Have you been ordered removed and reentered the U.S. without inspection? Read this blog and contact San Diego Immigration Lawyer, Omid Rejali, Esq. for a free evaluation of your case.
Under INA §212(a)(9)(A)(i) Persons who have been ordered removed (through expedited removal or through removal proceedings initiated at the time of the person’s arrival in U.S.) after April, 1, 1997, and who seek admission within 5 years (or 20 years if second or subsequent removal, or at anytime if convicted of an aggravated felony) are inadmissible, unless prior admission has been granted to them.
A person who is barred from admission under INA §212(a)(9)(A) may apply for readmission prior to the period of inadmissibility by seeking a waiver. A waiver is a formal request from U.S. government officials for “forgiveness.” There are many different types of waivers. In this blog we will be focusing on what the United States Citizenship And Immigration Services (USCIS) refers to as “hardship waivers.”
If a person is an immigrant and the spouse or son or daughter of a USC or LPR (Legal Permanent Resident/Green Card Holder) and he or she can show extreme hardship to the spouse or parent (but not his or her children), inadmissibility can be waived.
The Board of Immigration Appeals in the matter of Cervantes-Gonzales, 22 I&N Dec. 560, 565-66 (BIA 1999) stated that some of the factors considered for an extreme hardship include: 1) presence of LPR/USC family ties in the U.S.; 2) the qualifying USC/LPR’s family ties outside the U.S.; 3) conditions in the country of relocation and qualifying relative ties there; 4) the financial impact of departure; 5) significant health conditions particularly when tied to unavailability of suitable medical care in the country of relocation. Although hardship to a child may not be considered directly, a child’s medical condition is considered a hardship to the USC/LPR spouse. Generally, family separation may be the single most important factor in considering a waiver.
An applicant for a hardship waiver would have to demonstrate extreme hardship in two scenarios. First, if the USC/LPR spouse or parent remains in the U.S. or second, if the USC/LPR spouse or parent has to accompany the applicant to the applicant’s home country. Even when “extreme hardship” has been found the USCIS (United States Citizenship and Immigration Services) must still engage in a balancing test to determine whether the waiver should be granted following the balancing of adverse and positive factors as set out in the Cervantes case stated above.
Waivers of inadmissibility require careful preparation. Having an experienced San Diego Immigration Lawyer increases your chances of having the waiver approved. If you or a family member has been removed from the U.S. and entered illegally and is contemplating on adjusting their status through a family member or marriage contact us for your FREE consultation.