What are the legal requirements?
Section 212(a)(9)(B)(v) of the Immigration and Nationality Act waives the "unlawful presence" and "misrepresentation" grounds of inadmissibility for foreign nationals who have a U.S. citizen or lawful permanent resident spouse or parent. A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).
The foreign national must demonstrate that his/her U.S. citizen or lawful permanent resident spouse or parent would suffer "extreme hardship" if the foreign national is not allowed to return to the United States.
The foreign national should also demonstrate that the U.S. citizen or lawful permanent resident spouse or parent would suffer "extreme hardship" if he/she is forced to leave the U.S. and move abroad to reside with the foreign spouse.
The foreign national must demonstrate that his or her qualifying relative (the U.S. citizen or lawful permanent spouse or parent) would suffer extreme hardship if the applicant is not allowed to return to the U.S. Hardship to the foreign national is only considered to the extent that it is a source of hardship to the U.S. citizen or lawful permanent spouse or parent.
Consular officers will generally consider the following factors in determining whether extreme hardship has been met in any individual case:
1. Health of the qualifying relative – Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national's country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.
2. Financial considerations – Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children; cost of caring for family members (i.e., elderly and infirm parents).
3. Education – Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time in grade; availability of special requirements, such as training programs or internships in specific fields.
4. Personal considerations – Close relatives in the United States and/or the foreign national's country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
5. Special considerations – Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
6. Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.
Spouses must thus demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.
Applicants must submit the USCIS application; a thorough and persuasively-written extreme hardship statement; personal affidavits; and a comprehensive array of supporting documents to convince the consular officer that they will suffer more than the average person in the same situation. The Law Offices of Michael S. Cho has in-depth experience in this niche area of immigration law and has successfully represented spouses throughout the United States.
USCIS Update as of June 4, 2012
As of June 4, 2012, foreign spouses who are already abroad, have applied for immigrant, K, or V visas, and have been found ineligible by a U.S. Consular Officer, can mail their I-601 and I-212 waiver applications directly to a U.S. Citizenship and Immigration Services (USCIS) Lockbox facility in the United States.
The I-601A provisional waiver allows certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative “extreme hardship”.
This would mean that the “risk” of going abroad to process for the immigrant visa is significantly reduced since a provisional waiver approval has already been received before the applicant departs the United States.