Waivers — where an entity is entitled by law to something but chooses to forgo it. In the immigration context, waivers are granted by the various agencies to allow applicants to obtain benefits to which they would not normally be entitled, usually by showing “extreme hardship” to a certain U.S. citizen or legal permanent resident relative. In other words, the agencies could refuse the benefits, but choose not to because such refusals would cause extreme hardship.
At Abrams & Abrams we have filed hundreds of waivers, most commonly waiving an applicant’s unlawful presence in the U.S. after entering without permission or by overstaying a lawful entry. Other often waivable acts include fraud and misrepresentation, outstanding orders of deportation, and criminal activity.
The morass of laws, regulations, memoranda, and local policies that determine whether an act creates inadmissibility to begin with, whether that inadmissibility can be waived, and how to do so is very complex. We encourage potential waiver applicants to speak with us about the ability to navigate it.
Should we determine that there is a way through, we will discuss the demonstration of “extreme hardship”. This nebulous term has only been lightly developed by case law over the years, but in 2016 in one of President Obama’s last acts, his administration released a very useful memorandum and update to the USCIS Policy Manual. At Abrams & Abrams we continually “push the envelope” to
A few years ago, after some hesitation, we at Abrams & Abrams sued USCIS in the District of Nebraska over a wrongfully denied adjustment of status. We had previously tried everything: three motions to reopen, congressional assistance, emails to the USCIS Chief Counsel, et cetera.
Within a few months, USCIS reopened and approved the applications for a family of four. We knew from that moment that litigation would be the only avenue to success for some. Since then, we have developed a strategy that involves gentle communication to the various immigration agencies, with a deadline for filing mandamus and APA lawsuits. Often we get what our clients need without needing to file, but other times it has to be done.
Prospective litigants should know that filing these lawsuits can assist in a number of situations:
“stuck” cases that were never scheduled for interviews or were never resolved after interview;
USCIS written decisions wrongfully applying facts or law;
inaction by the various U.S. consulates around the world; and others.
In two recent instances, clients retained us to overturn denials of their green cards where USCIS said they had not mailed in requested documents by the stated deadlines when they had clearly done so, and to have naturalization interviews scheduled when they were over one year overdue.