Proving “Extreme Hardship” in Immigration Cases

Some types of immigration waivers can be granted only if the applicant can show that denial would result in “extreme hardship”.

The “extreme hardship” must be to a qualifying immediate family member who is a U.S. citizen or lawful permanent resident (“green card” holder).

Depending on the waiver being sought, a qualifying family member is usually defined as a spouse and, in most cases, a parent or child.

To help you better understand “extreme hardship” in immigration cases, our California immigration lawyers discuss the following, below:

• 1. When is the “extreme hardship” test used?
• 2. What waivers does the test apply to?
• 3. Who counts as a “qualifying family member?”
• 4. How is extreme hardship calculated?
  • 4.1. Extreme hardship factors
  • 4.2. Are some factors more important than others?
  • 4.3. Does it matter how many qualifying relatives I have?
• 5. How does USCIS decide whether to grant a waiver?
• 6. What kind of evidence can I use to prove extreme hardship?

1. When is the “extreme hardship” test used?

Certain conditions – including conviction of a removable (deportable) crime or an “inadmissible” crime – can prevent an immigrant from entering or remaining in the U.S. lawfully.

The United States Citizenship and Immigration Services (“USCIS”) has the discretion to waive many of these conditions.

But sometimes a waiver is only available if the non-citizen can prove that if he or she is not admitted into, or allowed to stay in, the U.S. it would result in “extreme hardship” to the applicant’s family.

In others — such as the waiver of fraud-related inadmissibility in cases of Violence Against Women Act (VAWA) self-petitioners — hardship to the immigrant him- or herself also counts.

2. What waivers does the test apply to?

Waivers to which the “extreme hardship” test to family applies include:

• Form I-601 waiver of deportation or barred entry,
• Form I-601(a) provisional unlawful presence waiver,
• Immigration and Nationality Act (“INA”) 212(h) waiver of inadmissibility for certain crimes,
• INA 212(i) waiver of inadmissibility for fraud or willful misrepresentation,
• INA 216(c) waiver of conditions on lawful permanent resident status,
• Suspension of removal and cancellation of removal under Section 203 of the Nicaraguan Adjustment and Central America Relief Act (NACARA), and
• Suspension of deportation under former INA section 244(a)(1) (as in effect prior to April 1, 1997).

3. Who counts as a “qualifying family member?”

Different waivers have different definitions of “qualifying relative.” In all cases, a spouse counts as a qualifying family member.

In most cases, parents and/or children also qualify for the extreme hardship test.

Read the instructions for the particular waiver being sought to see who counts as a qualifying relative in a given situation.

4. How is extreme hardship calculated?

“Extreme hardship” is not clearly defined under U.S. law. Rather there are factors that the USCIS adjudicator will take into account on a case-by-case basis.

Not all of these issues must be present and there may be other factors that create hardship in a given case.

The USCIS must consider all relevant factors. And even if no single factor rises to the level of “extreme hardship,” the effect of all the hardships when taken together may be enough.

Two important things to keep in mind, however:

1. Extreme hardship requires a degree of hardship beyond that typically associated with deportation; and
2. The decision as to whether extreme hardship would result is entirely within the discretion of the USCIS officer handling the application.

4.1. Extreme hardship factors

Factors the USCIS officer will take into account when determining extreme hardship can include (but are not limited to):

1. The age of the alien, both at the time of entry to the United States and at the time of the application for relief;
2. The age, number, and immigration status of the alien’s children and their ability to speak the native language and to adjust to life in the country of return;
3. The health condition of the alien or the alien’s children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned;
4. The alien’s ability to obtain employment in the country to which the alien would be returned;
5. The alien’s length of residence in the United States;
6. The existence of other family members who are or will be legally residing in the United States;
7. The financial impact of the alien’s departure;
8. The impact of a disruption of educational opportunities;
9. The psychological impact of the alien’s deportation;
10. The current political and economic conditions in the country to which the alien would be returned;
11. Family and other ties to the country to which the alien would be returned;
12. Contributions to and ties to a community in the United States, including the degree of integration into society;
13. Immigration history, including authorized residence in the United States; and
14. Where applicable, the availability of other means of adjusting to permanent resident status.¹

4.2. Are some factors more important than others?

Yes, depending on the particular waiver being sought. But, in general, mere economic challenges and difficulty in adjusting to a new life hold less weight than serious medical conditions or dangerous conditions within another country.

4.3. Does it matter how many qualifying relatives I have?

A waiver applicant needs to show extreme hardship to only one qualifying relative.

Or the applicant can show hardship to multiple family members that would not qualify as extreme as to any one of them, but which, when considered in the aggregate, add up to extreme hardship.

There is no hard and fast rule.

5. How does USCIS decide whether to grant a waiver?

Deciding whether to grant a waiver is a two-step discretionary process:

First, the USCIS officer decides whether the alleged hardship is “extreme.”²

The officer does this by looking at both:

• Whether it is reasonably foreseeable that the qualifying relative would relocate with the alien and, if so, whether it is more likely than not that the relocation would result in extreme hardship; and
• Whether it is reasonably foreseeable that the qualifying relative would remain in the United States and, if so, more likely than not that the separation would result in extreme hardship.

These options are not mutually exclusive. An applicant may satisfy the extreme hardship requirement by showing that both relocation and separation are reasonably foreseeable and that each would more likely than not result in extreme hardship.

Keep in mind, however, that extreme hardship is not the only test in deciding whether to allow an immigrant to enter into, or remain inside, the United States.

Even when an applicant demonstrates extreme hardship, the USCIS officer has considerable discretion in deciding whether all the circumstances (not just extreme hardship) merit the granting of a waiver.

6. What kind of evidence can I use to prove extreme hardship?

An application should carefully read the instructions that accompany the USCIS form for the type of waiver being sought. The instructions will usually list the types of supporting evidence that an applicant may submit.

In general, however, such evidence will often include (but is not limited to):

• Expert opinions;
• Medical or mental health tests and evaluations by licensed professionals;
• Official documents, such as birth certificates, marriage certificates, adoption papers, or other court documents;
• Photographs;
• Evidence of employment or business ties, such as payroll records or tax statements;
• Bank records and other financial records;
• Membership records in community organizations, confirmation of volunteer activities, or cultural affiliations;
• Newspaper articles and reports;
• Country reports from official and private organizations;
• Personal oral testimony;
• Affidavits and statements that are signed “under penalty of perjury,” and
• Letters from the applicant or any other person.

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If you or someone you know is inadmissible or at risk of deportation, we invite you to contact us for a free consultation.

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