Ever since I saw the preview for the movie “The Curious Case of Benjamin Button,” I have been pondering its tagline: “Love Knows No Boundaries.” As an immigration lawyer, I have unique insight into this phrase. It often happens that a potential client will walk into your office for a consultation, and, from context clues, it becomes immediately apparent what the issue is: The U.S. citizen has fallen in love with someone who has entered the country without inspection. Their love, as they say, knows no boundaries, and they are already married. What they now need to know is how to proceed from an immigration standpoint.

First, here is the good news: A U.S. citizen who has married someone who entered the country without inspection will still gain the benefit of our country’s underlying immigration policy, which is to promote and maintain family unity. The foreign-born spouse is now a part of the citizen spouse’s immediate family, and that is a very important relationship from the vantage point of immigration law. Supposedly, the law will do whatever it can to promote the ideal of family unity. So, what is the problem, you might ask?

There also is a bit of bad news: A foreign-born spouse cannot adjust status within the United States if he/she has had an undocumented entry into the country. Here is where things might get a little complicated. There is an exception to this rule, and that is if the foreign-born spouse has had a visa petition that has been filed before April 30, 2001, then that person has the option of paying a $1,000 penalty in order to be able to adjust his/her status within the United States, even with an illegal entry.1 Many people do not have this option, however, and we must move the discussion to an evaluation of other options; specifically, the prospect of consular processing in the foreign national’s home country.

 Before discussing consular processing, however, it is useful to temper the bad news with more good news: As long as the requirements of a spousal visa petition are fulfilled, then the petition will be approved. This means that the spouse is approved to get the opportunity to interview for a visa at the consulate in his/her home country in a procedure known as consular processing. In general, getting a visa is like getting to wait on the porch to be let in the door of someone’s house. Adjusting the status to permanent resident is analogous to having someone let you in the door. To complete the analogy, naturalizing to become a U.S. citizen is like having the owner of the house let you have one of the rooms to live in. However, consular processing has its own set of rules that don’t fit into this analogy quite so neatly.

An approved visa that results from consular processing means that, after getting the stamp in the passport on the way back into the United States, the spouse is now a permanent resident. However, talking about an approved visa is still a few steps away for the couple that I have described at the beginning of this article. They are still at the stage of trying to obtain a visa. This means inquiring as to whether the visa applicant has been determined to be “inadmissible” based on one or more visa ineligibility categories.2

Although there are many categories of visa ineligibility, the one that often poses the greatest problem for the couple that comes into an immigration law office is known as the three year/ten year bar. An illegal presence/overstaying your visa for more than 180 days leads to a ban on many immigration benefits, including adjustment of status, for a period of three years. Moreover, more than 365 days of illegal presence results in a 10 year ban. However, note that any time accrued before April 1, 1997 does not count.3 The trick is that these bars are not triggered until after one leaves the country. With an illegal entry, though, the foreign-born spouse MUST leave the country in order to obtain the visa (in a procedure known as consular processing, mentioned above). It seems like a Catch-22. You can’t leave the country without triggering the bar, but you need to leave the country in order to obtain the visa. Of course, the story is not over.

What comes into play at this stage is the Application for Waiver of Grounds of Inadmissibility, also known as the I-601 Waiver. This catchy numerical name comes from the name of the form that you have to fill out to apply for the waiver. The law requires that the Qualifying United States Citizen (or Legal Permanent Resident), meaning the citizen/LPR spouse, prove “extreme hardship” to the citizen/LPR if the alien’s spousal visa is not ultimately approved. As a result, the couple would have to relocate permanently to the foreign country. By the way, according to 8 CFR 212.7(a)(1)(i), a U.S. citizen fiancé is a qualifying relative.

“Extreme hardship” is one of those slippery terms that seems intuitive from a common-sense standpoint, but it keeps a lot of immigration lawyers very busy. It is vaguely defined as something greater than the normal hardship that the qualifying relative can be expected to experience if the fiancé/spouse is denied admission.4 Even though there is no clear definition of “extreme hardship,” the mere separation from someone and the normal sadness and stress that accompany the separation are insufficient. In essence, the application must present additional factors that rise to the level of extreme hardship. At some consulates abroad, it is also necessary to prove both why the U.S. citizen cannot move abroad and why the U.S. citizen cannot simply live in the United States without the foreign spouse. Most waiver packets, though, emphasize one view over the other. Once again, it takes a lawyer to know what and how much needs to be said.

The next obvious question is: How should the case for “extreme hardship” be prepared? The U.S. citizen needs to write a clear and detailed letter explaining each situation and circumstance that will cause “extreme hardship.” It is not enough to say that the U.S. citizen will feel sad or miss the spouse because this is just “normal” hardship. The details provided in the letter as well as the evidence/documentation are the key components in the overall waiver process.

The best way to approach the hardship letter and evidence is for the U.S. citizen to think about every aspect of how his/her life would change if there was the necessity of relocating permanently to the spouse’s home country. These kinds of things form the basis of the hardship letter. Again, each of these arguments must be supported with evidence or documentation. Note that some consulates require a letter from the visa applicant in addition to the letter from the U.S. citizen. It is always best to consult with an attorney about whether this is necessary.

Extreme hardship can be demonstrated in many ways, including:

1. HEALTH/MEDICAL - Ongoing or specialized treatment requirements for a physical or mental condition, the availability and quality of such treatment in the spouse’s home country, anticipated duration of the treatment, and whether a condition is chronic or acute, or long- or short-term.
2. FINANCIAL CONSIDERATIONS - Future employability, financial crisis 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 care for family members (i.e., elderly or infirm parents).
3. EDUCATION - Loss of opportunity for higher education, lower quality or limited scope of educational options, disruption of current educational program, requirement to be educated in a foreign language or culture with the accompanying loss of time, and lack of availability of special requirements, such as training programs or internships in specific fields.
4. PERSONAL CONSIDERATIONS - Close relatives in the United States, separation from spouse/children, ages of all involved parties, and length of residence and community ties in the United States.
5. OTHER FACTORS - Cultural, language, religious, and ethnic obstacles. This includes valid fear of persecution, physical harm, or injury, social ostracism, and access to social institutions or structures. (The preceding list is not meant to be exhaustive, nor does it come from any statute or regulation. It was adapted from some suggestions found online at www.familybasedimmigration.com.)

Finally, this is the time to bring up any other situation that may help meet the burden of extreme hardship. Include as much legitimate, detailed evidence as possible. For example, in the discussion of medical conditions of the U.S. citizen, include personal letters from doctors, nurses, therapists, medical records, prescription information, etc. Always try to include information from U.S. government sources such as State Department Reports and information from the National Institutes of Health.

In cases that include some political issues such as safety, persecution, threat of violence, etc. in the spouse’s home country, cite U.S. government sources such as Consular Information Sheets or CIA factsheets. Approach the letter and evidence with the idea that the adjudicator knows nothing about your situation, including medical, financial, safety, education, and employment situations. Be prepared to explain and prove each and every item.

Now for the final stretch. At the visa interview, the consular officer will determine if the applicant is ineligible for a visa, and he/she will determine if the law provides for a waiver. That officer will also determine if the applicant is eligible to seek a waiver. For this reason, waivers cannot be submitted until the interview has taken place and the applicant has been denied. I-601 waivers filed at a consulate are adjudicated by the Citizenship and Immigration Service 601 adjudicator abroad, and the location of that adjudicator is usually very nearby to the place where the visa interview took place (sometimes in the same building).

If you know in advance that a waiver will be required, then to save time it is best to have the waiver completely prepared and ready to submit immediately after the denial at the visa interview. This is where some people get tripped up because they are afraid of going into the visa interview knowing they will be denied. This is all part of the process. Consular officers usually provide the waiver form to the applicant along with the reason for denial and the denial codes written in. Fingerprints need to be taken and the waiver fee needs to be paid before a complete waiver package can be submitted.

After the waiver form, fees, fingerprints and hardship letter/evidence have all been submitted, the spouse still cannot enter the United States. Waiver adjudication is generally slow, and it also varies by consulate. Some consulates, such as London, have an on-line tracking system, while others provide no updates or information until a decision has been made. Once a waiver has been approved, it means the inadmissibility has been “waived” and a visa can now be issued. A date is then set up for visa pick-up or delivery (depending on the consulate’s procedure). Once the visa has been received, the spouse can legally enter the United States and, upon entry, live as a Legal Permanent Resident. At a later point, the couple can think about citizenship, but that is the subject of an entirely different article.

After digesting all the material above, you now at least know where to begin in talking to the clients who come into your office with that star-struck look in their eyes.

Bruce Godzina is of counsel with Foster Quan, LLP. He earned his undergraduate degree from Rice University in 1997, his law degree from the University of Houston Law Center in 2003, and an MBA from the University of Notre Dame in 2008. His immigration law practice involves family and employment-based immigration, as well as litigation, waivers and appeals before the 5th Circuit, 9th Circuit, and the Board of Immigration Appeals.

 

Endnotes

1.See Immigration and Nationality Act (“INA”) § 245(i).  2. See INA § 212(a).  3.See INA § 212(a)(9)(B)(i).   4. See Matter of Ngai, 19 I&N Dec. 245 (BIA 1984).