What is Extreme Hardship?
Proving that your qualifying relative would suffer extreme hardship is a fundamental requirement for both I-601 and I-601A waivers. Surprisingly, there isn’t any useful definition of extreme hardship under U.S. immigration law. The concept of extreme hardship is examined under the totality of the circumstances. An important tip to those who need one (or both) of these waivers is to never assume that you and your family’s circumstances would not meet the extreme hardship standard. Many people who are faced with the I-601 or I-601A waiver problem believe that they will be unsuccessful and so they give up before they even begin.
Extreme hardship is a matter of discretion
The granting of a I-601 or I-601A waiver case is completely discretionary. An Immigration Judge or USCIS adjudicator (depending on when or how the waiver is made) makes a personal, subjective decision as to whether he or she thinks that extreme hardship has been established. But extreme hardship is not a defined legal term. A totality of the circumstance is reviewed for the determination. It’s been said, “like beauty, ‘extreme hardship’ is in the eye of the beholder.” You need an experienced Immigration Attorney who has dealt with many of these cases before to help you determine the best course of action for you and your family.
Extreme Hardship is determined on a case-by-case basis
The Board of Immigration Appeals has said that extreme hardship depends on the facts and circumstances of each particular case. Establishing extreme hardship and preparing a successful I-601 immigration waiver involves storytelling. To win approval of your waiver, you have to introduce yourself and your family, explain your particular family dynamics and personal circumstances and how the denial of your I-601 waiver would negatively impact your family (especially your qualifying U.S. citizen relative). And since each family is completely different, each I-601A or I-601 immigration waiver will take a unique angle.
Factors for Determining Extreme Hardship
Even though there is no precise definition of what constitutes “extreme hardship,” the following are some typical scenarios that have supported a finding of extreme hardship (keeping in mind that this is not an exhaustive list and that it is the totality of the circumstances that is evaluated):
- The age of the alien, both at the time of entry to the United States and at the time of application;
- The age, number, and immigration status of the alien’s children and their ability to speak the native language and to adjust to life in the country of return;
- The health condition of the alien or the alien’s children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned;
- The alien’s ability to obtain employment in the country to which the alien would be returned;
- The alien’s length of residence in the United States;
- The existence of other family members who are or will be legally residing in the United States;
- The financial impact of the alien’s departure;
- The impact of a disruption of educational opportunities;
- The psychological impact of the alien’s deportation;
- The current political and economic conditions in the country to which the alien would be returned;
- Family and other ties to the country to which the alien would be returned;
- Contributions to and ties to a community in the United States, including the degree of integration into society;
- Immigration history, including authorized residence in the United States; and
- The availability of other means of adjusting to permanent resident status.
This is not an exhaustive list and is not intended to cover all possible forms of hardships to the applicant or his/her family. Also, even if no one single factor rises to the level of “extreme hardship,” the cumulative effect of all the hardships could meet the standard. Further, to the extent applicable, each factor of extreme hardship should be examined from multiple perspectives. For example, how would the qualifying relative suffer if you were deported and he/she remained in the U.S.? How would the qualifying relative suffer if he/she was forced to leave the United States to live with you?
Please contact the Law Office of Alison Yew for an evaluation of your situation and if you meet the standard for a I-601 or I-601A waiver.