Hardship waiver rule change benefits "mixed status" families

March 27, 2013

Hardship waiver rule change benefits "mixed status" families

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At the beginning of March, the United States Citizenship and Immigration Department began accepting provisional unlawful presence waiver applications. The new process will reduce waiting times for those with family-based immigration petitions, who have unlawful presence in the country.

The new rule will allow some undocumented immigrants who are the immediate relatives of an U.S. citizen to apply for a hardship waiver from the three- or 10-year bar for unlawful presence while remaining in the United States.

The past waiver process required an undocumented immigrant to return to his or her home country to seek a hardship waiver at the consulate before obtaining a green card through a U.S. citizen relative petition. The waiting time away from families who were in the United States was uncertain. If the consulate denied the waiver, then the wait extended years rather than months, so it was a risky situation.
How this affects one Californian family?

For one family the new rule means that they will finally seek a green card through a spousal petition. The wife is a U.S. citizen, but her husband is originally from Mexico and has been undocumented for many years. They have been married for six years and worried about the hardship waiver process. The husband is the sole caretaker for his adopted son, who suffers from cerebral palsy, seizures and mild Down syndrome.

For Mexican immigrants, seeking a hardship waiver used to mean going to Ciudad Juarez and waiting for months to complete the waiver application process. For the family, the risks were too great and time apart unknown.

Now that the husband can apply for the hardship waiver while in the Unites States, the couple plans to move forward and seek an adjustment of his immigration status.
Who is eligible?

To apply for the provisional waiver, you must have an immediate relative who is a U.S. citizen. A spouse or parent is an immediate relative, for example. The waiver is only for those with unlawful presence. If you have a certain past criminal convictions or charges you may not take advantage of the new process.

If you have been in the country unlawfully for any amount of time, but have a U.S. citizen spouse or parent, a consultation with an experienced immigration attorney is important. Hardship waivers must be supported by proper evidence and the Attorney General does not grant all waiver requests. The assistance of an attorney is one way to make sure you submit the needed documents and follow all the proper steps.