ILW.COM - the immigration portal Immigrant's Weekly

< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Don't Take Away My Spouse, Please!

by Carl Shusterman

At least once a week, I meet with a married couple where one spouse is a U.S. citizen and the other entered the U.S. unlawfully. The couple usually has been married for years, has children and the undocumented spouse has resided in the U.S. for years. Even though, it allegedly is the purpose of our immigration laws to prevent the separation of families, the undocumented spouse is usually prohibited from adjusting his/her status in the U.S. because of the original unlawful entry. There is a limited exception to this rule called "section 245(i)".

If the undocumented spouse has resided in the U.S. for more than ten years, he has at least two alternatives: (1) One involves going abroad to apply for an immigrant visa at a U.S. Consulate in his home country; (2) The other involves placing himself under removal proceedings and applying for permanent residence via "cancellation of removal".

* Applying for an Immigrant Visa Abroad - In 1996, Congress amended the immigration law to provide that someone who has one year or more of "unlawful presence" in the U.S., and who exits the U.S., is barred from obtaining permanent residence until the person remains outside the U.S. for ten years. "Unlawful presence" is different than being illegal. We link to a myriad of memos from the USCIS and the State Department defining "unlawful presence" from our "Green Card".

However, a person may apply for a "waiver" of the ten-year bar using form I-601 if their inability to return to the U.S. would cause their U.S. citizen or permanent resident spouse or parent(s) "extreme hardship". Extreme hardship must be more than the usual hardship that spouses and parents and their sons and daughters would experience if they were separated for ten years or if their spouse or parents had to relocate with them to their home country. Therefore, it is of the utmost importance that the I-601 be accompanied by more evidence than simply that the U.S. citizen spouse would miss the foreign-born spouse if he had to return to, let's say Mexico, for ten years. While family separation is an important factor in demonstrating extreme hardship, it is usually not sufficient in itself to result in the waiver being granted by the USCIS. Consider financial factors: Is the foreign-born spouse the family's breadwinner? Could the citizen spouse continue to pay the mortgage, the rent, the car payments, etc.?

Although hardship to U.S. citizen children cannot be taken into account, the number and age and circumstances of the children may dramatically increase the level of hardship to the U.S. citizen spouse. If the couple has young children, how can the citizen spouse be expected to financially support and take care of the children all by herself? Do the children attend public or private school? How are their grades? Do they participate in extracurricular activities? How will they be affected if they are raised by only one parent?

If the foreign-born spouse has parents in the U.S. who are citizens or permanent residents, it is important to document whether the parents are self-supporting or are financially dependent on their undocumented son or daughter. How is their health? Do they drive? Do they live together with the rest of the family? How close are they to their grandchildren?

Our I-601 waiver applications are usually accompanied by 20-30 exhibits. It is important to include photos and to paint a picture of the family so that the USCIS examiner can properly gauge the level of hardship that the ten-year bar would impose on the U.S. spouse and/or parents.

How long must foreign-born spouse remain abroad while his waiver application is being decided by the USCIS? Since the State Department decides the immigrant visa application and the USCIS decides the I-601 waiver, the entire procedure may sometimes take several months. The U.S. Consulate and USCIS office in Ciudad Juarez, Mexico have, to their credit, instituted a one-day procedure to decide waivers and immigrant visas.

As a former INS Trial Attorney, I am intimately familiar with the extreme hardship standard. While there are no guarantees regarding I- 601s, we would not send a client abroad with a waiver application in hand unless we felt that he or she had an excellent chance to have his or her I-601 approved.

* Cancellation of Removal - Nevertheless, some families are so nervous about sending a spouse (or son or daughter) abroad that they prefer to apply for a green card in the U.S. through an Immigration Judge. The conditions for achieving permanent residence through cancellation of removal are as follows:

The person must be continuously physically present in the U.S. for ten years or more; The person must be of good moral character during the past ten years; and The person's departure from the U.S. must result in "exceptional and extremely unusual hardship" to their U.S. citizen or permanent resident spouse, parents and/or children.

What happens if the Immigration Judge (and/or the Board of Immigration Appeals) does not grant your Application for Cancellation of Removal? You still have the option of departing the U.S. voluntarily and applying for an immigrant visa and an I-601 waiver abroad under the lesser hardship standard.

About The Author

Carl Shusterman is a native of Los Angeles and a 1973 graduate of the UCLA School of Law. He served as an attorney for the Los Angeles office of the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered the private practice of law. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals, Ninth Circuit and the Supreme Court of the United States. Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's national Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He serves as a member of the Immigration and Nationality Law Advisory Commission for the State Bar. He is a member of the Executive Committee of the Immigration Section of the Los Angeles County Bar Association and of the American Bar Association. Mr. Shusterman is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee On Immigration in Washington, D.C.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.