The I-601A Provisional Unlawful Presence Waiver can be a very stressful process. If you have spent a certain amount of time in the United States (U.S.) without lawful immigration status or entered the U.S. without inspection, you may need to file this type of waiver application as the first step in getting your green card.
But it can be a hard type of case to win because U.S. Citizenship and Immigration Services (USCIS) requires you to demonstrate that your U.S. citizen spouse or parent will suffer extreme hardship if you are not allowed to remain in the United States, and proving extreme hardship can be an uphill battle.
USCIS recently approved one of our most challenging and complicated I-601A cases to date. This case was a difficult one because our client, Karolina*, had a long and nuanced immigration history, and at first blush we weren’t sure whether we would be able to demonstrate enough hardship to her husband to meet the high burden of “extreme hardship.”
Immigration background: It’s complicated
J-1, exchange visitor visa and marriage-based consular processing
Karolina originally came to the U.S. as a J-1 exchange visitor. While she was here, she met and fell in love with her first husband, George. George then filed an immigrant visa petition on her behalf, but because she wanted to finish her university studies in her home country of Lithuania, Karolina moved home to complete her immigrant visa application through consular processing. Unfortunately, her marriage fell apart while she was abroad, and she abandoned her immigrant visa application.
F-1, student visa
While continuing her studies and recovering from her failed relationship, Karolina reconnected with a friend named Scott who she had met during her time in the U.S. Karolina looked into pursuing the rest of her studies from the U.S. and applied for an F-1 student visa. Unfortunately, her student visa application was denied.
K-1, Fiancee visa
As Karolina and Scott grew closer and he spent more time visiting her, they felt more and more committed to each other. Scott later proposed, Karolina accepted, and Scott filed a K-1 fiancee visa petition on her behalf. Karolina’s fiancee visa petition was granted and she came to the U.S. and married Scott. Sadly, shortly after arriving in the U.S. and getting married, Scott’s behavior changed dramatically and he became both erratic, paranoid, and controlling. Though Karolina tried very hard to make things work, her second marriage broke down, as well. After things deteriorated, Karolina abandoned her second application for a green card and did not attend the scheduled interview.
I-601A, provisional waiver of unlawful presence with marriage-based consular processing
Karolina remained here in the U.S. to regroup and figure out her next steps after she and Scott separated. As she was getting her life back together, she met her current husband, Thomas. Karolina and Thomas had a lot in common and balanced each other’s personalities and strengths very well. They quickly became inseparable and within a few years, they were married.
When Karolina and Thomas came to our office, they were both anxious and confused. They didn’t know that their options were and they desperately hoped that they would be able to remain together and build a life here in the United States. I explained that in order to apply for a green card, Karolina would need to ask the government to forgive the time that she had spent in the U.S. without any legal immigration status and she would need to overcome the fact that she had not gotten a green card through her second husband after he sponsored her fiancee visa.
Consequences of failure to adjust status after entering on K-1 visa
Unfortunately, when Karolina’s marriage to Scott broke down, this happened before she completed the green card application process. Karolina abandoned her application to become a permanent resident based on her marriage to Scott, but didn’t leave the country. As a result, she was left without legal immigration status and she accumulated unlawful presence in the U.S. Since she didn’t adjust her status based on her marriage to the person who sponsored her fiancee visa application (Scott), Karolina was barred from adjusting her status in the U.S. based on her marriage to a different person (Thomas). Instead, Karolina had to apply for an immigrant visa by doing a marriage-based consular processing application. This meant that she would have to leave the country to attend her visa interview, which would trigger the unlawful presence bar to becoming a green card holder. So, in order to overcome the unlawful presence bar she would need an I-601A, provisional waiver of unlawful presence.
In order to successfully obtain an I-601A provisional waiver of unlawful presence, you have to prove extreme hardship to the U.S. citizen. Typically, the U.S. citizen must demonstrate that he or she suffers from a combination of serious medical and mental health issues, and would be in a very detrimental financial position without his or her spouse. Then, it involves looking at additional hardship factors and arguing to the government that when looking at all of these factors together, the total hardship should be considered “Extreme Hardship.”
Proving extreme hardship was no easy feat in this case. Our office meticulously reviewed forensic therapist reports, financial documents, and immigration records. We also interviewed the clients extensively about their relationship histories, difficult life experiences, medical issues, and business financials. We then drafted sworn statements that explored all possible areas of hardship. Eventually, a case that seemed like it might be hard to win became much stronger thanks to the dedication and drive of our office’s legal team.
How can the Law Offices of Joshua Goldstein help you?
The I-601A application process can be complicated and daunting. But if you entered the United States without inspection, or have a history of unlawful presence, and no other disqualifying issues (criminal, fraud, deportation), this I-601A could be your best path to getting a green card. Because it can be a tricky process, your best bet is to hire an experienced immigration lawyer.
Our office specializes in preparing successful I-601A cases. We use a detail-oriented approach to prepare thorough submissions for USCIS, guiding clients through the process every step of the way. If you’re wondering whether you qualify for an I-601A or have questions about the I-601A process, call the experienced immigration lawyers at the Law Offices of Joshua Goldstein today to schedule a consultation.
*Please note: Names and details have been changed to protect the confidentiality of the client.