I-601 Hardship Waivers: What's the Buzz All About?

Recently, U.S. Citizenship and Immigration Service (CIS) announced a new policy for I-601 hardship waivers. This has been getting a lot of buzz recently.  I have gotten several calls to my law firm because of the announcement.

This topic usually comes up while answering one of the more common questions undocumented people might have.  "I've married a US citizen.  Do I have to leave the country to get a green card?"  The answer is, most surely, yes.  Undocumented people cannot adjust status in the country just by marrying a US citizen (with a very few limited exceptions).  The undocumented spouse will need to leave the country and apply for a visa at the consulate in his or her country of origin.

So what's the problem with that?  Most undocumented people have lived in the U.S illegally for a period of more than one year.  If a person lives here for more than one year illegally and then leaves, he or she will not be able to apply for immigration benefits until 10 years have passed - this is known as the 10-year bar.

Most married couples are not willing to be separated for 10 years just to get status so undocumented spouses usually just choose to stay in the country.

However, there's a waiver - the I-601 hardship waiver.  If the waiver is granted, the undocumented spouse may return the U.S. without waiting 10 years.  If the undocumented spouse can show extreme hardship to the US citizen spouse without the grant of the visa, he or she gets back in.  Showing extreme hardship is not easy, though.

So why don't more people apply for the waiver?  The waiver must be applied for only after leaving the country.  Technically, this is because the 10-year bar does not even apply until the undocumented spouse leaves.  This waiver can take many months to receive, and sometimes more than a year.  Also, there's no guarantee it will be granted.  For most couples, it's not worth the time out of the country and the risk.

So what's changed?  CIS will begin accepting waiver applications while the undocumented spouse is still in the country.  This means that he or she will not leave the country until the waiver is granted.  Then the time outside of the country will be much shorter, maybe only a couple of months.

This is great, right?!  It seems like it is.  However, there's a really big question that hasn't been answered.  What will CIS do with denied waiver applications?  It can do two things: 1. deny the application and leave it at that, or 2. refer the denied spouse to ICE for removal proceedings.

What CIS decides to do is very important.  If it will not refer to ICE denied cases, many people will try to take advantage of this waiver.  What's the harm in trying?  However, if CIS refers to ICE, many people will still decide to forego this possibility.  The risk of deportation is not for the light-hearted.

Stay tuned for further developments!