Thứ Năm, 19 Tháng Mười Hai 201300:00(Xem: 21545)
We received this inquiry from a listener. He said:

I came to the US on a non-immigrant visa three years ago and I remained here, out of status, after the visa expired. Last year, I married a lady who was born in the US. She’s not Vietnamese and she has two children from a previous marriage. I’ve heard that my unlawful presence will prevent me from applying for a Green Card in the US, and if I return to Vietnam to apply for an immigrant visa, I will not be able to re-enter the US for 10 years. What can I do?

There are thousands of people who have the same problem as this listener. They cannot adjust status in the US because they have been here unlawfully for more than six months and if they return to their country to apply for an immigrant visa, they face the possibility of a 3 or 10 year bar to re-entry.

People like this have only two options. One option is to remain in the US illegally, with no possibility of getting a Green Card. The other option is to apply for a Provisional Unlawful Presence Waiver. 

Immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. This allows them to apply for a waiver in the United States, before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.

If CIS approves the waiver request, and if unlawful presence is the only problem, it is almost certain that the US Consulate in Vietnam will approve the immigrant visa application. The applicant can remain in the US until it is time to go back to Vietnam for the visa interview.

First of all, the US citizen sponsor must file an I-130 visa petition for the alien spouse. After CIS approves the I-130, they will send the petition to NVC (the National Visa Center).

The applicant must pay the immigrant visa processing fee to NVC and must inform NVC that he intends to submit an I-601A to CIS and will apply for a visa in Vietnam.

The most difficult part of filing the Waiver Request is showing that the denial of a visa would cause extreme hardship for their U.S. citizen relative. Extreme hardship is defined as hardship going beyond that normally suffered by a family when there is prolonged separation. Extreme hardship can be the result of health issues, emotional and psychological issues, financial issues, conditions in Vietnam, family ties in the U.S. and abroad. There is no magic formula and each case must be evaluated on its own individual merits.

Factors that USCIS considers when determining extreme hardship include Health, Financial Considerations, Education and Personal Considerations. Keep in mind that CIS wants to see how the US citizen relative – not the alien spouse – would suffer extreme hardship if the immigrant visa is denied.

The listener who sent us the inquiry said he married a lady with two children from a previous relationship. So in this case, the focus of the Waiver Request must be on the extreme hardship caused to the US citizen wife and children if they had to re-locate to Vietnam to be with the alien husband.

Do the wife and children have any health issues that cannot be treated in Vietnam? Need doctor’s report to support such claims.

Can the wife get employment authorization and earn enough money in Vietnam to meet financial obligations in the US, such as mortgage payments?

Can the couple afford to send the two children to an international school in Vietnam? Need evidence to show that tuition may be $20,000 or more per year for each child.

Can the wife and children function in Vietnam since they cannot speak Vietnamese?

Would the family have enough income to maintain a suitable standard of living in Vietnam, buy a car, etc. Need to provide evidence of living and transportation expenses in Vietnam.

In this case, CIS will probably agree that it would be an extreme hardship for an American woman and her children to relocate to Vietnam, and the Waiver Request would probably be granted. All Waiver Requests must be supported by documentary evidence.

Q.1. In the case we just discussed, Would a court allow the wife to take the two children abroad?
A.1. The lady’s ex-husband would need to give up his visitation rights. If he is not willing to do that, then the court would probably not allow the children to be removed from the US.

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Q.2. In Saigon South, there are thousands of foreign families with their children. They all seem to enjoy a high standard of living and the children attend expensive international schools. How could “extreme hardship” be claimed in a situation like this?
A.2. In these foreign families, the husbands are usually employed by large corporations whose headquarters are in Korea, Taiwan or Japan. The employer pays for rent and school fees in Vietnam. There are almost no similar employment opportunities for Americans in Vietnam.

Q.3. In the case we discussed this evening, would CIS want to deport the husband since he has been in the US illegally for a few years?
A.3. At this time, the policy is that immediate relatives of US citizens can remain in the US until some way is found for them to become permanent residents. However, if they are in unlawful status, they are not eligible for any immigration benefits and cannot get work permission or advance parole.


Immigration Support Services-Tham Van Di Tru

9070 Bolsa Avenue, Westminster CA 92683 (714) 890-9933 
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