How to prove extreme and unusual hardship for immigration hardship waivers

By Jessica Suotmaa 0

Many of our clients are aware that they need, or will need, a I-601 or I-601A waiver in order to re-enter or apply for a green card in the U.S. Most hardship waivers and relief require proof of “extreme and unusual hardship” to qualify.  Many of our clients feel that they meet the requirements. So the question is, how do we prove to Immigration, United States Citizenship and Immigration Services (USCIS), that our clients have extreme and unusual hardship?

What is “Extreme and Unusual Hardship” anyway?

USCIS has released a list of common factors for extreme hardship.

  • Health 
    • e.g., ongoing special treatment for physical or mental condition, chronic vs. acute or long- vs. short-term care
  • Financial considerations
    • e.g., sale of home/business, cost of care for elderly and sick parents, special education needs of children
  • Education
    • e.g., disruption of current education program,
  • Personal considerations
    • e.g., family connection, length of community/social ties
  • Special factors
    • e.g., fear of persecution, social ostracism or stigma
  • Significant factors
    • e.g. asylum, refugee, or other temporary protection status

This is in no way a complete list. You may have a situation that is not listed but would qualify for extreme and unusual hardship. If you have questions, feel free to ask a lawyer.

Who qualifies for “extreme and unusual hardship”?

USCIS only considers hardship on a “qualifying relative”, not the applicant. Only the applicant’s U.S. citizen parents or spouse qualify for hardship.  The entire application is based on the hardship the applicant’s qualifying relative will suffer if the applicant is deported or not allowed to re-enter the country.

This is not to say you cannot submit items related to, for example, your U.S. citizen children. It just means that any hardship from your children must be presented in relation to how it will pose as hardship to your spouse/parent.

How can I prove “extreme and unusual hardship”?

The specific evidence needed to prove extreme and unusual hardship depends on your individual situation, the factors you qualify for, and the strength of those factors. Having said that, it’s important to know that any statement or explanation should be backed up by evidence. The burden of proving extreme and unusual hardship is on the applicant.

For example, if you claim hardship based on medical or health concerns, you need to submit medical reports and/or a healthcare professional’s statement.  If for some reason you cannot get a copy or a new statement about your condition, you need to explain why.

Here are some examples USCIS has listed in their policy manual:

  • Payroll and tax statements to show employment and business ties
  • Evidence of monthly spending, such as mortgage statements, rental agreements, bills and invoices
  • Medical documentation for any health concerns
  • Expert opinions
  • Records of members in community organizations, volunteer confirmation and evidence of cultural affiliations
  • Birth/marriage/adoption certificates proving family ties
  • Country condition reports
  • Affidavits by qualifying relative declaring personal knowledge of claimed hardships

In addition, our office usually provides a budget template to see if our clients qualify for financial hardship. We research the city, county, and country you’d be living in, and we help you look for jobs, schools, or even medical facilities.

What does it mean to prove “extreme hardship under two scenarios”?

USCIS requires that extreme hardship be proven under two scenarios: 1. where the applicant is deported or not allowed to re-enter, and 2. where the applicant leaves/does not re-enter but the qualifying relative(s) lives with them outside the U.S.

Many of our clients who are “qualifying relatives” will often exclaim that they do not want to consider “the other scenario” because it is not an option for them.  Keep in mind that these scenarios are hypothetical right now, but could become reality should the waiver or relief not be granted. As such, we need to consider them as we would consider any international move: with detail and seriousness. Every claim made has to be supported by evidence.

What is not considered “extreme and unusual hardship”?

The opposite of “extreme and unusual hardship” is common hardship.  Expected consequences of denial or readmission or deportation include:

  • the heartbreak of family separation
  • less income or financial ruin
  • challenges in adjusting to another country
  • poorer education opportunities abroad
  • poorer medical services abroad
  • poorer employment or career opportunities abroad

The USCIS Policy Manual, Volume 9, Part B, Chapter 5, Extreme Hardship Considerations and Factors goes into detail with examples of what counts as “common hardship” and what counts as “extreme and unusual hardship”.

Deportation is not the end

By Lum Law Group 0

Deportation has become a source of tears, hardship, and anxiety for many of our clients in recent months.  The new administration has tightened policies, increased the number of ICE arrests, and limited the amount of discretion at the disposal of individual officers. As a result, we have seen an increase in the number of detainees and deportations.  Many have weighed heavily on our minds weeks, or even months afterwards, and we have struggled to communicate effectively the hope we still hold for them.

Yes, there is hope.

Banned from Returning

Each immigration case is different, as it depends on the number of years you are banned from returning to the United States. There are five year bans, ten year bans, 20 year bans, and even permanent bans, which are issued depending on why you were removed and on whether you have a criminal record.  Generally, non-citizens who entered the US illegally without inspection or who overstayed, are unlawfully present in the US.  If you have been unlawfully present for over 180 days, but less than one year, you are banned for three years.  If you have been unlawfully present for over one year, you are barred from re-entering for ten years.

Form I-212

Once deported, you can file I-212 Application for Permission to Reapply for Admission to the United States. You can file the I-121 if you were deported or ordered removed and voluntarily departed. You may also need to file the I-212 if you were previously removed and then re-entered unlawfully, or if you were illegally present in the United States for over one year.  The I-212 should be filed with applicable supporting evidence and the filing fee alongside a visa application.  Supporting evidence can range from family ties in the US to changed country conditions to rehabilitation, depending on your individual reasons for inadmissibility. By submitting the form, you are asking Immigration (USCIS) to overlook your “inadmissibility” (the reason you were deported) and grant you another application that would allow you to re-enter the US (such as a Visa application).

If granted, you are able to re-enter the US and do not have to worry about your previous illegal status.

Form I-601

If you are deemed inadmissible for circumstances other than illegal entry and unlawful stay, then you may need to file an I-601, Application for Waiver of Grounds of Inadmissibility alongside your other applications.  The I-601 Waiver requires you to prove extreme hardship to an immediate family member who is a US citizen or permanent resident.

USCIS has deemed extreme hardship factors to include (but not limited by) health, financial considerations, education, personal considerations, and special factors. Evidence of extreme hardship should be carefully annotated, but keep in mind the I-601 Waiver is a discretionary relief, meaning the officer reviewing your case will interpret your extreme hardship and decide whether to grant your request for waiver.

When preparing to file for I-601, it’s important to note that while you may qualify to apply, there is no guarantee that your application will be accepted.  Your chances of success may be low if you have previously violated immigration law, if you have criminal charges/arrests/convictions, or marriage fraud.  Such circumstances could weaken your application and require proof of more extreme hardship than others.

Re-entering Illegally is a Felony

We cannot stress enough how important it is to re-enter the United States lawfully post-deportation. The reason is that illegally entering the United States is a misdemeanor (8 U.S.C. § 1325), but illegally entering, or attempting to enter, the United States after removal is a felony crime (§ 1325 is 8 U.S.C. § 1326). Your previous proceedings and orders will be “reinstated”, meaning you’ll likely not have a chance to defend yourself in front of an Immigration Judge and you may be permanently barred from entering the US.

 

If you’re unsure as to whether you qualify for any of the above waivers, or if would like to know your chances, talk to an experienced immigration attorney.

US Flag and Justice

By Justin Lum 1

A waiver is “legal forgiveness”, which can be requested if you have a condition, a record, or any other reason why you may be considered “inadmissible” or if you’re in the US “unlawfully” (out of status).

If you’re deemed inadmissible, find the I-601 form and information here.

If you’re unlawfully present (illegal), find the I-601A form and information here.

 

To file either form, the key is to provide enough evidence (proof) that you should be allowed to enter/stay in the US. If you’re not sure how present your case to USCIS, or if you’ve filed the form and received a Request For Evidence (RFE), contact Lum Law Group for legal assistance.