My daughter needs to enter the United States for urgent medical care, but my wife (her primary care-taker) is inadmissible. How can my wife enter the United States to be with our daughter?

Question:

My wife and I are both citizens of Australia. We have four children. Our oldest child was born in 2001 with serious medical problems. Since her birth, she has been required to seek medical treatment on a regular basis. Recently, my daughter was accepted to participate in a revolutionary stem-cell treatment program with a doctor in the United States that may improve her condition. It is a one week treatment, but my wife and I would like to remain in the United States for a total of three weeks: one week to get my daughter settled into the program; one week for the actual treatment; and then one week to be in the presence of her doctors to ensure that treatment went well and be certain that she is safe to travel back to Australia.

The problem is that my wife requires a nonimmigrant waiver to enter the U.S. because of a theft conviction that occurred several years ago. She previously filed and was approved for a waiver with her last visa, but that recently expired earlier this year. My wife attempted to have a renewal waiver expedited, but she was informed that there is no procedure that would expedite the adjudication process. So, right now my wife has applied for a B1/B2 visa and the non-immigrant waiver application remains pending at the Admissibility Review Office.

We have already made flight arrangements to come to the United States. How can my wife enter the United States during the pendency of her waiver, so that she can assist me with the care of our daughter during her medical treatment (she is actually our daughter’s primary care-taker)?

Answer:

Thank you for your question. Based on the facts you have described above, preliminary, our office would want to research and confirm whether an application for humanitarian parole through U.S. Citizenship & Immigration Services may be the best option for your wife. Your wife’s case appears to have a very compelling humanitarian factor due to your daughter’s need for medical attention and your wife’s role as her primary care-taker.

Humanitarian parole is a means of allowing an individual into the United States who is otherwise inadmissible for a temporary period of time due to a compelling emergency. Both the United States Citizenship and Immigration Service (“USCIS”) and Customs and Border Protection (“CBP”) can grant paroles, however, based on the circumstances of your wife’s case, the appropriate agency to request a parole from would be USCIS.

According to USCIS, the agency may grant a parole when: (1) there is an urgent humanitarian reason, or if there is a significant public benefit; and (2) the period of time that corresponds with the length of the emergency or humanitarian situation. Parolees must depart the United States before the expiration of their parole. 

Based on the facts you have provided in your question, and by demonstrating additional equities in support of the parole application, we may be able to make a strong argument for a humanitarian parole. For example, we would need to be able to demonstrate that the treatment you are seeking from your daughter is unavailable in your home country of Australia, as well as establish that you have the financial ability to support yourselves and pay for her treatment during your time in the United States. 

If you would like to discuss your case in greater detail, please call our office. We would be more than happy to assist you with the preparation of a packet to submit to USCIS highlighting why USCIS should favorably exercise its discretion to grant your wife parole to accompany your daughter to the United States for medical treatment. 

SRW Border Lawyers Follow Up:

We assisted this Client in applying for humanitarian parole from USCIS's Humanitarian Branch.  The Client was granted humanitarian parole by USCIS's Humanitarian Branch and was allowed to enter the U.S. to accompany her daughter for this treatment. 

When the Consular Officer Does Not Want to Forward a Favorable Non-Immigrant Waiver Recommendation to the Admissibility Review Office (ARO)

In order for a foreign national to be approved for a U.S. non-immigrant visa, the foreign national must not be inadmissible to the U.S. under INA §212.  For those foreign nationals that are inadmissible under INA §212, the Consular Officer may recommend that the foreign national be approved for a non-immigrant waiver of inadmissibility under INA §212(d)(3)(A)(i), which waives many of the enumerated grounds of inadmissibility.  A detailed explanation of this process is available here.

If the Consular Officer favorably recommends the foreign national’s waiver application – perfect! Now the foreign national can wait until the application is adjudicated by the Admissibility Review Office (ARO). 

However, what can a foreign national do when the Consular Officer is unwilling to recommend them for the non-immigrant waiver?   In that case, even though the Consular Officer does not believe that a waiver should not be granted, the foreign national can ask that the Consular Officer submit the case to the Visa Office (VO) for an Advisory Opinion.  The VO has independent authority to recommend such a waiver to the ARO and may choose to do so over a Consular Officer’s objection. 

Notably, the Consular Officer does not have the discretion to deny the foreign national’s request for an Advisory Opinion from the VO.  See 9 FAM 40.301 N6.2.  However, the Consular Officer may submit a recommendation to the VO with an explanation of the reasons that they are objecting to the favorable recommendation of the non-immigrant waiver.

My wife and I accumulated several years of unlawful presence, what options are available to us to visit the U.S. now?

Dear SRW Border Lawyes,

Question: My wife and I are both Pakistani citizens. We first met in the U.S several years after we entered on our B1/B2 visas (at different times).  We ultimately overstayed our visas due to the widespread instability in Pakistan at the time. After we met, we got married, had three children, and lived in the U.S. for 10 more years.

In 2006, after several attempts to gain legal status in the U.S., my wife and I landed in Canada. We have remained in Canada ever since. I have tried several times to apply for a B1/B2 visa to visit the U.S. for business and pleasure, but I have been denied both times.

What options are available to my wife and me to enter the U.S?

Answer: Thank you for your question. Based on the information you provided, it appears that you and your wife entered the U.S. and overstayed your B1/B2 visas. As you may know, once you and your wife overstayed your visas, you both began to accumulate what is referred to as unlawful presence. I cannot say for certain if your unlawful presence was the sole reason for your recent B1/B2 visa denials, but it was most likely a factor. You will have to address your unlawful presence issue if you desire to enter the U.S. anytime soon.

INA § 212(d)(3)(A)(i) Waiver

Moving forward, if you would like to enter the U.S., you will need to apply for a 212(d)(3)(A)(i) waiver to overcome your unlawful presence. Based on the amount of time you were unlawfully present in the U.S., you and your wife are subject to the 10-year bar pursuant to INA § 212(a)(9)(B)(i)(II). The (10) ten-year bar is applied to individuals who have been unlawfully present in the U.S. for a period of one year or more and who seeks admission within 10 years of his or her departure.

Parole

If you have an urgent reason to enter the U.S., however, a 212(d)(3)(A)(i) waiver may not be the best option for you. Currently, the processing time for waivers by the Admissibility Review Office (ARO) has been delayed due to understaffing. Therefore, foreign nationals with waivers currently pending beyond normal processing times, and who have an urgent need to enter the U.S., apply for what is referred to as parole. Parole is a legal fiction that allows for the physical entry of an individual into the United States without actually "admitting" him or her into the country. Parole is commonly used to allow otherwise inadmissible individuals to enter the country for specific reasons, for a limited period of time and usually involves a degree of urgency.

Form I-192 Nonimmigrant Waiver - Canadians

You indicated in your question that you and your wife are currently landed permanent residents of Canada. Another possible option is to become Canadian citizens. After becoming Canadian citizens, you and your wife may apply for I-192 waivers pursuant to INA § 212(d)(3)(A)(ii) to overcome your unlawful presence. While the discretionary factors remain the same in determining eligiblilty for the Form I-192 waiver, one benefit is that the I-192 waiver application is submitted directly to Customs and Border Patrol (CBP) for adjudication and does not require initial recommendation by a consulate. 

To better understand what option may be best for you and your wife, please call our office and make an appointment to speak with the SRW Border Lawyer Team.