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Unlawful Presence Waiver
- Refusal of admission to the U.S. would result in extreme hardship to a U.S. citizen (USC) or Lawful Permanent Resident (LPR) spouse or parent; AND
- A waiver is warranted as a matter of discretion.
Who is the Qualifying Relative that needs to suffer Extreme Hardship?
A qualifying relative must be a USC spouse or parent. However, the qualifying relative doesn’t need to be the same person who is petitioning for you. Under some circumstances the qualifying relative could be a deceased spouse or parent. You can also have more than one qualifying relative (e.g., USC spouse, USC father, and USC mother), but only one needs to have Extreme Hardship.
What is Extreme Hardship?
Extreme Hardship to a qualifying relative 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.
- 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.
- 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.
What are the common consequences of separation or relocation?
Courts have found the following to be regular hardship to your qualifying relative in case of separation from you:
- Family separation;
- Economic detriment;
- Difficulties readjusting to life in the new country;
- Changes in the quality and availability of educational opportunities;
- Changes in the quality or availability of medical services or facilities
In order to establish Extreme Hardship, you must prove that your hardship, whether actual or perspective, is extreme. That means that is must be significantly greater than these regular consequences that occur because of separation.
What are some factors to prove Extreme Hardship?
You can use hardship to other USC or LPR relatives, but only indirectly. For example, let’s say you are married to a USC and have a USC child with special needs. If you are not granted the waiver and your wife stays in the US with your child, she will become a single mom. Because of your son’s special needs, she may suffer extreme hardship trying to financially support the family while caring for the needs of your son.
Because the standard is extreme hardship, here are some factors to consider:
- Health consideration This could be ongoing or specialized treatment for physical or mental condition, availability and quality of the treatment in your home country, the anticipated duration of the treatment, and whether this is a chronic condition (develops and worsens over a longer period of time) vs. acute condition (symptoms appear or change or worsen rapidly);
- Financial considerations Future employment, loss due to sale of a home or business, decline in standard of living, ability to recoup short term loss, costs of extraordinary needs like special education for children with special needs, cost of care for family members (i.e., elderly or sick parents);
- Educational considerations loss of opportunity for higher education, lower quality or limited scope of education options, disruption of current program, need to learn a foreign language or culture with ensuing loss of time or grade, availability of special requirements like training programs or internships in specific fields;
- Personal considerations your qualifying relatives family in the U.S.; your qualifying relative family in your country of birth or citizenship; qualifying relative’s possible separation from spouse or children; ages of parties; length of residence and community ties in the U.S;
- Special factors Cultural, language, religious, and ethnic obstacles; credible fears of persecution, physical harm, or injury; social ostracism or stigma; access (or lack of access) to social institutions or structures for support, guidance, or protection.
What kind of evidence can I use to prove Extreme Hardship?
We have discussed what ordinary hardship is, what is extreme hardship including the burden of proof, and factors to consider extreme hardship, but how do you prove those factors? Here are some examples of evidence you may use to prove the factors:
- Affidavits from the qualifying relative or other individuals with legal status (don’t want someone without legal status giving their name and address to immigration- just in case) with personal knowledge of the claimed hardship. This means they observed the hardship and the letter should speak to it;
- Expert opinions usually speak to country conditions or mental or medical problems (Actual or perspective);
- Evidence of employment or business ties, such as payroll records or income tax statements. This can be used to show the standard of living and present financial circumstances. This evidence is then compared to perspective harm if you relocated. If you have already relocated it can be used to compare present circumstance in foreign country with your families former financial circumstances in the U.S;
- Evidence of monthly expenses like a mortgage, rental contract, bills, student loans, car payment, medical bills, etc. See #3 for how information can be used;
- Medical records or evaluations by medical professional supporting any medical hardship. This is usually to show either (a) existing harm or how difficult or impossible it will be to get the necessary treatment in your home country; or (b) perspective harm in the event of separation or relocation. This is more common in mental health;
- Records of membership in community organizations, volunteer confirmation, and evidence of cultural affiliations. This typically goes more to good moral character for you and to show the impact your spouse has made and wont’ be able to continue doing if he or she relocates;
- Birth, marriage, or adoption certificates to document family ties used to support to your claim;
- Country conditions report. The Department of State creates annual Human Rights Reports. You can also look for reports created by other organizations such as the United Nations. These reports are used to support your claim of harm in your native country. I suggest you highlight the relevant passages and refer to them in your letter or brief.
- Any other evidence that supports your claimed hardship.
Before starting down this path, be sure to consult with a qualified immigration attorney. It can mean the difference between success and failure, and save unnecessary fees and months or years of waiting.
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