An Introduction to Hardship Waivers

A person may be found to be inadmissible to the United States for many different reasons.  These include three- and ten-year bars for unlawful presence; crimes involving moral turpitude (CIMTs); prostitution; simple possession of less than thirty grams of marijuana; certain medical inadmissibility; and misrepresentation. To overcome such an inadmissibility, an I-601 Waiver will need to be filed.  The primary basis to qualify for an I-601 Waiver is to show “extreme hardship” to a qualifying relative.  In some cases, one may also qualify by showing there has been criminal rehabilitation. If someone had been previously removed from the United States, an I-212 Waiver for prior removal is necessary and is not based only on extreme hardship to a qualifying relative, although such a hardship can be used to strengthen a case.

Sometimes there are complications that result in a waiver not being an option. Some of the worst complications are those that create permanent inadmissibility. These include false claims to U.S. citizenship, drug convictions or guilty pleas after age eighteen, gang memberships, and previous findings of marriage fraud or frivolous asylum. There is very little to be done after a finding was made in a prior immigration proceeding that there was a frivolous asylum claim made after April 1, 1997.  However, in other instances it may be possible to challenge a finding of permanent inadmissibility.  For example, it may actually be possible to show that a finding of marriage fraud was an error, especially if the marriage is still intact. It may be possible to argue that a vague drug crime is not a crime pertaining to possession of a controlled substance. A person who had made a claim to citizenship may have been completely unwilling. A person may truly not be a gang member. These are difficult cases but may be worth pursuing as it may very well be someone’s only opportunity to return to his or her family.

The waiver process changes constantly, as does immigration law itself. If you feel that you or someone you know requires assistance in this area please contact our office.

Update on DAPA and Expanded DACA

In November of last year, President Obama announced a series of immigration policy changes.  Many of the changes, relating primarily to employment-based immigration, were uncontroversial and are going forward as planned.  For example, the administrative process for granting permanent residency (“green cards”) for certain workers is being streamlined to avoid backlogs in processing these applications.  In addition, the President directed USCIS (United States Citizenship and Immigration Services) to issue a memorandum clarifying what types of “specialized knowledge” applicants for L-1B nonimmigrant petitioners need to demonstrate.

Two of the provisions announced in November have met significant opposition.  The first is the expansion of DACA, or Deferred Action for Childhood Arrivals.  DACA currently allows non-citizens who were brought to the United States as children, and who meet all other program requirements, to be granted lawful presence in the U.S. for a renewable period of two years.  Being granted DACA allows the recipient to live without fear of removal, and makes work authorization available for the two-year period.  The expansion of DACA would increase the renewable time period of lawful presence to three years.  It also seeks to eliminate the requirement that the candidate be born before June 15, 1981, thereby enlarging the pool of eligible applicants.  It is important to note that under neither form is DACA a grant of lawful permanent residence or “asylum” of any kind.

The Executive Action also created a new program, entitled Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA (initially called Deferred Action for Parental Accountability).  DAPA would also grant lawful presence and eligibility for work authorization for up to three years, but to parents of U.S. Citizen or Lawful Permanent Resident children.  The qualifying son or daughter must have been born on or before November 20, 2014, when the announcement was made, and the parent must have been continuously present in the United States since before January 1, 2010.  As with DACA, other qualifications apply, including successful completion of a background check.  It is estimated that over four million people qualify to receive DAPA benefits.

The States Respond

Within hours of President Obama’s announcement last November, Maricopa County, Arizona Sheriff Joe Arpaio challenged the President’s plan to defer deportations in a Washington, D.C., federal court, in a case named Arpaio v. Obama. The Washington, D.C. federal court promptly dismissed Sheriff Arpaio’s lawsuit. That decision is currently on appeal.

Shortly thereafter, representatives of 17 states filed a similar case in a Brownsville, Texas, federal court, with 9 other states later joining the lawsuit, in a case named Texas v. United States. The states sought an injunction to stop the implementation of DAPA and the DACA expansion.  Texas based its standing to challenge the policy on the alleged harm the state and its citizens would suffer if DAPA were put into place.  Texas currently uses taxpayer funds to supplement the cost of issuing driver’s licenses.  The theory was that since DAPA would entitle recipients to obtain licenses, Texas would either have to spend millions of dollars subsidizing licenses for non-citizens, or completely restructure their fee system.  The court agreed this was a specific potential harm that qualified the petitioning states the power to bring the suit against the federal government.

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