The path from undocumented immigrant to lawful permanent resident can be full of obstacles, especially if the undocumented immigrant enters the United States without a visa and remains in the United States without status. Many believe that they have no chance of becoming a permanent resident due to their unlawful entry and presence. Others believe that they may simply become permanent residents when their twenty-one-year-old United States citizen children submit a petition for them. Regrettably, both undocumented immigrants here are wrong; they must submit a waiver before becoming permanent residents.
Fortunately, applying for a waiver can be simple enough for many groups of undocumented immigrants. An undocumented immigrant merely needs to have a petitioning relative (such as a twenty-one-year-old United States citizen child) and a “qualifying relative” (who must be a United States citizen or lawful permanent resident spouse or parent) who would suffer extreme hardship in his or her absence. The United States government considers five categories of extreme hardship (including extreme health hardship, extreme emotional hardship, extreme economic hardship, extreme educational and professional hardship, and extreme safety hardship) the “qualifying relative” would suffer in the undocumented immigrant’s absence. USCIS also considers other “particularly significant” factors, including “substantial displacement” of the care of United States citizen children and extreme health conditions that the children might suffer. Unfortunately, certain groups of undocumented immigrants would not qualify for a waiver because, while they may have a relative who can petition for them (often a United States citizen child), they do not have a “qualifying relative” for the purposes of a waiver.
Are there exceptions to the rule requiring a “qualifying relative” for a waiver? Sadly not. However, while there are not per se exceptions to this rule, there are certain limited circumstances in which a waiver can continue in the absence of a “qualifying relative.” For example, if an undocumented immigrant submits a waiver listing her United States citizen spouse as a “qualifying relative” but he subsequently dies, the undocumented immigrant could request a humanitarian reinstatement substituting her United States citizen child or children as “qualifying relatives” for the waiver. Because this circumstance is limited, we recommend that you consult an immigration attorney before proceeding if you believe it could apply to you.
While United States citizen children are not “qualifying relatives” for Provisional Unlawful Presence waivers or Waivers of Inadmissibilities, this does not mean that the United States government never considers extreme hardship to an undocumented immigrant’s United States citizen children. In certain processes, such as Cancellation of Removal before an Immigration Judge, an undocumented immigrant could win her case if the judge finds that her United States citizen children would suffer extreme hardship in her absence.
If you have a “qualifying relative” (United States citizen or lawful permanent resident spouse or parent) who would suffer extreme hardship if you left the United States, you may be eligible for a waiver. Waivers can be delicate and nuanced processes and if you believe you may need one, you should seek out an immigration attorney right away. Wilson Law Group has a long history of guiding clients to permanent residency using these waivers. If you have questions, please call our office at 612-436-7100 to schedule a consultation with an attorney. The idea of a waiver may seem daunting, but we are here to help you navigate the system.