Is it true that we can’t claim extreme hardship to our children for the provisional waiver?

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Question:

I’m a U.S. citizen, married to a man from El Salvador. He’s been living here for the last eight years. Because he entered the U.S. illegally, attorneys have told us he is not eligible to adjust status in the U.S., and would have to go to the U.S. consulate in El Salvador to apply for his green card – where they might not let him come back for ten years. But now we’ve heard that this new, provisional waiver might let us apply in advance for him to be allowed straight back into the U.S. with his green card, if he can prove extreme hardship to his U.S. spouse or parents. That’s very exciting; but his only U.S. citizen relatives are me and our two children. I will suffer if my husband is denied the right to stay in the U.S., but no worse than anyone else in my shoes would, I guess. It’s our kids who would really suffer. I work full-time, but my husband works only part-time, and is always at home in the afternoon to spend time with them. Plus, our younger child is mentally disabled, and my husband understands and can communicate with him better than anyone. I can’t believe I’m reading the accounts of this waiver right; is it true that the hardship my children would suffer doesn’t count here?

Answer:

In literal terms, you are reading things correctly. To succeed in an application for a provisional waiver of unlawful presence, it is necessary to prove that denial of the immigrant visa (green card) would cause extreme hardship to one’s U.S. qualifying relatives, namely a U.S. citizen spouse or parents. Showing extreme hardship that your children would directly suffer if your husband is denied the waiver and green card will not help your case.

But that doesn’t mean your children are out of the picture entirely. Their situation can be factored into the waiver application indirectly, in its impact on you. For example, what about the added hours that you might have to take on at work in order to pay an afternoon caregiver if your husband were to leave the U.S. but you and the children stay behind? Or the work hours you would have to drop in order to stay at home yourself and care for the kids? Or what about the mental anguish that you would suffer watching your children’s grief at being separated from their father? (If this is something that you have or will talk to a counselor or therapist about, a statement from that professional will help bolster the waiver application.)

Talking to an experienced immigration attorney – one who has handled this type of waiver before – would be an excellent idea, to help you develop more evidence of the extreme hardship you might suffer, and to help prepare a convincing waiver application and other documents. These waiver applications are commonly very thick – a good lawyer will draw out all elements of your story, so that the immigration officials are actually touched by the human side of your situation.

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