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“Extreme Hardship” and Waivers

| Sep 23, 2019 | Blog

If you have applied for a green card and an immigration official has found you inadmissible, you may be eligible to file for a waiver. Basically, in filing for a waiver, you are asking for USCIS to forgive the grounds of inadmissibility and grant the green card anyway. However, immigration officials will grant a waiver only if you can show “extreme hardship” to a qualifying relative.

Common grounds of inadmissibility

The Immigration and Nationality Act and its corresponding regulations define which persons are inadmissible. Persons found inadmissible are those who are unable to obtain a green card through consular processing, apply for adjustment of status from within the US, and unable to obtain a nonimmigrant visa to visit the US. You might find yourself inadmissible because you committed certain crimes, acted fraudulently in an effort to obtain an immigration benefit, or have accumulated more than six months of unlawful presence in the US.

It is important to note, not all grounds of inadmissibility can be waived. You should consult with an experienced immigration lawyer to determine your eligibility for a waiver.

Definition of “qualifying relative” depends on the waiver

Depending on the waiver you seek, the definition of “qualifying relative” may differ from one waiver to another. The following are the three most common hardship waivers and their definition of “qualifying relative”:

Unlawful Presence Waiver

For the purposes of this waiver, the INA defines a qualifying relative as a US citizen or lawful permanent resident spouse or parent. Therefore, children, siblings, and other extended family members are not qualifying relatives.

Fraud/Misrepresentation Waiver

Like the unlawful presence waiver, you must show extreme hardship to your US citizen or green card holding spouse or parent in order to obtain a waiver for fraud. Again, children are qualifying relatives. Often, immigrants make the mistake of focusing on the hardship to their children when they are qualifying relative. This mistake will result in a challenge or a denial of your waiver application.

Criminal Conviction Waiver

If you have a criminal conviction that can be waived, you may be eligible if you can show that your US citizen or lawful permanent resident spouse, parent, or children would suffer extreme hardship if the waiver is not granted.

What is “extreme hardship?”

While the INA or its corresponding regulations have yet to define “extreme hardship, there is case law and advisories that help to define the term.

To qualify for one of the three mentioned hardship waivers above, the immigrant must conclusively demonstrate the his/her qualifying relative would suffer a hardship that is notably worse than what would be ordinarily expected from family separation. Therefore, the intending immigrant simply cannot rely on the argument that the qualifying relative will suffer financial hardship. Likewise, demonstrating heartbreak and emotional suffering do not rise to the level of extreme hardship.

Now that we have touched on what is not “extreme hardship,” here are some arguments we have seen in successful applications:

  • Your qualifying relative has a medical condition and is dependent on your care.
  • Your relative has a sick family member and will be unable to care for them without your support.
  • You are the caregiver for your qualifying relative’s children and your relative will be unable afford childcare in your absence.
  • Your relative in experiencing well-documented clinical depression as a result of your immigration status.
  • Your relative has a medical condition and will be unable to find adequate treatment in your home country.
  • Your relative does not speak the language of your home country.
  • Your relative will be unable to obtain gainful employment in your home country.

There are a number of possible scenarios that may rise to the level of “extreme hardship,” and immigration officials review each waiver application on a case-by-case basis. Since immigration officials review each application on a  case-by-case basis, a careful analysis of the case law and advisories is essential. An immigration lawyer can assist you in collecting the best evidence to support your arguments as well as prepare a legal summary of the case law to submit with your application.