When should the applicant worry about the ‘permanent bar’?
Applicants who entered the United States without inspection after having accrued more than one year of unlawful presence are subject to a ‘permanent’ (lifetime) bar. Applicants need to think long and hard about their travel history. Important family events such as weddings or funerals can lead applicants to leave the United States and come back without even realizing that this will subject them to a lifetime bar.
If the waiver is not granted, the applicant will not be able to join the sponsor in the United States. So one of two things will happen:
- Either applicant and sponsor will live apart (separation);
- Or the sponsor will depart the United States to live abroad with the sponsor (relocation)
Generally, applicants present one of these two scenarios as the future of their family relationship with the sponsor, and U.S. immigration agencies assess the level of suffering (‘hardhsip’) created by the new situation on certain family members (called ‘qualifying relatives’). If the level of suffering is deemed too severe and if the applicant is deemed worthy of receiving a pardon, then the waiver is granted.
Who are the ‘qualifying relatives’ for the purposes of an I-601A waiver?
Applicants, sponsors, and other family members will suffer from the separation of applicant and sponsor or their relocation outside the United States. However, only the suffering experienced by the spouse and/or the parent of the applicant will be taken into account, provided they are either a U.S. citizen or a Green Card holder. In other words, qualifying relatives are the USC/LPR Parent/Spouse of the applicant. Children that the applicant and the sponsor have had together or seperately, even U.S.-born children, are not qualifying relatives for the purposes of an I-601A waiver and can only be used tangentially to prove extreme hardship.