long periods of time while the waiver is adjudicated. Recently, the United States Citizenship and Immigration Service (“USCIS”) proposed a rule that may be applicable in your case, assuming that your husband’s only ground of inadmissibility is unlawful presence.  You may read more about this provisional hardship waiver process currently under consideration by clicking here (please note that this rule is not currently in effect). 

If your husband is denied his immigrant waiver at his immigrant visa interview, there may be little else that could be done in the near future for him to return to the U.S. Therefore, it is imperative that you immediately consult with an experienced immigration attorney to understand your options moving forward, the risks involved, and to discuss the merits of a possible extreme hardship waiver application.

Q: is there a waiver available for unlawful presence?

A: Yes. there are both immigration and nonimmigrant waivers available that, if granted, will allow the applicant to return to the U.S. prior to the expiration of that application bar. The immigrant waiver (Form I-601) is significantly more difficult to obtain and requires proof that a U.S. citizen relative will suffer "extreme hardship" if the non-citizen is not allowed to live with him/her in the U.S.