Provisional Hardship Waivers

1-    Question: I am a U.S. citizen, married to an undocumented alien and I wish to file a hardship Waiver for my wife. I am also filing for her daughter, a twelve year old. However my former girlfriend has recently charged me with domestic violence. If a Judge finds me guilty, will it affect my application for my wife and step daughter?

Answer If the Judge finds that you committed domestic violence, because you are a U.S. citizen, you cannot be deprived of your citizenship. However, you may then be found to be under the strictures of the Adam Walsh Act which would require you to prove that you would not to be a threat to your wife and step daughter. If you are convicted, the Immigration Service will presume that your previous character disorder might be a menace to your wife and step daughter. The burden of proof would shift to you to convincingly demonstrate that you would not harm your wife and step daughter. You may have to see a psychoanalyst or psychologist to evaluate your character to affirm that there would be no chance that your wife and step daughter would be in danger.

2-    Question: I understand that to obtain a Pardon or Waiver, my U.S. citizen spouse must demonstrate she would suffer extremely unusual hardship, if I were deported. How can she prove this? 

Answer:  Your spouse would be well advised to see a psychoanalyst or a psychologist in order to obtain an evaluation of the psycho emotional effects that your spouse would face in the event you are deported from the U.S. Clinical interviews, review of physical and emotional symptoms and considerations of possible clinical measures, including appraisal of the likely psychological impact on your wife with respect to the anxiety of her children would be a part of the process. Stress, anxiety, depression resulting from the uncertain future if the alien spouse were to be removed would be evaluated, as well as the family’s dynamics. The unpredictable difficulties for your children such as the loss of medical care, fewer educational opportunities, sleep deprivation, impairment in social and/or academic functions, adjustment disorders, even the possibility of suicide are all relevant. Professional treatment and evaluation of these hardships would help to make the case for the proof needed to establish extremely unusual hardship. 

3-    Question: I entered the U.S. without a visa, my wife is a U.S. citizen and she applied for an Alien Relative Petition that was approved and her hardship Waiver application for me is pending. I had a conviction in my country for petty larceny. Can I still get my residence?  

Answer: A foreign conviction is basically treated the same as if the crime occurred here. A foreign crime is equated with a U.S. crime. You will need to get a Certificate of Disposition from your country and have a lawyer evaluate the import of the crime asif it happened in the U.S. A petty larceny crime would not usually be an impediment to your permanent residence. However serious crimes like domestic violence, assault with a weapon, money laundering, would be obstacles to getting residence here. Aggravated felonies or the commission of more than 3 misdemeanors could be a permanent bar to admission to the United States.

4-    Question: I am an undocumented alien, living in the U.S. and I have recently married my same sex partner in a State where it is legally allowed. She is a U.S. citizen. Can I get my permanent residence now? 

Answer:  The immigration laws are in a period of flux. Several States now permit same sex marriages, but the Immigration Service does not yet recognize same sex marriages. However, in this period of change the Immigration Service has indicated it will not remove aliens married to U.S. citizens even though they may be excludable.  In the absence of a clear government policy the Immigration Service has adopted a “wait and see” attitude because ultimately the U. S. Supreme Court may take up this issue and that decision should then resolve the dilemma.