Extreme Hardship Waivers In Immigration Cases
Green cards obtained through marriage to a U.S. citizen are a popular way to achieve permanent residency status in the United States. But what happens when the non-citizen spouse in the relationship did not enter the country lawfully? Is there any hope for star-crossed lovers in this situation?
Rumors abound on what, exactly, can and cannot be done for a non-citizen spouse. Any spouse who wants to obtain a green card and has been unlawfully present in the U.S. for over 6 months but less than 1 year is subject to a 3-year bar from the U.S. before they can return with proper documentation. For those who spent more than 1 year out of status, the punishment is an even steeper 10-year bar.
Let’s look at a simple example. Tony, a native of Guatemala, enters the U.S. in 2003 without a visa. He later meets and falls in love with Jessica, a U.S. citizen, and they marry in 2008. They eventually have two children together in the United States, who of course are U.S. citizens. Jessica can start the green card process by first filing a family petition (known as Form I-130) for Tony in the U.S. After the petition is approved, Tony would have to return to Guatemala for 10 years since he was unlawfully present in the U.S. for more than 1 year.
The only way to lift the 10-year bar is to apply for an extreme hardship waiver using Form I-601. For the waiver to be granted, Tony must prove that the separation will result in “extreme hardship” to Jessica. Notably, extreme hardship towards children is not a factor for this specific waiver. Only extreme hardship to the U.S. citizen or green card holding spouse left behind is considered.
Prior to January 2013, U.S. immigration law only allowed Tony to file the request for an extreme hardship waiver after returning to Guatemala. In that scenario, if Tony returned to Guatemala, then successfully established extreme hardship to Jessica, his waiver would have been approved and he would have been granted an immigrant visa to return to the U.S. lawfully. However, if his waiver were denied, he would have been stuck outside the United States—unable to return for 10 years.
Fortunately, effective March 4, 2013 the Department of Homeland Security began allowing immigrant to apply for extreme hardship waivers from within the United States. If approved, the applicant will only have to leave the U.S. temporarily to complete visa processing. If denied, the applicant must decide whether to remain in the U.S. in the hope that Congress and the President will enact a new amnesty law, or return to their native country to serve the 3 or 10-year bar.
Proving “extreme hardship” to a relative in the United States is not limited to cases where an immigrant who has married a U.S. citizen would otherwise be subject to a 3- or 10-year bar. Several other immigration applications require demonstration of extreme hardship to a qualifying relative in the U.S. in order to secure a waiver of certain “grounds of inadmissibility.”
It is important to understand who actually needs to suffer the extreme hardship in order to qualify—as it varies based on the application. Here are some examples of the “qualifying relatives” for three common waivers:
- unlawful presence waiver – extreme hardship must be to a U.S. citizen or lawful permanent resident spouse or parent;
- 212(h) waiver for certain crimes – extreme hardship must be to a U.S. citizen or lawful permanent resident spouse, parent, son, or daughter; and
- 212(i) waiver for misrepresentation/fraud – extreme hardship must be to a U.S. citizen or lawful permanent resident spouse or parent.
It can be very difficult to determine whether the facts and circumstances of a particular case constitute the kind of “extreme hardship” required for one of these waivers. Extreme hardship is not a fixed term, but differs from family to family. The following factors have been recognized as relevant in determining extreme hardship:
- family ties to the United States;
- family ties outside the United States of the qualifying relative;
- the conditions in the country to which the qualifying relative would relocate;
- the financial impact of departure from the United States; and
- significant health conditions (particularly when tied to unsuitable medical care in the country to which the qualifying relative would relocate).
Courts have held that although political and economic conditions in the immigrant’s home country are relevant, they alone cannot establish extreme hardship. The same holds true for economic detriment (such as the loss of a job) in the absence of other hardship factors.
Whether filed affirmatively or in deportation proceedings, applications for extreme hardship waivers are complicated and require thorough preparation to maximize the chances of approval.
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