Opinion

Repackaging and refiling a hardship/fraud waiver

IMMIGRATION CORNER - Edgar De Castro - The Philippine Star

June 5, 2016 | 12:00am

Dear Atty. Gurfinkel:

When I filed for adjustment of status, USCIS said I committed fraud when I entered the US under an assumed name. They required me to file a Form I – 601 (Waiver of Inadmissibility), which they denied, stating that my spouse would not suffer enough “extreme hardship.” My lawyer appealed my case to the Administrative Appeals Office in Washington DC (AAO), which dismissed my appeal.

When I asked my lawyer what I should do now, he said “just wait for an amnesty or to be put in deportation/removal proceedings, and then try again for the waiver in front of an immigration judge.”

Is there anything else I can do, aside from waiting for an amnesty or to be deported?

Very truly yours,

E.S.

Dear E.S.:

You may want to consider repackaging and refiling your hardship waiver with USCIS. There is no immigration law which prohibits a person from filing a second or new hardship waiver. However, you have to provide new evidence, or you make a better showing of extreme hardship. Our office has done this many times for people, who came to us with a previous denial. We were able to refile the waiver and the case got approved.

There are several situations where a hardship waiver may be required, such as when a person commits fraud, is subject to the 3/10 year bar, or is pursuing a provisional waiver, to name a few. In order for a person to prevail on a hardship waiver, they must demonstrate “extreme hardship” on a spouse or parent who is a US citizen or lawful permanent resident (“qualifying relative”).

In many cases, the qualifying relative is truly suffering extreme hardship, but the case is not properly packaged or presented, and is therefore denied. I have featured stories of several people on Citizen Pinoy, where the qualifying relative was truly suffering extreme hardship, but the case was denied because their attorney submitted a short, two-page declaration from the qualifying relative that really did not bring out the true story and full picture of the qualifying relative’s situation, stress, ailments, anxiety depression, etc. While there are a number of factors that are considered in evaluating extreme hardship, it really boils down to making the qualifying relative’s situation into a tearful teleserye. You almost have to make the officer cry over the qualifying relative’s trials and tribulations.

In those cases, rather than filing an appeal on the very skeletal presentation of extreme hardship, we filed a new fraud waiver, with a lengthy and detailed affidavit from the qualifying relative (whether it was the person’s spouse, parent, or both), fully bringing out the extent of the extreme hardship the qualifying relative was suffering. As a result, the case was approved.

In addition, maybe there are NEW hardships the qualifying relative is now suffering, that were not present when the original hardship waiver was filed. Maybe the qualifying relative was recently diagnosed with a new medical issue, has been hospitalized, or a previous ailment has gotten worse. Those sort of changes in circumstance could possibly justify the filing of a new hardship waiver, provided it is properly packaged and presented.

I want to be clear that I am not guaranteeing a second hardship waiver will be approved. It certainly depends on the hardship being suffered by the qualifying relative and the discretion of the officer who adjudicates the waiver: is the officer tough and strict, or compassionate and understanding?

However, if your hardship waiver was denied, and you are being told to “just wait,” you may want to seek the advice of another attorney, who can evaluate your qualifying relative’s hardship situation, and determine if a hardship waiver can be repackaged and better presented, or if there are new hardships to be presented. Don’t give up hope!

WEBSITE: www.gurfinkel.com

Four offices to serve you: PHILIPPINES: 8940258 or 8940239; LOS ANGELES; SAN FRANCISCO; NEW YORK: TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465).