Tomakin: Waiver based on extreme hardship

Tuesday, July 19, 2011

IN MAY 2004, Carlos arrived in the US on a tourist visa and was given six months to stay. After six months, he felt that his life is better off here in the US than what he has in the Philippines. He went on to stay in California with his family even after his authorized stay was up.

However in January 2008, tragedy struck. His wife died in Manila after she was hit by a stray bullet during the New Year's Eve celebrations. Carlos immediately went back to the Philippines to bury his deceased wife and to take care of their children.

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In 2010, Carlos met Jane, a US citizen who came home to the Philippines for a class reunion. Jane was also a widow who lost her husband after a long bout of lung cancer. After spending some time together and frequent communication, Carlos and Jane discovered that they both love each other. Soon thereafter, they were engaged and later got married in the Philippines.

A spousal petition was filed by Jane in order for Carlos to join her in California. Her petition was approved, but when he was interviewed by the consular officer in Manila, Carlos' immigrant visa application was denied because of a prior overstay. As he overstayed for more than one year, Carlos is barred from entering the US for 10 years, unless he files for a waiver based on Jane's extreme hardship.

So what is this waiver based on extreme hardship? Is it just a mere filing of a form and expect that the consular officer would approve it right away?

First of all, there are several cases in which a person is barred from entering the US. This is called inadmissibility. One of the most common cases of inadmissibility is in legal terms - unlawful presence. For purposes of simplicity, let's call it overstay. A person who overstayed in the US more than the date given to him by the immigration officer the first time he set foot in the US and without filing an application for extension, is subject to a 3- or 10-year bar. If he overstayed for more than 180 days, he is not allowed to come back for three years. If he overstayed for more than one year, he is barred from entering back the US for 10 years.

This 3- or 10-year bar can be remedied in the form of a waiver. By way of analogy, a waiver is like asking for forgiveness from the US government to not apply the 3- or 10-year bar to you based on "extreme hardship of your qualifying relative". Take note of the keywords in the phrase, "extreme hardship of qualifying relative" The keywords are: qualifying relative, extreme hardship.

So who can be considered "qualifying relative"? Any relative would do? No. That is why it is called qualifying because not all relatives "qualify". In cases of unlawful presence, the qualifying relative is either the US citizen or lawful permanent resident spouse or parent or fiancée of the waiver applicant. Thus, there are two criteria in which a relative should qualify - being a US citizen or lawful permanent resident - which means that even if you have a spouse or parent here in the US but on another type of visa, they would not qualify. And the second qualifying criterion is that a relative must be a spouse or parent or fiancée. Sadly, children or siblings or any other relative, even though they are US citizens or green card holders, do not qualify.

And how would you prove extreme hardship to your qualifying relative? Remember, the extreme hardship must be suffered by your relative, not by you, the applicant. Again, the keyword here is extreme. Not just any ordinary hardship or inconvenience. The extreme hardship must be felt by your qualifying relative if you are denied entry to the US. What are the examples of extreme hardship?

1. Health or medical condition - if your qualifying relative is suffering from any illness that warrants specialized and continuing treatments in the US; unavailability of these treatments in the Philippines; whether the condition is chronic or acute; whether there are facilities or medical centers for this kind of medical condition; lack of health insurance;

2. Financial hardship - if your relative would lose her job or properties or business in the US if she joins you in the Philippines; whether she can be employed in the Philippines; loss of other financial opportunities;

3. Family ties in the US or in the Philippines - whether the qualifying relative has family or friends in the Philippines; separation from her own family living in the US; length of separation and residence in the US;

4. Other factors: economic, political and security conditions in the Philippines; difficulty in understanding and adapting to Philippine language, culture, religion, customs; any barriers to practice of own beliefs, fear of own safety and security.

Waiver applications are decided based on how you present the extreme hardship actually or potentially to be suffered by the qualifying relative. The decision by the consular officer is a matter of discretion.

While I have done and have successfully obtained waiver approvals before, every waiver application is unique and difficult on its own. It is a challenging and tedious process. Make sure you put in the best and strongest evidence you have.

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This column is not a substitute for professional legal advice obtained from a US licensed immigration attorney. The information contained herein does not constitute a warranty or guarantee or legal advice regarding a reader's specific immigration case. No attorney-client relationship is and shall be established with any reader.

For any questions, comments and observations, please contact Atty. Marco Tomakin at mtomakin@gmail.com