QUESTION: I am a U.S. citizen and my husband is in the U.S. illegally. I filed an I-130 and it was approved. It is my understanding the visa is available to him but my attorney advised me not to move forward with filing the Affidavit of Support or the DS-230 or go for the interview abroad. Why is this? The laws will not change for a longtime. Isn’t it better for my husband to go home and follow through with everything and appeal than to sit here in the U.S. and do nothing?

THE IMMIGRATION ANSWER MAN: This is one of those tough questions that do not have a one-size-fits-all answer. I meet couples like this all the time, where the foreign national is married to a U.S. citizen, but because they entered the U.S. without inspection, and are not eligible to be grandfathered under the 245(i) “amnesty”, they are not eligible to apply for a green card by filing for Adjustment of Status in the U.S. But since the foreign national has been unlawfully present in the U.S. for more than 6 months, they would be subject to a 3 or 10 year bar of inadmissibility if they leave the U.S.

This is one of those situations where you absolutely need an experience immigration lawyer that you trust. This is because some couples are eligible to apply for a waiver of inadmissibility based upon extreme hardship to the foreign national’s U.S. citizen or Permanent Resident spouse or parent. But extreme hardship is more than just the usual hardship caused when a married couple is separated from each other. There has to be other factors there in order for an adjudicator to determine that there is extreme hardship. Examples of additional hardship that would be considered are health issues, financial considerations, loss of opportunity for education, personal considerations such as close relatives in the U.S. and age of the parties, and other factors such as cultural, religious and ethnic obstacles. These are just some examples and as there is no limit to the type of hardship that can be shown to explain how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or permanent resident relative. The point is that each couple needs to have their particular situation assessed for the possibility of showing extreme hardship by a competent attorney they trust.

Even if you have some additional factors for hardship, there is always some risk in traveling abroad and applying for a hardship waive. There is no U.S. consulate in the world that approves all waiver applications they receive. So if you are going to apply for a waiver, you should make sure that you hire an attorney to help you put it together in the strongest way possible to increase your chances for approval. If the waiver application is denied, the foreign national will be stuck abroad.

Also, if the foreign national has entered the U.S. without inspection more than once, or has entered the U.S. without inspection after being removed by the U.S. government, then it may be that the foreign national is permanently barred from receiving a visa to reenter the U.S.

These are all factors that need to be discussed with your attorney. If you are not sure that your attorney is giving you the best advice, or that you have a stronger case for hardship than they say, then you always have the option to get a second opinion. However you should be careful to go to an attorney you trust, as some attorneys will send almost anybody abroad to apply for a waiver application. In my opinion that is much worse than an attorney who is overly conservative.

Visit my blog, The Immigration Answer Man at www.immigrationanswerman.com

Join me on Facebook at http://bit.ly/3iM38W

Connect with me on LinkedIn at http://www.linkedin.com/in/arisauer

Connect with me on Twitter at http://twitter.com/VisaLawAnswers

Ari Sauer is an attorney with Siskind Susser, PC. For Ari’s full bio, visit http://www.visalaw.com/ari.html. You can schedule a consultation with Ari or with one of Siskind Susser’s other attorneys by calling 1-800-343-4890 or 901-682-6455. 

* On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states fo New York and New Jersey. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.