The I-130 that I filed for my husband was approved. But when it was approved I was still a permanent resident. My husband entered without papers and now we want to fix his papers. I just became a naturalized US citizen this year. Can I still qualify for the I-601A provisional waiver?
I was reading the I-601A instructions and it says one of the requirements is that the applicant needs to be "the beneficiary of an approved immediate relative petition".
Waivers are very complex and you really want to at least consult with an experienced immigration attorney to make sure you have a strong case. You will have to show 'extreme hardship' and attorneys are more familiar with important factors and can analyze your particular situation. Also, while your husband may be eligible for the provisional waiver, remember that this waiver is only for unlawful presence, so in order to keep his stay outside of the US minimal, a screening by an immigration attorney could really help.
Do you qualify for a waiver? It would depend on many factors related to your health. living conditions, etc. Can you still qualify for the I601A waiver? It would depend on how far the I-130 process has advanced. The bottom line is that you need to speak with an immigration attorney in person.
I agree with my colleagues in that you need to consult with an experienced immigration attorney. What I can tell you is that the law requires that in order to obtain an waiver, the applicant must demonstrate “extreme hardship” to a qualifying relative. You should be careful when you make the decision on doing the waiver on your own or hiring an experienced attorney, and by attorney I mean a licensed attorney not a notary public or a paralegal or a consultant. Be careful because if your husband's waiver is denied there's no appeal, and although you may be able to file a motion to reopen, the agency reserves the right to actually reopen it or not. Also, if the waiver is denied there is the risk of your husband being placed in removal proceedings if the government considers him to be a priority -which usually means that a person has a criminal history. I hope this helps.
As all previous counsel have stated: DON'T DO THIS ON YOUR OWN! The I-130 is a walk in the park compared to the I-601A.
You might cringe at the thought of hiring (more like paying) an attorney, but this is money well spent. I tell all of my clients that these waivers are NOT slam-dunks. To try and do one on your own is a huge risk to your family, because as previously stated, your husband is already on "ICE's radar". If they consider him a threat then they have every right to arrest him. And since the I-130 has all of his information, it wouldn't be difficult for him.
Please feel free to contact me and I will give you a free phone consultation.
Thomas J. Baker
Law Office of Daniel M. Wigon
916-447-8975 - Sacramento Office
925-338-9750 - Bay Area Office
Assuming that your husband does not a have a criminal record, has not been ordered removed, is not currently in removal proceedings and is not otherwise inadmissible to the U.S., then yes, he may apply for a conditional waiver. Of course whether it will be granted if another matter altogether, as others have commented.
Hi..first and foremost do not do this process on your own. Only hire an experienced immigration attorney and ask them for referrals. Waivers are extremely complicated thus you should only retain someone after you have completely researched their qualifications. As for your waiver, if your husband is currently in the United States, you can not assume automatically he needs a waiver if he had an illegal entry. You need to look at his immigration history, his parents status, whether he had any prior removals. He might be grandfathered in and allowed to remain in the us and adjust without a waiver. Please do not attempt to do this on your own. Best of luck to you
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