I've spoken to several attorneys who all say that my parent must have a citizen spouse or parent to meet extreme hardship, but the very first sentence of the provisional waiver info says "parents of US citizens (immediate relatives) can apply for the waiver. What's going on?
Whatever the recent form and guidance says, it does not change the law in place about waivers for unlawful presence under INA Section 212a(9)(B). The 10 year bar can be waived by proving extreme and unusual hardship to the applicants spouse or parents who are USCs or Legal residents. Children are not included as anchoring relatives in this part of the statute.
Many people are confused by that. There are two separate issues. Only immediate relatives--who otherwise qualify for the waiver--can do the provisional approval process. In immigration law the term "immediate relative" includes parents of adult U.S. citizens. So if an adult U.S. citizen petitions for his or her parent, and if that parent otherwise qualifies for the waiver process, then they can apply for the provisional waiver. However, in order to qualify for the waiver, the applicant for the waiver (the parent) must be able to show extreme hardship to their U.S. citizen or permanent resident parent or spouse--kids don't count for that waiver. The applicant for the waiver is the parent, not the adult US. citizen petitioner. So the parent needs to have a parent or spouse who is a U.S. citizen or permanent resident who will suffer extreme hardship of the parent is not allowed to immigrate. If the parent doesn't have a qualifying parent or spouse, then even though they are applying as an immediate relative, they don't qualify for the waiver.
For example, where an adult U.S. citizen wants to petition for one parent who would be subject to the bar, but that U.S. citizen's other parent hasn't been to the U.S., and so wouldn't be subject to the bar, you would petition for the parent who wouldn't be subject to the bar first. Then the other parent would have a permanent resident spouse. The adult U.S. citizen son or daughter can then petition for the second parent as an immediate relative, and that parent would apply for the provisional waiver based on hardship to her permanent resident spouse--assuming, of course, they are still married. Feel free to contact me if you would like to make an appointment for a consultation.
The best way to explain this is that there are two separate questions involved: 1. does the foreign national have a person who can petition for them and 2. does the foreign national have a qualifying relative that would suffer extreme hardship without th foreign national.
The answer to question number 1 is that a 21-year-old US citizen child can petition for her parent (and that parent is treated as an immediate relative). The answer to question number two: the child is not considered a qualifying relative for either the provisional waiver program or the traditional I-601 immigrant waiver program.
This is what the Immigration and Nationality Act says about the waiver:
(v) Waiver.-The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause."
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