Currently and under most circumstances, when a foreign born spouse has entered the United States with inspection he/she can adjust status through an American citizen spouse. When a foreign spouse has not entered the United States with inspection and a petition to adjust status is filed, the petition will be denied because the foreign spouse is inadmissible. The foreign born spouse may need to return to his/her country and a Hardship Waiver must be filed before he/she will be allowed to return to the United States.
First, the I-130 should be filed with the NVC. Upon approval the I-130 is forwarded to the National Visa Center. The Financial Affidavit and Immigrant Visa Petition is filed with the National Visa Center. The National visa Center will forward the entire file to the U.S. consulate in the foreign spouse’s country of domicile. A consulate officer will review the file, conduct an interview. The spouse will then be notified that a hardhip waiver must be filed.
Some consulates may allow the waiver to be filed at the same time as the usual applications or at the interview. However, most consulates require that the applications and interview take place before the waiver is accepted for filing. Each U.S. Consulate has its own procedure. It is important to work with an experienced immigration attorney who knows how to navigate and work with the consulate where the waiver must be filed.
The qualifying U.S. Citizen Spouse must submit verifiable evidence with the appropriate application to demonstrate that if the foreign born spouse is not allowed to enter the United States he/she will suffer “extreme hardship." The Immigration and Nationality Act (INA) sets forth the criteria that must be met in order for an I-601 Waiver to be granted. Case law interprets and applies the INA to individual cases.
The filing of a waiver requires that each individual case be analyzed to determine whether extreme hardship exists. Extreme Hardship may be found as a result of a single factor or by the overall effect of a number of factors. It is vital to have your case analyzed by an experienced immigration attorney who files waivers, (not all immigration attorneys file waivers).
There is currently pending a proposed policy change. If approved this policy will allow foreign spouses, who are inadmissible for no reason other than that they entered the United States without inspection, to have their waiver considered without the necessity of returning to their home country. To know when and if this policy is implemented keep in touch with the Mulder Law Office.
Kyndra L. Mulder, Esquire has practiced law for over 25 years. Her practice is limited to immigration law including the filing of waivers as all United States Consulates throughout the world.