There is considerable excitement about the government's announcement that concurrent filing of the I-130 and I-601 will soon be allowed. But what if the hardship waiver (I-601) gets denied? The government has already made clear that anyone whose I-601 gets denied will be at risk for removal proceedings, so how can you reduce the risk of denial?
There will be two types of denials: those who do not qualify for the concurrent filing and those who do not prove extreme hardship.
Who will not be eligible for concurrent filing?
- Your qualifying relative for the I-601 (hardship waiver) is a lawful permanent resident
The hardship waiver requires proving extreme hardship to certain relatives (i.e. a spouse or a parent) who are either US citizens or lawful permanent residents. (Please remember: a child is not a qualifying relative.) The new filing procedure though will be limited to qualifying relatives who are U.S. citizens.
If you have a parent or a spouse who is a U.S. citizen, you will qualify for concurrent filing of the I-130 and I-601.
If your qualifying relative is a lawful permanent resident, you will not be eligible for concurrent filing of the I-130 and I-601. Your I-130 will be approved, but the I-601 will be denied.
What's the solution if your qualifying relative is a lawful permanent resident? Apply for U.S. citizenship.
Many lawful permanent residents who are qualifying relatives for the hardship waiver have had green cards long enough to qualify for naturalization. The biggest barrier to their naturalization is anxiety about English language skills and possibly a misunderstanding about how fluent they need to be to pass the English test. This is now an incentive for those lawful permanent residents to apply for naturalization and brush up on their English. Not only will that qualify their spouse or child for concurrent filing of the hardship waiver, it will also mean they can vote in U.S. elections.
- You are inadmissible to the country for reasons other than just "unlawful presence."
There are many grounds of inadmissibility, but the most common are: unlawful presence, criminal convictions, misrepresentations and smuggling relatives into the U.S.
The government has said the waiver applications of applicants who are inadmissible for reasons other than "unlawful presence" will be denied if the waiver is filed concurrently with the I-130.
What's the solution? The only solution is to know whether any of those other grounds apply to your case and not file the waiver concurrently if you are inadmissible for anything other than unlawful presence. You then will have to decide whether you will pursue a hardship waiver filed at a consulate after you have left the country.
The issue of criminal convictions will be the most complicated one because not all criminal convictions make a person inadmissible. Whether a particular criminal conviction makes someone inadmissible depends on the language of the statute. An immigration attorney is the best person to help you figure out whether your criminal conviction makes you inadmissible.
If my application gets denied because I am not eligible for concurrent filing, does that mean I can never get the hardship waiver approved?
If your waiver application gets denied because you are not eligible for concurrent filing, this does not mean you cannot prove extreme hardship. You may have a very strong hardship waiver case. It means only that you have file your waiver application at a designated consulate after you've had your immigration interview, then wait possibly 9-12 months before being allowed to re-enter the U.S. (assuming the waiver is approved).
You can avoid the expense (and disappointment) of being denied for lack of eligiblity by talking with an immigration attorney before you start anything.
What if I am eligible for concurrent filing of the I-130 and I-601 but my waiver gets denied?
If your hardship waiver gets denied even though you are eligible for concurrent filing, that will mean you have failed to show your U.S. citizen spouse or parent will suffer extreme hardship.
You will have two choices: re-filing the I-601 or appealing the I-601. If it was a well-documented application, then appeal is the better route. If it was a poorly documented application, then re-file is the better route.
Most hardship waivers are denied because they are poorly documented. The hardships exist and meet the criteria of "extreme," but the applicant has not provided sufficient documentation to persuade the government about the hardships. These types of denials typically happen to individuals who try to do the application by themselves or use a notario or retain an attorney who lacks experience doing hardship waivers.
An immigration attorney will be able to tell you whether your case should be appealed or re-filed. Please remember to keep a copy of your hardship waiver to help the attorney make the decision about which route you should follow.
If you re-file or appeal, the government very likely will not put you into removal proceedings. This then gives you time to try again. You best chance at success is through an immigration attorney with experience preparing hardship waivers.
The change to regulations will provide a good opportunity for some people to legalize, but the process does have risks. Talking with an immigration attorney will help you manage those risks and avoid unnecessary expense and disappointment.
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