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AAO Approves Extreme Hardship Waiver

An appeal of an extreme hardship waiver application was approved by the Administrative Appeals Office (AAO) after it was initially denied by the Field Office Director due to the applicant’s failure to demonstrate that his spouse would experience extreme hardship given his inadmissibility. The applicant, a citizen of the Gambia, was found to be inadmissable to the U.S. for having obtained a non-immigrant tourist visa through misrepresentation. On his nonimmigrant visa application, the applicant indicated that he was currently married and living with his spouse. Later, however, he admitted that though he was married, he and his wife had been legally separated for nearly 3 years with his wife living in Great Britain. By stating that he was married and living with his wife, the applicant led the embassy to believe that he had close family ties to his home country, showing that he had intentions to return once his visa expired, which resulted in the issuance of a tourist visa.

Because the applicant was found to be inadmissable, the burden fell on him to establish that a grant of a waiver of inadmissability was warranted. To do so, the applicant was required to show substantial evidence that his U.S. citizen spouse would suffer extreme hardship if the applicant’s waiver request was denied and he was deported. Such evidence included claims that the U.S. citizen spouse would experience medical, psychological, and financial difficulties without the applicant present. The applicant provided a record that contained consistent evidence indicating the spouse has suffered from traumatic events in her childhood, such as sexual abuse, physical injuries, neglect, and emotional abuse as well as evidence of the spouse’s abusive first marriage, which have resulted in her psychological reliance on the applicant. The spouse also explained that she had two surgeries and that additional complications may occur in the future. Due to her medical condition, she has a hard time paying for her treatment and infusions and relies on the applicant for financial assistance. The applicant has additionally demonstrated that the spouse would experience extreme hardship upon relocation to the Gambia as that would entail severing her family ties with her children and parents, relinquishing her employment in the U.S., communication issues as English is not widely spoken in the applicant’s village, no knowledge of the Gambian culture, and insufficient educational facilities as well as clinics for her treatments and infusions in the Gambi.

Due to the evidence provided, the AAO established that the extreme hardship that the applicant’s U.S. citizen spouse would suffer outweigh the negative factors, including the applicant’ misrepresentation as well as his period of unlawful status in the U.S. To read more about the AAO approval of this waiver, please [click here].

Hardship Waiver Eases Residency Process for Illegal Immigrants


January 2013 - The Department of Homeland Security announced that U.S. Citizenship and Immigration Services (USCIS) will begin a new process that will allow certain immediate relatives (spouses, children, and parents) of a U.S. citizen to apply for a Provisional Unlawful Presence Waiver, or hardship waiver, without departing the United States. 

Currently, certain immediate relatives must travel and remain abroad, separated from their spouses, parents, and children, while USCIS processes their waiver applications. In some cases, the waiver application processing can be lengthy, prolonging the family’s separation.  Beginning March 4, 2013, however, USCIS will allow the unlawful immigrant to file their hardship waiver while still in the United States before leaving the country to obtain their immigrant visa. If the waiver is approved, applicants will be required to depart the United States and attend the immigrant visa interview at a U.S. consulate abroad. 

In order to qualify for a hardship waiver, you must be physically present in the U.S., are at least 17 years of age at the time of filing, are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen, have an immigrant visa case pending with the U.S. Department of State, believe you are inadmissable based on having accrued a certain period of unlawful presence in the U.S., establish that the refusal of your admission to the U.S. would result in extreme hardship to your U.S. citizen family member, and you meet all other requirements of the provisional unlawful presence waiver. 
USCIS anticipates that this new process will significantly reduce the time that U.S. citizens are separated from their immediate relatives. [Read more on the new Hardship Waiver process].

Frequently Asked Questions (FAQs) on Deferred Action for Undocumented Childhood Arrivals

August 2012 - On June 15, 2012, the Secretary of Homeland Security announced that certain undocumented youth who meet key guidelines may apply for deferred action, allowing them to reside in the US without fear of deportation for a period of two years and would then be eligible for a work permit. On August 15, 2012, USCIS will begin accepting applications for deferred action. In order to be eligible, the individuals must show that they meet the following requirements:

1. You were born after June 15, 1981;
2. You arrived in the U.S. before age 16;
3. You have continuously resided in the U.S. since June 15, 2007 until the present;
4. You were in the U.S. on June 15, 2012;
5. You entered without inspection before June 15, 2012 or your lawful immigration status expired as of June 15, 2012;
6. You are currently in school, graduated from high school, obtained a GED, or you are an honorably discharged veteran of the Coast Guard or U.S. Armed Forces;
7. You are at least 15 years old at the time of filing, never been in removal proceedings, or if your case was terminated before your request; and
8. Have not been convicted of a felony, significant misdemeanor, three or more misdemeanors, and do not otherwise pose a threat to public safety and national security; (you do not need to provide documentation indicating your record, however, if you have been convicted of such crimes, you may not be eligible for deferred action).

The questions and answers explained the in the article discuss the following:

  • What is Deferred Action?
  • What is Deferred Action for Childhood Arrivals?
  • If my removal is deferred pursuant to the consideration of deferred action for childhood arrivals process, am I eligible for employment authorization?
  • Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?
  • Do I accrue unlawful presence if I have a pending request for consideration of deferred action for childhood arrivals?
  • If my case is deferred, am I in lawful status for the period of deferral?
  • Does deferred action provide me with a path to permanent residence status or citizenship?
  • Will my immediate relative or dependents be considered for deferred action for childhood arrivals?
  • Can I be considered for deferred action even if I do not meet the guidelines to be considered for deferred action for childhood arrivals?
  • Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?
  • Does this administration remain committed to comprehensive immigration reform?
  • Is passage of the DREAM Act still necessary in light of the new process?
  • What guidelines must I meet to be considered for deferred action for childhood arrivals?
  • How old must I be in order to be considered for deferred action under this process?
  • Does “currently in school” refer to the date on which the request for consideration of deferred action is filed?
  • Do brief departures from the US interrupt the continuous residence requirement?
  • May I travel outside of the US before USCIS has determined whether to defer action in my case?
  • If my case is deferred pursuant to the consideration of deferred action for childhood arrivals process, will I be able to travel outside of the US?
  • If I have a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors, can I receive an exercise of prosecutorial discretion under this new process?
  • What offenses qualify as a felony?
  • What offenses constitute a significant misdemeanor?
  • What offenses constitute a non-significant misdemeanor?
  • If I have a minor traffic offense, such as driving without a license, will it be considered a non-significant misdemeanor that counts towards the “three or more non-significant misdemeanors” making me unable to receive consideration for an exercise of prosecutorial discretion under this new process?
  • Will offenses criminalized as felonies or misdemeanors by state immigration laws be considered felonies or misdemeanors for purpose of this process?
  • Will DHS consider my expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion?
  • What qualifies as a national security or public safety threat?
  • Can I request consideration of deferred action for childhood arrivals under this process if I am currently in a nonimmigrant status or have temporary Protected Status?
  • How do I request consideration of deferred action for childhood arrivals?
  • Will USCIS conduct a background check when reviewing my request for consideration of deferred action for childhood arrivals?
  • What do background checks involve?
  • If USCIS does not exercise deferred action in my case, will be placed in removal proceedings?
  • Can I obtain a fee waiver or fee exemption for this process?
  • Will there be supervisory review of decisions by USCIS under this process?
  • Can I appeal USCIS’s determination?
  • Can I extend the period of deferred action in my case?
  • If my period of deferred action is extended, will I need to re-apply for an extension of my employment authorization?
  • Will USCIS personnel responsible for reviewing requests for an exercise of prosecutorial discretion under this process receive special training?
  • What documentation may be sufficient to demonstrate that I came to the US before age 16?
  • What documentation may be sufficient to demonstrate that I have resided in the US for at least five years preceding June 15, 2012?
  • What documentation may be sufficient to demonstrate that I was physically present in the US as of June 15, 2012?
  • What documentation may be sufficient to demonstrate that I am currently in school, have graduated from high school, or have obtained a general education development certificate (GED)?
  • What documentation may be sufficient to demonstrate that I am an honorably discharged veteran of the Coast Guard or Armed Forces of the US?
  • May I file affidavits as proof tha ti meet the guidelines for consideration of deferred action for childhood arrivals?
  • Will USCIS consider circumstantial evidence that I have met certain guidelines?
  • Will I be considered to be in unlawful status if I had an application for asylum or cancellation of removal pending before either USCIS or the Executive Office for Immigration Review (EOIR) on June 15, 2012?
  • Can I request consideration of deferred action for childhood arrivals from USCIS if I am in immigration detention under the custody of ICE?
  • If I am about to be removed by ICE and believe that I meet the guidelines for consideration of deferred action for childhood arrivals, what steps should I take to seek review of my case before my removal?
  • If individuals meet the guidelines for consideration of deferred action for childhood arrivals and are encountered by Customs and Border Protection (CBP) or ICE, will they be placed into removal proceedings?
  • If I accepted an offer of administrative closure under the case-by-case review process, can I be considered for deferred action under this process?
  • If I declined an offer of administrative closure under the case-by-case review process, can I be considered for deferred action under this process?
  • If my case was reviewed as part of the case-by-case review process but I was not offered administrative closure, can I be considered for deferred action under this process?
  • How will ICE and USCIS handle cases involving individuals who do not satisfy the guidelines of this process but believe they may warrant an exercise of prosecutorial discretion under the June 2011 Prosecutorial Discretion Momoranda?
  • What should I do if I meet the guidelines of this process and have been issued an ICE detainer following an arrest by a state or local law enforcement officer?
  • Someone told me if I pay them a fee, they can expedite my deferred action for childhood arrivals request, is this true?
  • What steps will USCIS and ICE take if I engage in fraud through the new process? 

 

How do I Apply for Deferred Action?

August 2012 - Beginning August 15, 2012, USCIS will accept applications for consideration of deferred action through a form. A separate form will be required for consideration of a work permit along with a total fee of $465.  In order to be considered, you must show evidence that you meet the following requirements:

1. You were born after June 15, 1981;
2. You arrived in the U.S. before age 16;
3. You have continuously resided in the U.S. since June 15, 2007 until the present;
4. You were in the U.S. on June 15, 2012;
5. You entered without inspection before June 15, 2012 or your lawful immigration status expired as of June 15, 2012;
6. You are currently in school, graduated from high school, obtained a GED, or you are an honorably discharged veteran of the Coast Guard or U.S. Armed Forces; 
7. You are at least 15 years old at the time of filing, never been in removal proceedings, or if your case was terminated before your request; and
8. Have not been convicted of a felony, significant misdemeanor, three or more misdemeanors, and do not otherwise pose a threat to public safety and national security; (you do not need to provide documentation indicating your record, however, if you have been convicted of such crimes, you may not be eligible for deferred action).

You must undergo a background check before USCIS will make its decision to approve or deny your application. USCIS may request more information, evidence, or your appearance at a USCIS office. Please note, you may reuest consideration for an extension of the two year period o deferred action and work permit.  

This process applies to any individual who can demonstrate that he or she meets the above guidelines for consideration, including those who have never been in removal proceedings, those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). The information provided in this request will be protected form disclosure to ICE and CBP for the purpose of deportation unless the requestor meets the criteria for deportations. Individuals whose cases are approved will not be referred to ICE. Their information may be shared with national security and law enforcement agencies for purposes other than removal. [Read the Full Article on the Application Process]

Eligibility Requirements for Childhood Arrivals


August 2012 - On August 15, 2012, USCIS will begin accepting applications for deferred action for undocumented youth for a period of two years and may be eligible for work authorization. If you meet the requirements below, you may be considered for deferred action:
 
1. Arrived in the U.S. prior to your 16th birthday;
2. Have continuously lived in the US since June 15, 2007 until the present;
3. You were under the age of 31 as of June 15, 2012;
4. You entered the US before June 15, 2012 or your lawful immigration status expired as of June 15, 2012;
5. You are currently in school, have graduated or obtained your GED, or you are an honorably discharged veteran of the U.S. Coast Guard or Armed Forces;
6. You have not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, or do not otherwise pose a threat; and
7. You were present in the U.S. on June 15, 2012 and at the time of making your request for consideration of deferred action with the USCIS. [Read the Guidelines]
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