Can I apply for waiver if my US citizen sibling files for me?
Some think that marriage to a U.S. citizen and other family relationships will automatically result in access to a green card, but there are barriers that may prevent or delay these family members from becoming lawful permanent residents. Among these barriers are the “three- and ten-year bars.”These obstacles can be devastating. For some, leaving the country was a necessity, and this legal issue is significant. If you need an immigration attorney to help you with a 3-10 year bar, contact The Law Offices of Cheryl R. David.
If an immigrant has been in the United States illegally and then left the country, they are sometimes barred from reentry. A bar can cause a barrier to obtaining a green card even when married to a U.S. citizen or another family member of that citizen. Many people who qualify for green cards based on their relationships to U.S. citizens or lawful permanent resident relatives, when leaving the U.S. to obtain their green card, find themselves in a very complicated situation. They must leave the country to apply for their green card overseas; however, when they leave, they are barred from re-entering the U.S. for three or ten years.
In a policy change first announced by USCIS in 2022 and later affirmed in 2023 by immigration courts, the 3- and 10-year bars may now run even while the applicant remains inside the United States. This shift means that if a person previously triggered a bar by departing the U.S., and later reentered unlawfully, the clock on their bar may continue to run from within the country, depending on their specific circumstances. This development significantly impacts waiver strategy and timing.
The United States Department of Homeland Security can waive the bar if an applicant can establish that extreme hardship would result to a spouse or parent if the applicant is not permitted to reenter. Hardship to the immigrant himself or his children is not a factor. Waivers are possible but can be difficult to obtain. Current USCIS guidance recognizes that extreme hardship may be demonstrated based on either separation from the qualifying relative or the potential hardship of the qualifying relative relocating abroad—applicants do not need to prove both. Additionally, an appeal of a denied waiver can take up to 37 months or longer before adjudication.
Examples of extreme hardship include:
Extreme hardship is determined by an analysis of the totality of the circumstances affecting the U.S. citizen or permanent resident relative who filed the petition. Generally considered factors are family ties, age, health, financial impact, and home country conditions. You will be required to provide evidence of the extreme hardship. First, your qualifying relative must provide a personal statement discussing the hardship and stating the anticipated effects of your absence. You should also consider submitting a personal statement to support the arguments made by your qualifying relative.
Usually, applicants must apply for the waiver from outside the United States and may have to wait a long time for approval. Sometimes immigrants have to choose between leaving the country and taking the risk that they might not be able to return, or remaining in the country illegally. This can result in substantial family hardship before reentry.
Our law firm can explain all the opportunities and risks associated with consular processing, help you through the entire procedure, and discuss whether this is a good option. For an initial consultation with a skilled immigration lawyer, contact the Law Office of Cheryl R. David in New York.
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