31 Oct 2018 What is “extreme hardship”?
If a person commits certain immigration violations (such as fraud, or overstaying in the U.S. for over six months and then departing, etc.), the person may not be eligible to receive a green card, unless the person applies for, and is granted, a “waiver of inadmissibility” (or “forgiveness”) on a Form I-601. To be eligible for the waiver, the person must demonstrate he or she has a spouse or parent who is a U.S. citizen or a green card holder (“qualifying relatives”), and the qualifying relative would suffer “extreme hardship” if the applicant is not granted the waiver.
But what is extreme hardship? How does a person demonstrate or prove extreme hardship on the qualifying relative? How should the immigration officer evaluate the qualifying relative’s extreme hardship?
The USCIS has a policy manual (PM), to provide some guidelines on establishing extreme hardship. In the past, applicants had to rely on published immigration cases that discussed extreme hardship, memos, etc. to figure out what constitutes extreme hardship and how to prove it. USCIS’s PM on extreme hardship aims to clarify how USCIS should make extreme hardship determinations.
But even with this PM, figuring out what constitutes extreme hardship can still be confusing. Even USCIS admits that the term “extreme hardship” is not expressly defined in the law, regulations, or in case law. USCIS further states that to meet this “extreme hardship” requirement, the person must show that the refusal of admission would “impose more than the usual level of hardship that commonly results from family separation or relocation.” That’s an important point: “extreme” simply means “more than usual,” or more likely than not, or 51% probability.
Among the items to be considered are:
- Hardship to the qualifying relative if they had to relocate overseas (to be with the applicant), or, in the alternative, remain in the U.S., (separated from the applicant).
- Strong family ties in the U.S.
- Social and cultural impact if the qualifying relative had to relocate overseas to be with the applicant
- Economic impact on the qualifying relative if the hardship waiver is not granted
- Health conditions and medical care of the qualifying relative
- Country conditions, and State Department travel warnings for the country where the qualifying relative would have to relocate.
The PM lists dozens of specific factors which could constitute extreme hardship on a qualifying relative, and points out numerous factors which would not be considered extreme hardship. The PM provides some hypothetical examples where the claimed hardship would be considered normal or a “common consequence of relocation”, as opposed to being “extreme.”
Many people, when faced with having to file a waiver of inadmissibility, do it on his or her own, rather than seeking the advice or guidance of an attorney. While hiring an attorney does not “guarantee” approval, the determination and evaluation of extreme hardship can be a complex and complicated task. Putting together an effective presentation is also critical. The PM is 48 pages long. The instructions for filling out the Form I- 601 are 21 pages. The I-601 form itself is 13 pages long. The stakes are so high in applying for the waiver. If a person is not granted a fraud waiver, it could result in a lifetime ban. If the 3/10 year bar waiver is not approved, the relative may not be able to apply for a visa to come to the US for at least 10 years.
That is why when you have something as complex as a waiver of inadmissibility, you should seek the advice and guidance of an attorney, rather than doing it on your own. Learning immigration law (or figuring out what is “extreme hardship” and how to prove it) by doing the waiver on your own could have lifetime consequences on your relative.
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