I’m a U.S. citizen, married to a woman from Guatemala. Her mother is a U.S. citizen, having received asylum in this country; but is in poor health and not working. So, it makes more sense for me to file the visa petition to help my wife immigrate. Here’s the problem: My wife entered the U.S. illegally, and has been here for at least six years. So, as I understand it, we are going to need a waiver of her unlawful presence in order to get her a green card. We’d all prefer that she file for a provisional waiver before leaving the U.S., so that we’ll have some assurance that she won’t get denied and blocked from returning for several years. But we’re confused by the waiver requirement that she prove hardship to her U.S. citizen relatives. I will be very unhappy if she (and maybe me, too) must move to Guatemala, but I’m in good health, with a job I can do anywhere I can plug in a computer, so I’m not sure we can prove extreme hardship to me. But my wife is the primary caretaker for her mother, who needs daily injections and so forth. Can we base the waiver on that hardship even though I’m filing the visa petition?
The short answer is yes, an applicant can obtain a provisional waiver of unlawful presence by showing extreme hardship to a qualifying U.S. spouse or parent who is NOT the visa petitioner in the case.
You would want to prove both the extreme hardship that your mother-in-law would experience if your wife were to be denied the green card and move back to Guatemala AND the extreme hardship that she’d face if, upon the denial, she moved to Guatemala with your wife. In either case, think about the detriment to her health and mental state, her financial inability to bring in outside help, and so on.
But don’t count yourself out of the equation altogether. There is no set list of the ways in which an applicant can prove extreme hardship, and it might be worth trying to show hardship to you as well as to your mother-in-law.
For instance, is there a possibility that your wife would leave the U.S. but you would stay here and assume part of the care of your mother-in-law? That could certainly constitute a hardship for you. Or, if you moved to Guatemala, what significant community activities, networking opportunities, and so forth might you miss out on? Does your family have any genetic predispositions that could actually result in your developing health problems or receiving inadequate treatment in Guatemala?
Consulting with an immigration attorney might help you fully think through the various hardships that both your wife’s U.S. citizen mother and you would face if she were denied the provisional waiver. These waivers aren’t easy to get, so the more legal advice and professional assistance, the better. Also, for more information, see the “Waivers of Inadmissibility” page of Nolo’s website.