In my column This week's Consulta Migratoria® is a general response to readers' questions.
Each case is different and the answers vary depending on the individual's immigration history. Please consult with an immigration attorney for personalized legal advice before beginning any proceedings.
This is the column:
In 2005 I entered the United States illegally for the first time and stayed. Now I am married to an American and he is petitioning me. I have been told that I have to ask for a pardon for living in the country illegally and show extreme hardship to my husband. I have never been arrested, I have paid my taxes and this is the first time I am asking for papers. How do I demonstrate hardship to my husband? -Guadalupe C.
Guadalupe, since you have been living illegally in the United States since 2005, you are subject to the penalty law, which does not allow you to return to the country for a period of 10 years, unless you can obtain a provisional waiver. Please note that you must apply for a pardon before traveling abroad to apply for an immigrant visa.
Currently, to apply for a provisional waiver of the punishment law, you must show that denial of reentry would cause extreme hardship to a U.S. citizen parent or spouse. But soon, the law will change to include the extreme hardship requirement for spouses or parents who are permanent residents of the United States.
According to the U.S. Citizenship and Immigration Services (USCIS), your U.S. citizen spouse could demonstrate extreme prejudice in a number of ways, including the following:
A. HEALTH - Being under specialized treatment for physical or mental conditions; availability and quality of such treatment in your country; knowledge of the duration of treatment; having a chronic or acute illness, either long or short term.
B. FINANCIAL CONSIDERATIONS - future employability; loss of employment due to sale of home or business or termination of practice; declining standard of living; ability to recoup short-term losses; cost of necessities such as special education or therapies for sick children; cost of care for family members (e.g., elderly and ill parents).
C. EDUCATION - Loss of opportunity for further education, poor quality or limited schooling options; interruption of current program; requirements to receive an education in another language or culture with loss of time and grade; availability of special requirements, such as training programs or exchange internships in specialized fields.
D. PERSONAL CONSIDERATIONS - Close relatives in the United States and/or your country; separation of spouse/children; ages of children of interested parties; length of time residing within the United States and existing ties within a community.
E. SPECIAL FACTORS- Cultural, language, religious, and ethnic barriers; fear of justifiable persecution, physical, or accidental harm; social ostracism or stigma; access to social or structural institutions.
F. Any other situation that can help your spouse meet the specifications of severe problems or extreme hardship.
In order to be approved for a waiver, you will have to present evidence to USCIS that proves that your spouse would suffer extreme hardship if you were not granted permanent residence.
In my next Consulta Migratoria® column I will explain the kinds of evidence you could send to the federal government when you file your application for a provisional waiver of the penalty law.
The process for obtaining a provisional waiver of the punishment law is complex. You should consult with an immigration attorney to carefully evaluate your case to determine if you are eligible to apply.
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