The Situation
My client was the widow of a U.S. citizen. She had an approved I-360 and a pending I-485 application to adjust status. On the advice of well-meaning relatives, and carrying an Advance Parole document that should never have been issued to her, she left the country, returned, and was paroled back in at the border. Months later USCIS denied her adjustment. Her departure, the agency reasoned, had triggered a ten-year bar; she now needed a waiver of inadmissibility, and without one her case was finished.
Set the denial against what the government had itself done. It had issued the travel document. Its own officer had inspected her and paroled her in. Then it treated the trip it authorized as the act that barred her. A traffic cop who waves you across the crosswalk, tickets you for jaywalking, and then orders you out of his town has done roughly the same thing.
The deeper problem was not the contradiction. It was the waiver. A hardship waiver is granted for the sake of a qualifying relative, a citizen or resident spouse or parent whose hardship justifies the relief. My client’s qualifying relative was her citizen husband. He had died. On the ordinary reading, the waiver was unavailable to her.
The Statute That Kept the Waiver Alive
By the time the denial was written, Congress had already removed the obstacle. Section 204(l) of the Act, added by section 568(d) of the Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, 123 Stat. 2142, 2187-88 (2009), changed the governing law for anyone seeking a benefit through a qualifying relative who has died. It permits approval of the visa petition and, in the agency’s own words, “any related applications,” a waiver among them, where the applicant resided in the United States when the relative died, continues to reside here, and is the beneficiary of an approved immediate-relative petition. My client met every prong. The I-360 was her approved immediate-relative petition; she had lived in the United States throughout.
The statute does not waive any grounds of inadmissibility. What it removes is narrower and exactly on point: it bars denying relief based solely on “the lack of a qualifying family relationship,” as USCIS reads it in PM-602-0017 (December 16, 2010), now carried in the USCIS Policy Manual at Volume 7, Part A, Chapter 9 and Volume 9, Part B, Chapter 4. Where the deceased is the qualifying relative for both the statute and the waiver’s hardship test, USCIS treats the death as the functional equivalent of extreme hardship. The loss that should have ended the widow’s case supplied the very showing the waiver required.
The statute and the memorandum interpreting it both predated the denial letter, so the examiner who denied her should have known the relief existed. But he could not have approved the case anyway because § 204(l) still did not spare her: it kept the waiver available, but she had to file an I-601 to overcome a bar triggered by her USCIS-authorized departure and reentry.
The Result
I filed the I-601 waiver and a motion to reopen the denied I-485. It then took USCIS a year and a half to reopen the case, grant the waiver, and issue the green card. None of that is an aberration. That is how the system is designed.