What is extreme hardship for the provisional unlawful presence waiver?

////What is extreme hardship for the provisional unlawful presence waiver?
Extreme Hardship to a qualifying relative (U.S. citizen spouse or parent) must be proved for your waiver to be granted, but the Act doesn’t define what it is.  Instead, we must look to prior court decisions.  An adjudicator must review your case based upon the totality of the circumstances to find extreme hardship.  That means that even if you don’t have a single factor that alone may satisfy a waiver, you can still satisfy the requirement if your factors in the aggregate prove the hardship.

Although there is not precise definition, yet, we do know that the standard of proof is a “preponderance of the evidence.” That means that you must show that your qualifying relative “more likely than not” will experience extreme hardship if you aren’t admitted in the U.S.  In numerical terms, this standard is usually understood as a 51% chance (or higher) that your qualifying relative will suffer extreme hardship.

Two principal concepts for Extreme Hardship are the “Separation Standard” and the “Relocation Standard.”

  1. Separation Standard – You must show that your qualifying relative (USC parent or spouse) will suffer greater harm than ordinary separation if he or she stays in the U.S. without you.
  2. Relocation Standard – You must show that your qualifying relative (USC parent or spouse) will suffer greater harm than a typical relocation if he or she leaves the U.S. with you.  If relocation is not possible give documentation showing it.  For example, the qualifying relative is serving in the U.S. armed forces, or came to the U.S as a refugee from your county, or a significant medical injury that would prohibit the relocation.

Extreme Hardship can be based on actual or prospective injury.  An actual injury or harm is more likely if you have already relocated.  This is more common in a traditional Form I-601 claim.  If you have relocated you should include evidence of actual harm that has occurred because of the relocation or separation. This may be financial, emotional, or victim of a crime or abuse.  Whereas, prospective harm is more typically argued in a Form I-601A while you are still living in the U.S.  Here, you are discussing harm that may occur in the future because of separation or relocation.  The harm must be realistic and foreseeable and you should include a discussion of your home country’s conditions.

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