Seeking a Hardship Waiver for a Deported Family Member

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If you or a member of your family have been deported (removed) from the United States, obtaining the legal right to return will not be easy. The law has placed various barriers in your way. Although some of these can be overcome with a request for a waiver, others cannot. We will briefly describe the situation here, but you should consult with a U.S. immigration attorney for a full analysis of your personal situation.

Bar on Returning to the U.S. After Deportation

Someone who has been removed from the U.S. is legally considered inadmissible for a period of time after that, under Section 212 of the Immigration and Nationality Act (I.N.A.). The exact length of time that you're inadmissible for depends upon the reason for which you were removed.

For most people who have actually spent time in the U.S. (as opposed to having been stopped upon arrival) the inadmissibility period is ten years. However, the bar becomes 20 years for someone who has committed an aggravated felony, and permanent (lifetime) if you stayed in the U.S. unlawfully for an aggregate of one year and then reentered or attempted to enter illegally, without lawful admission.

It is possible to apply for waiver of your inadmissible status. This is referred to as an I-212 application, due to the form on which the waiver application is made. An I-212 waiver does not, like other waivers, require showing that the deported immigrant has a qualifying U.S. relative who would suffer hardship. Instead, decisions on I-212 waivers depend on factors like the reason for deportation, how recently you were deported, your length of legal residence in the United States before being deported, your moral character and respect for law and order, your family responsibilities, and the hardship you and any relevant others would face if you were denied reentry.

Bar on Returning to the U.S. After Unlawful Presence

You become inadmissible to the U.S. under a completely separate section of the law if you have spent more than six months (180 days) in the United States with no valid visa or other right to remain here. The penalty in this case is that if you:

  • accrued unlawful presence in the U.S. of more than 180 days but less than one year, leave voluntarily and then attempt to return, you will be inadmissible for three years, or
  • accrued unlawful presence in the U.S. of more than 180 days but less than one year, leave voluntarily or under an order of removal, and then attempt to return, you will be inadmissible for ten years.

In this case, you can apply for a waiver if you are the spouse or immediate son or daughter of a U.S. citizen or green card holder and that person would face extreme hardship if you were denied U.S. reentry.

This is referred to as an I-601 waiver. The important things to realize here are that:

  • the hardship that you claim the qualifying U.S. relative would face must be more severe than the anxiety and sadness that anyone would face upon separation from a family member, and
  • You’ll need to back up your claim of extreme hardship with documentary evidence including detailed explanations and personal testimony.

These types of waivers are difficult, but not impossible, to obtain. If, for example, you have a family member with an illness that requires care from doctors in the U.S. as well as help from the overseas parent, you might have a good case for waiver. Similarly, if the immigrant’s home country is in civil and political turmoil and would be dangerous for the U.S. family members to stay in, that might be good grounds for a waiver. Although economic hardship alone is not usually enough to meet the “extreme hardship” requirement, it will be taken into account in combination with other factors.

Some consulates are reputedly more willing to approve this type of waiver than others. This would be a great time to consult with an experienced immigration lawyer to get the skinny on how to prepare your application and what its likely chances of success are.

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