FAQS ON “EXTREME HARDSHIP” WAIVER PART 3

By Michael J. Gurfinkel

In previous articles, I discussed some of the aspects and issues regarding a “hardship waiver”. Here are more items you should be aware of:

7. If we prove my qualifying relative would suffer extreme hardship, will the waiver then be granted?

Actually, a hardship waiver involves three separate steps:

1. The existence of a qualifying relative;
2. The qualifying relative would suffer extreme hardship; and
3. The alien warrants a favorable exercise of “discretion” in granting the fraud waiver.

So it could be possible that a qualifying relative would suffer extreme hardship, but in balancing the positive and negative factors, the USCIS may still deny the hardship waiver in the exercise of discretion. So, the final step for a hardship waiver is weighing the positive and negative factors.

8. What are the positive and negative factors that USCIS considers in exercising discretion?

The positive factors relied on by USCIS include the alien’s family ties, length of residence, hardship to the alien’s family, the alien’s employment history, property or business ties, community service, genuine rehabilitation or remorse (if a criminal record exists), and other evidence demonstrating the alien’s good character.

Typically, USCIS would want letters from social/religious organizations attesting to the alien’s participation in the community, volunteer, and charitable events, evidence that the alien has paid U.S. taxes for every year in the U.S., evidence of awards or certificates for outstanding work or contributions, evidence of advanced schooling, licenses, or certificates, and other evidence of the alien’s new found respect for law and order and remorse/rehabilitation for past immigration violations.

The negative factors would include the nature and underlying circumstances of the inadmissibility (what was the fraud/misrepresentation, and how serious was it?), the presence of additional immigration violations, (such as working without authorization, overstaying in the U.S., etc.), existence of a criminal record and other evidence showing the alien’s bad character or undesirability as a lawful permanent resident.

9. If I retain an attorney, would that “guarantee” that my hardship waiver would be approved?

While hiring an attorney would probably greatly increase the chances of getting the hardship waiver approved, by law, attorneys are prohibited from “guaranteeing” success.

But as you can see, a hardship waiver requires a substantial amount of proof and documentation. The standards are high and USCIS can be strict in exercising discretion. I have seen many cases that would have had a chance, but were denied because the alien tried to save money and do it on their own and did not understand the complexities of an extreme hardship waiver.

That is why I would advise that you seek the assistance of an attorney, which could greatly increase your chances for success.