Provisional Waiver for Same Sex Couples
By Reuben Seguritan
Individuals who are not eligible to adjust their status have to depart the US to process their immigrant visa at a US embassy or consulate abroad. The problem is if they leave, they will be subject to a 3 year or 10 year bar from reentering the US because of their unlawful presence. The 3 year bar is imposed if they have overstayed for more than 6 months. The 10 year bar is imposed if they have overstayed for more than a year.
Examples of individuals who are not eligible for adjustment are crewmen, those who entered without inspection, and those who entered as fiancé(e) but did not marry their petitioner.
Fortunately there us a process available to waive their unlawful presence. They may file for an I-601A provisional waiver.
The I-601A Application for Waiver of Grounds of Inadmissibility is a way for the undocumented immigrants to show that their qualifying US citizen or lawful permanent resident (LPR) relative/s would be under extreme hardship if they are not allowed to re-enter the US or remain in the US with them. There is no one definition for what constitutes extreme hardship but various cases of the Board of Immigration Appeals (BIA) have stated that there is a non-exclusive list of factors that will be considered to determine whether the illegal immigrant can remain in the US or re-enter the US on the ground of extreme hardship to his/her qualifying relative.
These factors are: the presence of LPR or US citizen family ties to the US; qualifying relative’s family ties outside the US; conditions in the country or countries which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries; financial impact of departure from the US; significant conditions of health and the unavailability of adequate medical care in the country which the qualifying relative would have to relocate to if the immigrant’s waiver is denied; and any other factors peculiar and relevant to the case such as being a same-sex couple or being members of the LGBT community.
The USCIS has recognized the inherent difficulty that same-sex couples and members of the LGBT community face in the world. It has explicitly stated that “social ostracism or stigma based on gender identity or sexual orientation should be considered in waiver applicants.”
The waiver application of the LGBT undocumented immigrants should clearly show the challenges they face in their country because of their sexual orientation or gender identity. They include instances of abuse of any kind, including sexual, emotional, physical and psychological and include records of wounds, hospitalization, treatment and scars. The waiver applicants should describe the problems they faced in the community and how they were treated differently because of their sexual orientation. The waiver application should narrate in detail how they became aware of their sexual orientation and gender identity; their fears, hopes and dreams during those early days and; how these have changed throughout the years.
What is crucial in the waiver application is the detailed description of what their life was like before and after the US citizen or LPR spouse came into their lives. The dangers and discrimination faced by members of the LGBT community in the country of origin should also be enumerated. These will include the lack of legal recognition of LGBT relationships in marriage, inheritance rights, visitation rights, right to adopt children, psychological trauma by daily danger of fines, flogging, death and inability to find work.
Reports from the country of origin would also be helpful because it is not common knowledge in the US how some countries have cultural norms and restrictions which do not recognize the LGBT community or outwardly reject them and impose the death penalty on them. If the waiver applicant and his spouse are of different races, this would also be significant because the difference in race may place the couple in a worse situation than if the same sex couple were of the same race.
A psychological evaluation should be included in the waiver application to establish the fear, depression and emotional and psychological state of the US citizen/ LPR spouse of the waiver applicant because of the possibility that the undocumented immigrant would be deported and no longer with the US citizen/ LPR spouse. All of these details should be clearly explained in order to convince the USCIS that they should remain in the US or be allowed to return to the US, as the case may be, in order to stay with their US citizen or LPR spouse.