FAQS ON “EXTREME HARDSHIP” WAIVER PART 1

By Michael J. Gurfinkel

Whenever a person commits fraud or misrepresentation, or overstays in the U.S. for more than 180 days, and then departs the U.S., that alien may be required to submit a hardship waiver on Form I-601 (Application for Waiver of Grounds of Inadmissibility). This article will discuss some of the more common questions about the hardship waiver.

1. What is a “hardship waiver”?

A hardship waiver (sometimes referred to as a “fraud waiver”) is where an applicant for a green card asks the USCIS for “forgiveness” for his immigration sins. For Filipinos, the most common situations for a hardship waiver are for fraud/misrepresentations (i.e. entering the U.S. on an assumed name, use of fake diplomas or other documents, etc.), or overstaying in the U.S. for more than 180 days and departing, thereby triggering the 3/10 year bar.

2. Can anyone file a hardship waiver?

Not everyone is eligible to apply for a hardship waiver. The green card applicants who are eligible to file a hardship waiver are those who have the following relatives, who are called “qualifying relatives”:

1. Spouse, who is a U.S. citizen or lawful permanent resident; and/or
2. Parent(s) who is/are a U.S. citizen or lawful permanent resident.

If you do not have any of the above relatives, you are not eligible to even file a hardship waiver.

3. What if I don’t have a spouse or parent who is a citizen or immigrant, but my child is a U.S. Citizen?

A U.S. Citizen or lawful permanent resident child is NOT a “qualifying relative”. You are not eligible to file a hardship waiver if the only close relative you have is a citizen or immigrant child. Only a spouse or parent can be a “qualifying relative” for a hardship waiver.

I came across one case where a Filipina committed fraud in 1972 when applying for a visitor’s visa, when she submitted fake land titles. Many years later, her U.S. citizen daughter petitioned her, but her immigrant visa was refused in 2008 -- many decades after the fraud. The woman did not have a spouse or parent who was a citizen or immigrant; only her citizen daughter. In that situation, the woman was not eligible to submit a fraud waiver.

4. If I have a qualifying relative, will my hardship waiver be granted?

Even if an alien has one or more qualifying relatives, the alien must still demonstrate that the qualifying relative will suffer “extreme hardship” if the hardship waiver is not granted.

5. What is extreme hardship?

Extreme hardship includes circumstances that are uncommon, unusual, and beyond simply living apart. Every spouse or parent would of course be “sad” or depressed if their alien relative was unable to be with them in the U.S. That is “normal” hardship. In order to prevail, you must demonstrate that your qualifying relatives’ hardship is “extreme”, meaning above and beyond ordinary hardship that every single relative would suffer.

In future articles, I will further discuss the various aspects and issues involved in a hardship waiver. The bottom line is that a hardship waiver is complex, and requires substantial documentation, which is why I suggest that you seek the advice and assistance of a reputable attorney in order to increase your chances of success.