If you have been found “inadmissible” during your immigration/visa interview, you can file an Immigration Hardship Waiver to petition the U.S. Citizenship and Immigration Services (USCIS) to allow you to stay in or enter the country to take care of an immediate family member who is legally allowed to be in the U.S. The reason for your waiver should be that your family member cannot provide for themselves, and they would suffer “extreme hardship” if you were not allowed in the country.
USCIS and the immigration system define “extreme hardship” as hardship that would be much worse and more challenging than the relative would experience if you were with them. In other words, it means that they need you to survive, stay healthy, have a roof over their head, get food, and more. A lack of emotional support, homesickness, and similar challenges don’t count as “extreme hardship”.
There are no laws that establish what extreme hardship is; it can vary from applicant to applicant. That’s why USCIS reviews the specific circumstances for each waiver
Here are some examples of visa ineligibilities, with INA references, which are explained further below.
The visa applicant:
- Did not fully complete the visa application and/or provide all required supporting documentation – INA section 221(g)
- Did not establish eligibility for the visa category being applied for or overcome the presumption of being an intending immigrant – INA section 214(b)
- Was convicted of a crime involving moral turpitude – INA section 212(a)(2)(A)(i)(I)
- Was convicted of a drug violation – INA section 212(a)(2)(A)(i)(II)
- Has two or more criminal convictions for which the total sentence of confinement was 5 years or more – INA section 212(a)(2)(B)
- Did not provide an adequate affidavit of support when one was required; therefore denied under public charge – INA section 212(a)(4)
- Misrepresented a material fact or committed fraud to attempt to receive a visa – INA section 212(a)(6)(C)(i)
- Previously remained longer than authorized in the United States – INA section 212(a)(9)(B)(i)
Who Qualifies for an Immigration Hardship Waiver?
The Immigration Hardship Waiver is another chance for those who’ve been denied an immigrant visa, permanent residency, or another immigration status change. In general, if you’ve been deemed inadmissible, meaning you’re not admitted to enter or stay in the U.S.
The must-have qualification for this waiver is to have at least one relative in the U.S. (or who has been granted entry into the U.S.) who relies on you financially. If this person cannot take care of or provide for themselves, you can use them as a claim for your waiver application. Alternatively, you may be able to petition for a loved one to come with you to the U.S. if they would suffer extreme hardship where they are, and you came to the U.S. without them.
USCIS recognizes the importance of family unity and the ability of parents and other caregivers to provide for the well-being of children. Depending on the particular facts of a case, either the continuation of one’s existing caregiving duties under new and difficult circumstances or the need to assume someone else’s caregiving duties can be sufficiently burdensome to rise to the level of extreme hardship. The children do not need to be U.S. citizens or lawful permanent residents (LPRs) in such cases.
In cases involving the separation of spouses in which the qualifying relative is the primary caretaker and the applicant is the primary income earner, the income earner’s refusal of admission often causes economic loss to the caregiver. Although economic loss alone is generally a common consequence of a denial of admission, depending on the particular circumstances the economic loss associated with the denial of admission may create burdens on the caregiver that are severe enough to rise to the level of extreme hardship. That can occur, for example, when the qualifying relative must take on the additional burdens of primary income earner while remaining the primary caregiver. That dual responsibility may significantly disrupt the qualifying relative’s ability to meet his or her own basic subsistence needs or those of the person(s) for whom the care is being provided. In such cases, the dual burden would often support a finding of extreme hardship. In addition, the qualifying relative may suffer significant emotional and psychological impacts from being the sole caregiver of the child(ren) that exceed the common consequences of being left as a sole parent.
In cases involving the separation of spouses in which the qualifying relative is the primary income earner and the applicant is the primary caretaker, the caretaker’s refusal of admission can result in a substantial shift of caregiving responsibility from the applicant to the qualifying relative. Such a shift may significantly affect the qualifying relative’s ability to earn income for the family; disrupt family, social, and cultural ties; or hinder the child(ren)’s psychological, cognitive, or emotional development.
The shift may also frustrate or complicate the qualifying relative’s efforts to provide a healthy, stable, and caring environment for the child(ren). Such additional emotional, psychological and/or economic stress for the qualifying relative could exceed the levels of hardship that ordinarily result from family separation, and rise to the level of extreme hardship.
The significant shifting of caregiving or income-earning responsibilities would often weigh heavily in support a finding of extreme hardship to the qualifying relative, provided the applicant shows:
- The existence of a bona fide relationship between the applicant and the child(ren);
- The existence of a bona fide relationship between the qualifying relative and the child(ren); and
- The substantial shifting of caregiving or income-earning responsibilities under circumstances in which the ability to adequately care for the children would be significantly compromised.
To prove a bona fide relationship to the child(ren), the applicant and qualifying relative should have emotional and/or financial ties or a genuine concern and interest for the child(ren)’s support, instruction, and general welfare. Evidence that can establish such a relationship includes (but is not limited to):
- Income tax returns;
- Medical or insurance records;
- School records;
- Correspondence between the parties; or
- Affidavits of friends, neighbors, school officials, or other associates knowledgeable about the relationship.
To prove the qualifying relative would take on the additional caregiving or income-earning responsibilities, the applicant needs to show that the qualifying relative either (1) is a parent of the child(ren) in question or (2) otherwise has the bona fide intent to assume those responsibilities. Evidence of such an intent could include (but is not limited to):
- Legal custody or guardianship of the child;
- Other legal obligation to take over parental responsibilities;
- Affidavit signed by qualifying relative to take over parental or other caregiving responsibilities; or
- Affidavits of friends, neighbors, school officials, or other associates knowledgeable about the qualifying relative’s relationship with the children or intentions to assume parental or other caregiving responsibilities.
Hypothetical cases that can help officers determine when cases present factors that rise to the level of extreme hardship. These hypotheticals are not meant to be exhaustive or all-inclusive with respect to the facts or scenarios that may be presented for adjudication and that may give rise to extreme hardship. Although a USCIS officer presented with similar scenarios as those presented in the hypotheticals could reasonably reach the same conclusions described below, extreme hardship determinations are made on a case-by case basis in the totality of the circumstances. An extreme hardship determination will always depend on the facts of each individual case.
For purposes of the following hypotheticals, it is assumed that:
- The applicant is inadmissible under a ground that may be waived based on a showing of extreme hardship to a qualifying relative spouse or parent.
- The facts asserted in the hypotheticals are supported by appropriate documentation.
The officer makes extreme hardship determinations based on the factors, arguments, and evidence submitted.[1] Therefore, the officer should consider any submission from the applicant bearing on the extreme hardship determination. The officer may also consider factors, arguments, and evidence relevant to the extreme hardship determination that the applicant has not specifically presented, such as those addressed in Department of State (DOS) information on country conditions[2] or other U.S. Government determinations regarding country conditions, including a country’s designation for Temporary Protected Status (TPS). Officers must base their decisions on the totality of the evidence and circumstances presented.
The common consequences of denying admission, in and of themselves, do not warrant a finding of extreme hardship.[3] The Board of Immigration Appeals (BIA) has held that the common consequences of denying admission include, but are not limited to, the following:
- Family separation;
- Economic detriment;
- Difficulties of readjusting to life in the new country;
- The quality and availability of educational opportunities abroad;
- Inferior quality of medical services and facilities; and
- Ability to pursue a chosen employment abroad.
While extreme hardship must involve more than the common consequences of denying admission, the extreme hardship standard is not as high as the significantly more burdensome “exceptional and extremely unusual” hardship standard that that applies to other forms of immigration adjudications, such as cancellation of removal.
The 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. In some cases, common consequences that on their own do not constitute extreme hardship may result in extreme hardship when assessed cumulatively with other factors.
The officer must weigh all factors individually and cumulatively, as follows:
- First, the officer must consider whether any factor set forth individually rises to the level of extreme hardship under the totality of the circumstances.
- Second, if any factor alone does not rise to the level of extreme hardship, the officer must consider all factors together to determine whether they cumulatively rise to the level of extreme hardship. This includes hardships to multiple qualifying relatives.
When considering the factors, whether individually or cumulatively, all factors, including negative factors, must be evaluated in the totality of the circumstances.
Some of the factors apply when the qualifying relative would remain in the United States without the applicant. Other factors apply when the qualifying relative would relocate abroad. Some of the factors might apply under either circumstance.
Cases involving disabled individuals often involve hardships that rise above the common consequences. If a government agency has made a formal disability determination with regard to the qualifying relative, or with regard to a family member of the qualifying relative who is dependent on the qualifying relative for care, that factor would often weigh heavily in support of finding that either relocation or separation would result
in extreme hardship under the totality of the circumstances.
In cases involving either (1) relocation of the qualifying relative with a disability or (2) relocation of both the qualifying relative and the relevant family member with a disability, the applicant will need to show that the services available to the disabled individual in the country of relocation are unavailable or significantly inferior to those available to him or her in the United States. In such cases, the disability determination would often weigh heavily in support of a finding of extreme hardship.
In cases involving separation, the applicant will need to show that the qualifying relative with a disability, or the relevant family member with a disability, generally requires the applicant’s assistance for care due to the disability. Where replacement care is not realistically available and obtainable, the disability determination would often weigh heavily in support of a finding of extreme hardship.
Absent a formal disability determination, an applicant may provide other evidence that a qualifying relative or relevant individual suffers from a medical condition, whether mental or physical, that makes either travel to, or residence in, the country of relocation detrimental to the qualifying relative or family member’s health or safety. Similarly, an applicant may provide other evidence that the condition of the qualifying relative requires the applicant’s assistance for care.
However, there might be some other attending circumstances and factors which might be the reasons of allowing the petition for hardship waiver but keep in mind, high level of expertise and immigration related wisdom is required to prepare concrete hardship waiver which then could have a chance to be succeeded.
If you believe you have a reasonable circumstances and valid grounds to file hardship waiver, you can discuss your case with our immigration lawyer at Qazi Law Associates with peace of mind, who will handle your matter with expertise and enthusiasm with intend to be successful.
An Immigration lawyer can help you determine if you meet these or other qualifications to request a hardship waiver.
If you have any questions or need further information, please do not hesitate to schedule of appointment for free consultation session.
