I’m a U.S. citizen, married to an undocumented person from Nicaragua. Because she crossed the U.S. border illegally, we’ve been told that we can’t file for her green card through adjustment of status, so she’ll need to apply through a U.S. consulate – but that in order for her to come back, she first needs a waiver of her unlawful presence. We plan to file a provisional waiver in order to get an answer before she leaves. She will be trying to prove hardship to me (as her U.S. qualifying relative) if the waiver were denied. But I’m confused – should we be talking about how terrible it would be for me to stay in the U.S. and take care of our small child by myself if she were refused a U.S. green card, or how difficult it would be for me if I quit my job and we all moved to her small village in Nicaragua?
The short answer to your question is, “Both.” In order to apply for a waiver of unlawful presence (provisional or not), you can and should present alternate scenarios.
Fully develop your account of what it would be like to stay in the U.S. without your wife, while taking care of your child. Would you face financial hardship because of having to hire childcare while you work? Would you put your livelihood at risk because you’d want to make regular trips to Nicaragua? Does your child have any special medical, emotional, or academic needs that would make your task harder? (As you seem to understand, hardship to your child has, in legal terms, no direct bearing on this application – but it can have an indirect one, as you bear the brunt of dealing with the hardship that your child experiences as the result of its mother being absent.)
Then turn your thoughts to what it would be like for your family to pick up and move to Nicaragua in order to stay together. Where would you live? Is it safe, hygienic, or remotely similar to the life you are accustomed to? Do you yourself have any medical issues that would be inadequately treated there? Does your child have any such issues, thus causing you mental anguish as you deal with them? Do you speak Spanish?
The more you can think about your vulnerabilities and how they would be exacerbated by each of the scenarios you’ve described – and then document it with things like newspaper reports about the region of the country where you’ll be living, photos of your house in the U.S. and the place you’d likely live in Nicaragua, pharmacy records (if anyone is having to take anti-anxiety or antidepressant medications), doctors’ reports, affidavits and letters from teachers, counselors, friends, and more -- the more likely you’ll be to succeed with a waiver application. (Also, it sounds like this isn’t under consideration, but if your child might accompany your wife to Nicaragua, that might also be another scenario to explore.)
All that said, you should really do everything you can to afford an attorney for this part of the application process. As you can tell, preparing a waiver application involves far more than filling out a form. A good lawyer will help you delve within your mind and your life circumstances to think of areas of potential hardship that you might not have otherwise thought to mention; and then present it as a cohesive account, with convincing documentation to back it up.
See the “Inadmissibility and Waivers” section of Nolo’s website for more information on this interesting area of the law.