Green cards obtained through marriage to a U.S. citizen are a popular way to achieve permanent residency status in the United States. But what happens when the non-citizen spouse in the relationship did not enter the country lawfully? Is there any hope for star-crossed lovers in this situation?
Rumors abound on what, exactly, can and cannot be done for a non-citizen spouse. Any spouse who wants to obtain a green card and has been unlawfully present in the U.S. for over 6 months but less than 1 year is subject to a 3-year bar from the U.S. before they can return with proper documentation. For those who spent more than 1 year out of status, the punishment is an even steeper 10-year bar.
Let’s look at a simple example. Tony, a native of Guatemala, enters the U.S. in 2003 without a visa. He later meets and falls in love with Jessica, a U.S. citizen, and they marry in 2008. They eventually have two U.S. children together, who of course are U.S. citizens. Jessica can start the green card process by first filing a family petition (known as Form I-130) for Tony in the U.S. After the petition is approved, Tony would have to return to Guatemala for 10 years since he was unlawfully present in the U.S. for more than 1 year.
The only way to lift the 10-year bar is to apply for, and be granted, an I-601 waiver. Currently, that waiver can only be filed once Tony returns to Guatemala. For it to be granted, Tony must prove that the separation will result in “extreme hardship” to Jessica. Notably, extreme hardship towards children is not a factor for this specific waiver. Only extreme hardship to the U.S. citizen or green card holding spouse left behind is considered. In this scenario, if extreme hardship to Jessica is established, Tony’s waiver will be approved and he will be granted an Immigrant Visa to enter the U.S. lawfully. If the waiver is denied, Tony is stuck! He will have to remain in Guatemala for 10 years.
Fortunately, we anticipate that U.S. Citizenship and Immigration Services (USCIS) will be making the waiver process a bit easier. Instead of having to leave the U.S. to apply for the I-601 waiver, applicants will soon be able to file Form I-601 in the U.S. If approved, the applicant will only have to leave the U.S. temporarily to complete visa processing. If denied, the applicant must decide whether to remain in the U.S. in the hope that Congress and the President will enact a new amnesty law, or return to their native country to serve the 3 or 10-year bar.
Keep in mind, the “extreme hardship” standard for the waiver will remain the same- the change we anticipate is simply that the immigrant will no longer have to return to their home country before filing Form I-601. What constitutes extreme hardship will differ from case to case, and legal representation by an experienced immigration attorney in preparation of a hardship waiver is extremely encouraged.
The immigration attorneys at Livesay & Myers, P.C. have extensive experience with extreme hardship waivers. From our offices in Manassas and Fairfax, Virginia, we represent clients across the United States in extreme hardship waiver cases. If you or a loved one require legal assistance with an extreme hardship waiver or any other immigration law matter, contact us to schedule your initial consultation with an experienced immigration lawyer today.
Updated 10-18-12. Implementation of the new I-601 waiver will occur by the end of 2012. Check back here for more details as they become available.
Updated 1-2-13. Today, the Department of Homeland Security designated March 4, 2013 as the date on which “extreme hardship” waivers can be filed from the United States. This marks a significant step for immigrants who have been unlawfully present in the U.S. for more than 6 months, yet have certain immediate relatives who are U.S. citizens, to apply for and receive a provisional waiver in the U.S. before departing to complete visa processing abroad. In the past, the immigrant had to depart the U.S. to apply for the waiver and be separated from their loved ones for long periods of time. We welcome this change in policy and encourage those interested in applying to contact us to schedule a consultation with an experienced immigration attorney.
Updated 1-10-13. USCIS has created a helpful pamphlet for the new provisional waiver process, which can be viewed at this link.
En Español: Perdones por sufrimiento extremo en casos de inmigracion.
About Jennifer Varughese
Jennifer S. Varughese is the lead immigration attorney at Livesay & Myers, P.C. Her immigration law practice covers both family-based and employment-based green cards, temporary visas, adjustment of status for those already present in the country, citizenship, and deportation cases. Ms. Varughese has been recognized for her work in the area of the immigration consequences of criminal convictions.
52 Responses to “Extreme Hardship Waivers In Immigration Cases”
robin says: Any idea when this new law will pass? My husband iis in the process of fiiing his I130
Jennifer Varughese says: @Robin, a firm date has not been set. A “final rule” has to be published in the Federal Register with the effective date. We’ll keep you posted.
mdiasichael says: Hi. i have my I 30 appreved in 2005, is this new law doing to be in effect this year?
Jennifer Varughese says: @Mdiasichael, the new waiver policy should be in effect by the end of this year.
Dessire Vega says: Hi Jennifer Varughese-
Thank you for the information provided, I am constantly checking the USCIS website to check on updates on the I-601. I currently live in NJ and my husband and I just started doing the paperwork we are in the initial review, (already filed the I-130) waiting on the decision. I wanted to ask you on average how long does take to go from initial review to a decision? (Our paperwork was directed to the office in Vermont, which says it takes average of 5 months) Our petition was received on June, 2012 it is now November. Now if the final rule is due by the end of the year should people start filing for it now or just wait? Thank you for your time and the information provided. Have a great day!
Jennifer Varughese says: @Dessire Vega, though the published wait-time for an I-130 petition is 5 months, we’re seeing cases taking about 6-7 months from initial filing to approval. Regarding the waiver, the new rules are not in place so do not file it yet.
joe says: im a green card holder with an unmarried son of 21 unlawful presently pass 180days with a visa number available to adjust status can we file a i601 wavier when filing i485 thanks
Jennifer Varughese says: @Joe, the waiver applicant has to able to show extreme hardship to a U.S. citizen parent or spouse. The case you describe doesn’t quite fit the facts for the new waiver process. Please contact us to discuss this further.
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ok thanks but on the uscis website it says any applicant for adjust ment of status can file the form in the us and must be able to demonstrate extreme hardship…. so basically he will have to demonstrate extreme hardship on me
Jennifer D says: Do we qualify for waiver, or are there other grounds for inadmissability?
Me: US Citizen, Husband: Mex, we have 1 child age 6: US Citizen.
Husband: SAW visa 1988, expired in 1991, attempted to Ajust Status; denied. No deportation order. Stayed illegally in US until 1999, went back to Mex; EWI in 2000, caught, fingerprints and thrownback (VD), then successfully EWI the next week. 2006 our child born, 2009 we got married. No criminal records, current & clean driver’s license.
Supposing we could show extreme hardship, are there additional grounds for inadmissability due to the 2000 EWI?
Jennifer Varughese says: @Jennifer D, unfortunately it appears that your husband’s previous presence of over 1 year triggered another ground of inadmissibility.
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ok cool which means he can do that then file i601 with his i 485 for aos
Jennifer Varughese says: @Joe, what you’re reading on the USCIS website deals with I-601 waivers that are filed with adjustment of status cases in the U.S. The new waiver applies to those who cannot file for adjustment in the United States.
Ali says: Hi, i have 6 yrs old daughter and she is a US citizen, how this new waiver law can help me Adjust my status? or prove extreme hardship?
note: both parents are separated and out of status for more than 10 yrs
Jennifer Varughese says: @Ali, the new waiver process does not apply in your situation. You first need someone to sponsor you for a green card. A 6-year old child cannot start a sponsorship process.
Alexandrea says: My husband was accepted for a i601wavier. How do I show extreme hardship when I moved to Mexico to be with him already.
nancy says: hi jennifer please answer my question.
my husband is a US citizen. we have 2 US citizen children. one of them has a chromosomal abnormality that is causing him growth delayed and delayed milestones. the dr’s say his case can get worse as he gets older. He has been going to therapies ever since he was 8 months old, and im the only who can take him bc my husband has to work. the catch here is that i came illegally to the US when i was 8 years old. then i did a voluntary departure in 2006 when i was 19 years old. and came back again that same year illegally. is my son’s medical condition a proof of “extreme hardship” or because of my Voluntary Dept. that would exclude me from the waiver.
Thanx in advanced.
Jennifer Varughese says: @Alexandrea, you may not be able to prove extreme hardship since you are with him in Mexico. The factors that would be considered – health, finances, etc. – would not be as strong if you are not separated.
Jennifer Varughese says: @Nancy, the extreme hardship must be proven to a U.S. citizen spouse or parent, not child. In addition, it looks like you triggered another bar by leaving and then re-entering illegally.
Jason says: Hi Jennifer, How are you? how you ever had a case where someone overstayed they tourist visa by 10 months and after returning to their home country, they applied were approved a new visa without facing the 3 year ban.
Jennifer Varughese says: @Jason, certain waivers exist to excuse visa overstays. Contact us for more information.
Andy says: Hi Jennifer,
Do you handle cases in NY? Here is my situation…please tell me if you would be able to handle it or if it’s not possible.
Me: U.S Citizen
Her: Entered illegally in 2009. Never had issues with the law, no record, etc. Pays taxes, has ITIN as well.
We’ve been married for almost 2 years now. Do not have any kids.
Thanks
Jennifer Varughese says: @Andy, yes, we handle cases nationwide. As long as “extreme hardship” to you can be proven, the provisional waiver may be a good option for both of you. Contact us for more information.
Murtuza says: Hi Jennifer,
i am currently a US citizen and my wife has a G4 visa. i am planning on filing green card for her .Can you please explain me what are the forms i need to submit …
Is it a easy process?
Jennifer Varughese says: @Murtuza, please contact us for a consultation. There are many forms involved and the process is not simple.
eddie says: im married with a U.S citizen 5 years im ilegal and im 12 years living in U.S what should i do to become legal
umesh sewani says: hello
i overstayed my visa i left us in 2003 for india
i have i son who is us citizen does this 1601 law will help us
that he can apply for me he is 17 years old and stay with my brother
thak you
Susannah Nichols says: @Eddie, you may be a candidate for the new waiver which would forgive your illegal entry. You would have to establish “extreme hardship” to your U.S. citizen spouse. There are quite a few steps involved in proving extreme hardship. Contact us for more information.
Susannah Nichols says: @Umesh, the new 601 waiver process will likely not be beneficial to your situation as you are outside the country and you must demonstrate extreme hardship to either a U.S. citizen spouse or U.S. citizen parent. Your son will be able to apply for you after he turns 21.
umesh sewani says: hello jennifer
my wife has a us visa and she will be coming to see his son
she can apply for 601
Susannah Nichols says: @Umesh, it sounds like your wife will be entering the country with a visa. The 601 waiver only applies to those who originally entered the country illegally.
Sandra kitterman says: Im starting on the application for the hardship waiver for my boyfriend soon. Do we need to be married?
Jennifer Varughese says: @Sandra, yes, you need to get married first.
Camila Junior says: Good evening,
I wanted to know if my husband left the country can we still apply for the waiver that was approved? He went to Brazil in December of 2012 and he is still waiting for his interview back home.
Camila Junior
Jennifer Varughese says: @Camila, the new stateside waiver processing only applies to applicants who are currently in the U.S.
jhon says: Does a unmarried son of american citizen 29 years old,i130 approved .get a waiver for 12 year overstayed turist visa?what does harship mean?financially?health?work?how can we prove this ?
Jennifer Varughese says: @Jhon, the new stateside waiver processing does not apply in your situation. All of the factors you mentioned would be considered in a hardship waiver.
Emily Zepeda says: Jennifer, what are the possibilities in cases of extreme hardship that the waiver will be approved? How long can this take after issuing a petition of married to a US citizen?
Jennifer Varughese says: @Emily, the chances of approval depend on the presence of factors that are truly extreme. In other words, normal hardship that any couple will face is insufficient. Waivers can take several months for approval.
umesh sewani says: hi jennifer
if my wife come to usa and stay with my son who is us citzen
will she can apply for ammesty or not once she over stay here visa
once the law is pass
thank you
Jennifer Varughese says: @Umesh, we can never advise that someone overstay their visa. No amnesty laws have passed yet, but stay tuned over the next couple of months as we wait to see what Congress passes.
Monica says: My husband has accepted voluntary departure and leaves April 9th 2013. Would we benefit of this new I 601 effective March 4th? Could we still apply for I 602 from here?
Thank you very much.
Monica
Jennifer Varughese says: @Monica, a separate bar will be in place if your husband does not leave on time. His voluntary departure order will turn into a removal (deportation) order. He will have to pursue any waivers from abroad.
May says: Hi Jennifer
I am a mother of a 2 months US citizen infant, I have another 3 years old child who is not a US citizen, we have a B1-B2 visa and we’re Egyptians, with the current unstable political and safety siuation in Egypt we want to move and live in the US, how can we do this legally through our baby? we dont mind starting the procedure from Egypt or US whatever is better for our case.
Thanks
Jennifer Varughese says: @May, unfortunately, your child has to turn 21 before being able to sponsor you for a green card. If you can show actual past persecution or the likelihood of future persecution based on your religion, race, etc., then applying for refugee or asylee status may be an option. Otherwise, you will be limited to visiting on the B-2 visa.
Ivy hernandez says: I am a usa citizen married my husband in october 2012, we have been trying to have a child for over a year we are going under infetility treatment, is this considered a medical extreme hardship for him to legalize his immigration status?
Jennifer Varughese says: @Ivy, for a personalized assessment on what is and is not considered extreme hardship, please schedule a consultation with our office.
lauren gomez says: my husband-illegal is in mexico since november 2012 and the i-601 waiver was received on nov 16, 2012. we have one daughter(citizen). our uscis office is in nebraska which shows in the cite that it will take about 4 months. do u have any idea how long it will take to go from the initial review to decision? can i write a letter to them about my hardships since he hasn’t been here(family death, ive had to move back in with my parents, studying to be a nurse but had to reduce from full-time to part-time student and insurance at my job might get canceled cause its too expensive at this time. we have been praying everyday. thank you.
Jennifer Varughese says: @Lauren, filing the immigration form for the waiver is not enough, by itself. A case has to be made, on paper, that extreme hardship exists. Contact our office for assistance in filing a waiver package.
Yelena says: Hi there! I m 30 years old have been married to my husband USC for over 2 years. I have a pending 9 th circuit political asylum case. I 130 have been approved but MTR has been denied. I am not eligible for i601a since I ve always been legal. But if my asylum gets denied I ll have to go back and my husband has o submit paperwork for 212 and 601. How can a young couple over come extereme hardship factors to get that waiver approved? Have you helped someone in the same conditions?
Thank you
-
@Yelena, what is and is not extreme hardship depends on the factors present in each couple’s situation. Please contact our office to schedule a consultation for a detailed discussion of your particular situation.
Any idea when this new law will pass? My husband iis in the process of fiiing his I130
@Robin, a firm date has not been set. A “final rule” has to be published in the Federal Register with the effective date. We’ll keep you posted.
Hi. i have my I 30 appreved in 2005, is this new law doing to be in effect this year?
@Mdiasichael, the new waiver policy should be in effect by the end of this year.
Hi Jennifer Varughese-
Thank you for the information provided, I am constantly checking the USCIS website to check on updates on the I-601. I currently live in NJ and my husband and I just started doing the paperwork we are in the initial review, (already filed the I-130) waiting on the decision. I wanted to ask you on average how long does take to go from initial review to a decision? (Our paperwork was directed to the office in Vermont, which says it takes average of 5 months) Our petition was received on June, 2012 it is now November. Now if the final rule is due by the end of the year should people start filing for it now or just wait? Thank you for your time and the information provided. Have a great day!
http://cliniclegal.org/important-changes-i-601-waiver-processing
@Dessire Vega, though the published wait-time for an I-130 petition is 5 months, we’re seeing cases taking about 6-7 months from initial filing to approval. Regarding the waiver, the new rules are not in place so do not file it yet.
im a green card holder with an unmarried son of 21 unlawful presently pass 180days with a visa number available to adjust status can we file a i601 wavier when filing i485 thanks
@Joe, the waiver applicant has to able to show extreme hardship to a U.S. citizen parent or spouse. The case you describe doesn’t quite fit the facts for the new waiver process. Please contact us to discuss this further.
ok thanks but on the uscis website it says any applicant for adjust ment of status can file the form in the us and must be able to demonstrate extreme hardship…. so basically he will have to demonstrate extreme hardship on me
Do we qualify for waiver, or are there other grounds for inadmissability?
Me: US Citizen, Husband: Mex, we have 1 child age 6: US Citizen.
Husband: SAW visa 1988, expired in 1991, attempted to Ajust Status; denied. No deportation order. Stayed illegally in US until 1999, went back to Mex; EWI in 2000, caught, fingerprints and thrownback (VD), then successfully EWI the next week. 2006 our child born, 2009 we got married. No criminal records, current & clean driver’s license.
Supposing we could show extreme hardship, are there additional grounds for inadmissability due to the 2000 EWI?
@Jennifer D, unfortunately it appears that your husband’s previous presence of over 1 year triggered another ground of inadmissibility.
ok cool which means he can do that then file i601 with his i 485 for aos
@Joe, what you’re reading on the USCIS website deals with I-601 waivers that are filed with adjustment of status cases in the U.S. The new waiver applies to those who cannot file for adjustment in the United States.
Hi, i have 6 yrs old daughter and she is a US citizen, how this new waiver law can help me Adjust my status? or prove extreme hardship?
note: both parents are separated and out of status for more than 10 yrs
@Ali, the new waiver process does not apply in your situation. You first need someone to sponsor you for a green card. A 6-year old child cannot start a sponsorship process.
My husband was accepted for a i601wavier. How do I show extreme hardship when I moved to Mexico to be with him already.
hi jennifer please answer my question.
my husband is a US citizen. we have 2 US citizen children. one of them has a chromosomal abnormality that is causing him growth delayed and delayed milestones. the dr’s say his case can get worse as he gets older. He has been going to therapies ever since he was 8 months old, and im the only who can take him bc my husband has to work. the catch here is that i came illegally to the US when i was 8 years old. then i did a voluntary departure in 2006 when i was 19 years old. and came back again that same year illegally. is my son’s medical condition a proof of “extreme hardship” or because of my Voluntary Dept. that would exclude me from the waiver.
Thanx in advanced.
@Alexandrea, you may not be able to prove extreme hardship since you are with him in Mexico. The factors that would be considered – health, finances, etc. – would not be as strong if you are not separated.
@Nancy, the extreme hardship must be proven to a U.S. citizen spouse or parent, not child. In addition, it looks like you triggered another bar by leaving and then re-entering illegally.
Hi Jennifer, How are you? how you ever had a case where someone overstayed they tourist visa by 10 months and after returning to their home country, they applied were approved a new visa without facing the 3 year ban.
@Jason, certain waivers exist to excuse visa overstays. Contact us for more information.
Hi Jennifer,
Do you handle cases in NY? Here is my situation…please tell me if you would be able to handle it or if it’s not possible.
Me: U.S Citizen
Her: Entered illegally in 2009. Never had issues with the law, no record, etc. Pays taxes, has ITIN as well.
We’ve been married for almost 2 years now. Do not have any kids.
Thanks
@Andy, yes, we handle cases nationwide. As long as “extreme hardship” to you can be proven, the provisional waiver may be a good option for both of you. Contact us for more information.
Hi Jennifer,
i am currently a US citizen and my wife has a G4 visa. i am planning on filing green card for her .Can you please explain me what are the forms i need to submit …
Is it a easy process?
@Murtuza, please contact us for a consultation. There are many forms involved and the process is not simple.
im married with a U.S citizen 5 years im ilegal and im 12 years living in U.S what should i do to become legal
hello
i overstayed my visa i left us in 2003 for india
i have i son who is us citizen does this 1601 law will help us
that he can apply for me he is 17 years old and stay with my brother
thak you
@Eddie, you may be a candidate for the new waiver which would forgive your illegal entry. You would have to establish “extreme hardship” to your U.S. citizen spouse. There are quite a few steps involved in proving extreme hardship. Contact us for more information.
@Umesh, the new 601 waiver process will likely not be beneficial to your situation as you are outside the country and you must demonstrate extreme hardship to either a U.S. citizen spouse or U.S. citizen parent. Your son will be able to apply for you after he turns 21.
hello jennifer
my wife has a us visa and she will be coming to see his son
she can apply for 601
@Umesh, it sounds like your wife will be entering the country with a visa. The 601 waiver only applies to those who originally entered the country illegally.
Im starting on the application for the hardship waiver for my boyfriend soon. Do we need to be married?
@Sandra, yes, you need to get married first.
Good evening,
I wanted to know if my husband left the country can we still apply for the waiver that was approved? He went to Brazil in December of 2012 and he is still waiting for his interview back home.
Camila Junior
@Camila, the new stateside waiver processing only applies to applicants who are currently in the U.S.
Does a unmarried son of american citizen 29 years old,i130 approved .get a waiver for 12 year overstayed turist visa?what does harship mean?financially?health?work?how can we prove this ?
@Jhon, the new stateside waiver processing does not apply in your situation. All of the factors you mentioned would be considered in a hardship waiver.
Jennifer, what are the possibilities in cases of extreme hardship that the waiver will be approved? How long can this take after issuing a petition of married to a US citizen?
@Emily, the chances of approval depend on the presence of factors that are truly extreme. In other words, normal hardship that any couple will face is insufficient. Waivers can take several months for approval.
hi jennifer
if my wife come to usa and stay with my son who is us citzen
will she can apply for ammesty or not once she over stay here visa
once the law is pass
thank you
@Umesh, we can never advise that someone overstay their visa. No amnesty laws have passed yet, but stay tuned over the next couple of months as we wait to see what Congress passes.
My husband has accepted voluntary departure and leaves April 9th 2013. Would we benefit of this new I 601 effective March 4th? Could we still apply for I 602 from here?
Thank you very much.
Monica
@Monica, a separate bar will be in place if your husband does not leave on time. His voluntary departure order will turn into a removal (deportation) order. He will have to pursue any waivers from abroad.
Hi Jennifer
I am a mother of a 2 months US citizen infant, I have another 3 years old child who is not a US citizen, we have a B1-B2 visa and we’re Egyptians, with the current unstable political and safety siuation in Egypt we want to move and live in the US, how can we do this legally through our baby? we dont mind starting the procedure from Egypt or US whatever is better for our case.
Thanks
@May, unfortunately, your child has to turn 21 before being able to sponsor you for a green card. If you can show actual past persecution or the likelihood of future persecution based on your religion, race, etc., then applying for refugee or asylee status may be an option. Otherwise, you will be limited to visiting on the B-2 visa.
I am a usa citizen married my husband in october 2012, we have been trying to have a child for over a year we are going under infetility treatment, is this considered a medical extreme hardship for him to legalize his immigration status?
@Ivy, for a personalized assessment on what is and is not considered extreme hardship, please schedule a consultation with our office.
my husband-illegal is in mexico since november 2012 and the i-601 waiver was received on nov 16, 2012. we have one daughter(citizen). our uscis office is in nebraska which shows in the cite that it will take about 4 months. do u have any idea how long it will take to go from the initial review to decision? can i write a letter to them about my hardships since he hasn’t been here(family death, ive had to move back in with my parents, studying to be a nurse but had to reduce from full-time to part-time student and insurance at my job might get canceled cause its too expensive at this time. we have been praying everyday. thank you.
@Lauren, filing the immigration form for the waiver is not enough, by itself. A case has to be made, on paper, that extreme hardship exists. Contact our office for assistance in filing a waiver package.
Hi there! I m 30 years old have been married to my husband USC for over 2 years. I have a pending 9 th circuit political asylum case. I 130 have been approved but MTR has been denied. I am not eligible for i601a since I ve always been legal. But if my asylum gets denied I ll have to go back and my husband has o submit paperwork for 212 and 601. How can a young couple over come extereme hardship factors to get that waiver approved? Have you helped someone in the same conditions?
Thank you
@Yelena, what is and is not extreme hardship depends on the factors present in each couple’s situation. Please contact our office to schedule a consultation for a detailed discussion of your particular situation.