Extreme Hardship Criteria for Form I-601 Waivers18 Nov 2019
A foreign national may be found to be inadmissible (i.e., ineligible to enter the United States, adjust status from within the U.S., or apply for certain other immigration benefits) for a variety of reasons. Some categories of inadmissibility result in a permanent bar to the United States, but some, such as a bar for unlawful presence, are for a certain length of time. As long as the foreign national remains inadmissible, the individual typically cannot become a U.S. lawful permanent resident (LPR, or “green card” holder). If, however, the person has a qualifying relative, the foreign national may file an application for waiver of grounds of inadmissibility (form I-601) to request a waiver of most forms of inadmissibility.
Background on Discretionary Waivers of NIV and IV Inadmissibility
Common grounds of inadmissibility include criminal grounds, fraud or misrepresentation, and immigration violations, such as accumulating certain periods of unlawful presence. With few exceptions, a foreign national who is inadmissible may apply for a nonimmigrant visa (NIV) waiver, sometimes called a 212(d)(3) waiver, based on relatively broad and flexible criteria. See the MurthyDotCom NewsBrief, Nonimmigrant Visa Waivers – Process and Criteria (19.Aug.2019), for more details on this type of waiver.
On the other hand, if a person subject to inadmissibility wishes to apply to become a lawful permanent resident (LPR, or “green card” holder), one generally can obtain a waiver only by filing form I-601 showing “extreme hardship” that will be suffered by the foreign national’s qualifying U.S. citizen (USC) or LPR relative/s. Generally, the qualifying relative must be a USC or LPR spouse or parent. For limited grounds of inadmissibility, a USC or LPR child may also be used. Regardless of the qualifying relative, the focus has to be to demonstrate the extreme hardship that will be experienced by the relative, and not the impact it would have on the foreign national who is requesting the benefit.
“Extreme Hardship” to Qualifying U.S. Relative/s
The foreign national must demonstrate hardship well beyond the hardship that results from any family separation or relocation, in order for the hardship to be considered extreme. The following are two prongs that must be satisfied to claim extreme hardship:
(1) The hardship the qualifying USC or LPR relative would face if forced to live apart from the foreign national applying for the waiver
(2) The hardship that would arise should the waiver be denied and the qualifying relative be forced to relocate abroad to live with the waiver applicant
Extreme Hardship Dependent on Totality of Circumstances
The USCIS notes in the USCIS policy manual that the adjudicating officer must consider all factors and consequences in their totality and cumulatively when assessing whether a qualifying relative will experience extreme hardship either in the United States or abroad. Ultimately, it is a discretionary determination made on a case-by-case basis as to whether the hardship is considered extreme.
Factors to Determine Extreme Hardship
The policy manual provides a non-exhaustive list of factors that the USCIS may consider when making extreme hardship determinations. The adjudicating officer must consider whether any factor set forth individually rises to the level of extreme hardship under the totality of the circumstances. If any factor alone does not rise to the level of extreme hardship, the officer then must consider all factors together to determine whether they cumulatively rise to the level of extreme hardship. The list includes:
- Family ties
- Social and cultural impact
- Economic impact on the qualifying relative
- Health conditions and impact on care for both the qualifying relative and the applicant
- The country conditions where the applicant would relocate if not granted the waiver
Significant Factors Likely to Satisfy Extreme Hardship
The policy manual also highlights circumstances that are often likely to support findings of extreme hardship, including:
- Qualifying relative or related family member’s disability
- Qualifying relative’s military service
- Substantial displacement of care of the applicant’s children
Waiver Does Not Replace Other Green Card Requirements
Having a qualifying relative needed for a hardship waiver has no impact on the standard requirements that still must be satisfied in order to apply for a green card. For instance, this waiver does not change the fact that one’s priority date must be current for most case types in order to apply for a green card.
Form I-601A, Application for Provisional Unlawful Presence Waiver
The application for provisional unlawful presence waiver (form I-601A) is a variation of form I-601, reserved exclusively for those applying for a waiver of the unlawful presence grounds of inadmissibility. Unlike form I-601, the form I-601A normally is filed while the foreign national is still in the United States. If it is approved, the individual can then depart the U.S. and apply for the immigrant visa at a U.S. embassy or consulate abroad.
While most waivers are becoming more difficult in the current climate, it is important to determine eligibility and make strong arguments to establish extreme hardship. The Murthy Law Firm has substantial experience successfully obtaining both NIV and IV waiver approvals. Waivers based on extreme hardship to a qualifying relative tend to be complex, personalized, and fact-intensive. Anyone in need of applying for such a waiver is encouraged to schedule a consultation with a Murthy Law Firm attorney.
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