Your spouse was deported and you’re a US citizen - Atty. Mike Templo

Posted at 08/27/2009 12:09 AM | Updated as of 08/27/2009 12:50 AM

This week I consulted with a young couple with one child who are facing the prospect of living apart and becoming a broken family. The husband, who was a long time undocumented alien, was ordered removed by an Immigration Judge and was deported recently to the Philippines and was banned from re-entering the Untied States for ten years. The wife and child are both American citizens.

Under U.S. Immigration laws, an alien is barred from re-entering the United States for a certain period of time if that alien overstays in the United States for more than 180 days, or committed misrepresentation or fraud. The barring period can be either 5, 10, or 20 years depending on the violation and circumstances. In our case, the husband was ordered removed and was subsequently deported back to the Philippines. He is barred from re-entering the United States for ten years.

Being barred for a decade can feel like forever, especially for a young couple with one child. For the husband, there would be no way to re-enter the United States during this period unless he applies for a hardship waiver. The granting of a hardship waiver is entirely within the adjudicating or consular officer’s discretion. As such, the hardship waiver application must be complete with supporting documentation. In assessing this type of application, several factors are taken into consideration such as the moral character of the husband, how long ago the deportation occurred, length of time the husband had been in the United States, whether he knew he was deported, etc.

Not everyone can apply for a waiver. Only immigrant applicants who have either a spouse or parent who is a U.S. Citizen or green card holder can apply for a waiver. In our case, the husband would be eligible to apply for a waiver since his wife is a U.S. Citizen being born in California.

In proving a hardship waiver application, it must be established that if the alien is not allowed to return to the United States, “extreme hardship” will result to the U.S. citizen spouse. Many people overlook this and confusingly assume that the extreme hardship requirement is to the deported alien. In our case, the waiver application must show that the wife will suffer extreme hardship if her husband will not be allowed back into the United States. Also, extreme hardship means a situation that is uncommon, unusual, and not just simply living away from each other or feeling depressed.

Resulting extreme hardship can take many forms. It could take the form of affected health where it might be the case that the wife suffers from a medical condition that requires treatment unavailable in the husband’s country. It could be in the form of financial or employment disadvantages because it would be hard for the wife to find a job in the husband’s country that would suit her qualifications or licenses possessed. It could be in the form of family considerations where the wife has completely no family in the husband’s country. It could be loss of access to higher education or receipt of poorer quality education in the husband’s country. It could take the form of differences in culture, and so on and so forth.

With whatever reason that is submitted as the resulting hardship, it must be properly backed up by documentary proof. Mere allegations with no supporting evidence will not help. Putting together a hardship waiver application can be tedious and complicated. It would be to your best interests and would increase your chances if you seek the assistance of a competent attorney.

 

Announcement: This week on Crossing Borders, Atty. Mike Templo will be interviewing former Philippine President Fidel V. Ramos.

 

Atty. Michael Templo is an attorney admitted to practice law in New York State and Federal Courts and is a partner at Templo & Templo http://www.templolaw.com with offices in New York, USA and Makati City, Philippines. Atty. Templo specializes in US Immigration matters. Atty. Mike Templo is also a host for the weekly show “Crossing Borders” which airs every Thursday at 10:30PM on ANC and 2:30PM on TFC crossingborderstv.multiply.com. The discussion above is not intended as legal advice, and cannot be relied upon for any purpose without the services of a qualified professional. For your comments and questions, Atty. Templo can be reached at [email protected] or log on to www.templolaw.com.