Various visas and waivers for immigration require applicants to prove that a relative will experience extreme hardship if the applicant is not admitted into the U.S., but little information is given on what this really means. Proving extreme hardship can be difficult, and applicants should consult an experienced immigration attorney for assistance, as failing to adequately prove hardship can result in your application being denied. That said, this guide can help you understand the basics and begin collecting information for your waiver application.
When Do You Need to Prove Extreme Hardship?
The extreme hardship test is used when various visa waivers are being sought. These waivers overrule existing laws that prevent an immigrant who would otherwise not be allowed to enter the country, allowing them to stay. However, waivers are only available if the applicant can prove that a close family member will suffer extreme hardship if they are not allowed to enter or remain in the country. In some cases, such as waivers related to fraud and the Violence Against Women Act, hardship to the applicant themselves will also be considered.
The hardship test applies to several waivers, the most common of which are the following:
- Form I-601 waiver of deportation or barred entry
- Form I-601(a) provisional unlawful presence waiver
- Immigration and Nationality Act (“INA”) 212(h) waiver of inadmissibility for certain crimes
- INA 212(i) waiver of inadmissibility for fraud or willful misrepresentation
- INA 216(c) waiver of conditions on lawful permanent resident status
- Suspension of removal and cancellation of removal under Section 203 of the Nicaraguan Adjustment and Central America Relief Act (NACARA), and
- Suspension of deportation under former INA section 244(a)(1) (as in effect prior to April 1, 1997)
Who is Considered a Qualifying Relative?
Different waivers have different definitions of who counts as a qualifying relative, so it is important to discuss your specific case with your immigration attorney. However, certain general rules apply. Spouses are always considered qualifying relatives, and in many cases, parents and children do as well. You may also be able to show that a close relative for whom you are the sole caretaker will suffer extreme hardship if you are not allowed to remain in the country.
How is Extreme Hardship Determined?
Extreme hardship is not defined under any specific U.S. law, which can make it difficult for applicants to determine whether they qualify. Instead, the United States Citizenship and Immigration Services (USCIS) determines hardship on a case by case basis and after evaluating all relevant factors. This means that instead of needing one overwhelming factor to prove hardship, you may be able to demonstrate it through multiple concerns. You may also be able to demonstrate that individual hardships endured by multiple relatives add up to extreme hardship.
Generally, extreme hardship is considered hardship beyond what is typically associated with deportation. The following factors may be considered when determining whether extreme hardship is present:
- The age of the applicant when they entered the U.S. and when they applied for the waiver
- The age, number, and immigration status of any children, as well as their perceived ability to adapt to life in another country if they leave the U.S. with their parent
- The health of the waiver and their children, spouse, or parents and the availability of medical treatment in the country to which the applicant would be deported
- The applicant’s ability to find a job in that country
- Their length of residence in the U.S. and existence of other family members who are or will be legally living in the U.S.
- The financial, psychological, and educational impact of the applicant’s departure
- The current political and economic conditions in the applicant’s home country
- Family and other ties to that country
- Contributions and ties to the U.S. and degree of integration into society
- Immigration history and authorized residence in the U.S.
- The availability of other means of adjusting to permanent resident status, if any.
Some of these factors may be considered more important than others. Economic factors and the ability to adapt to a new country are generally considered less serious, while serious medical issues or dangers within the home country tend to carry more weight. However, it is important to remember that the waiver being sought will also determine the importance of various elements.
Deciding to Grant a Waiver
USCIS uses a two step process to determine whether to grant a waiver. First, extreme hardship is determined by whether the qualifying relative would be more likely to relocate with the applicant or remain in the U.S. without them and, if so, whether they would face extreme hardship as a result. You may show that both options are equally likely and could present serious complications or choose to focus on just one. Second, a USCIS official will evaluate additional circumstances of the waiver request to decide whether to grant it.
Proving Extreme Hardship
You can prove extreme hardship would exist with several pieces of evidence, including expert opinions from medical or mental health professionals, official documents, photos, evidence of employment or business ties, financial records, paperwork showing involvement in community organizations, newspaper articles, personal testimony and affidavits, and letters from the applicant and their relatives.
For assistance with collecting evidence and submitting your application, speak to the attorneys at Johnson & Masumi. The firm’s experienced team of attorneys can provide a consultation to discuss your case and help you with litigating immigration cases, applying for visas or waivers, and managing your immigration status.