Proving extreme hardship to a qualifying relative does not guarantee USCIS will approve an I-601 or I-601A waiver. Discretion is a separate, additional hurdle.
In general, adjudicators take two different approaches when reviewing waiver applications and exercising discretion: a strict constructionist approach and a holistic approach.
Under the former, the officer first assesses the severity of a qualifying relative’s hardship without applying discretionary judgment to that evaluation, then separately determines whether the applicant merits a favorable exercise of discretion by balancing favorable and unfavorable factors involving the applicant.
By contrast, under the latter, the officer’s discretionary judgment shapes the assessment of the severity of the qualifying relative’s hardship itself, before the officer separately determines whether the applicant merits a favorable exercise of discretion by balancing favorable and unfavorable factors.
This distinction helps explain why two waiver cases involving seemingly similar hardships can produce different results.
A woman in her early 30s once visited my office seeking help for her husband.
He had traveled to his home country for a green card interview but was not allowed to return to the United States. Despite a notario’s assurances to the contrary, his I-601 waiver had been denied.
When I asked why the waiver was denied, she told me her husband had said he could not prove “enough hardship.”
She did not know what that really meant.
Neither did I.
“Not enough hardship,” without further explanation, can mean several different things.
- Did the evidence fail to establish extreme hardship?
- Did the officer give certain hardship factors little weight?
- Did negative circumstances affect the officer’s assessment?
- Or did the applicant establish the necessary hardship but fail to receive a favorable exercise of discretion?
These are different questions.
And each one points to a different aspect of discretion.
Batara Immigration Law is led by Carlos Batara, a Harvard Law School graduate and immigration attorney with more than 30 years of experience, handling complex hardship cases, including I-601 and I-601A cases.
Table Of Contents
- What Is Discretion In An I-601 Or I-601A Waiver Case?
- The Role Of Discretion In I-601 And I-601A Waiver Decisions
- What Are The Two Approaches To Discretion?
- The Strict Constructionist Approach To I-601 And I-601A Discretion
- The Holistic Approach To I-601 And I-601A Discretion
- How Do The Strict Constructionist And Holistic Approaches Differ?
- Can Hardship To Children Affect The Exercise Of Discretion?
- Why Strong Evidence Matters In A Discretionary Waiver Decision
- Discretion Can Be The Difference Between Eligibility And Approval
What Is Discretion In An I-601 Or I-601A Waiver Case?
Discretion is the authority given to an immigration decision-maker to decide whether an applicant who is legally eligible for immigration relief should actually receive that relief.
I-601 and I-601A waivers are discretionary benefits.
This means establishing the legal requirements for a waiver does not, by itself, entitle an applicant to approval.
One of the principal requirements in many I-601 and I-601A cases is extreme hardship.
An applicant generally must establish that his or her inadmissibility would cause extreme hardship to a qualifying U.S. citizen or lawful permanent resident relative.
But proving the required extreme hardship answers only part of the waiver inquiry.
The applicant must also persuade the government to exercise its discretion favorably.
As a result, two questions arise in a waiver case:
Has the applicant established the extreme hardship required by law?
Should the waiver be granted as a matter of discretion?
Those questions are related, but they are not the same.
The Role Of Discretion In I-601 And I-601A Waiver Decisions
An officer has a four-step role: assess the evidence, determine its significance, consider the circumstances surrounding the application, and decide whether the waiver should be approved — a decision that turns on both eligibility and discretion.
The Board of Immigration Appeals addressed this distinction in Matter of Mendez-Moralez.
The BIA recognized that establishing statutory eligibility for a waiver does not, on its own, entitle an applicant to relief. A favorable exercise of discretion is also required.
The extreme hardship inquiry is concerned with the effects that denial of the waiver would have on the qualifying relative.
The discretionary inquiry extends to circumstances involving the applicant, including favorable and unfavorable considerations in the applicant’s record.
What Are The Two Approaches To Discretion?
How officers exercise their discretion varies. As noted earlier, there are two general approaches.
They differ in two respects: (a) when the use of discretion enters the waiver analysis and (b) how broadly discretionary judgment affects the assessment of the case.
Under the strict constructionist approach, the officer first reviews the hardship factors without applying discretion to them. Only after that review is complete does the officer conduct a separate discretionary balancing of favorable and unfavorable considerations involving the applicant.
Under the holistic approach, when the officer evaluates the hardship factors, the officer applies discretion to that evaluation. The officer then conducts a balancing test, weighing favorable and unfavorable considerations involving the applicant.
The difference can be summarized this way:
Strict constructionist: Evaluate the hardship factors first, without discretion. Then conduct the balancing test.
Holistic: Apply discretion while reviewing the hardship factors. Then conduct the balancing test.
As an immigration attorney, I had long suspected a variance in how officers evaluate hardship claims. In “The Element Of Discretion In I-601 Determinations,” Steven D. Heller, a former USCIS adjudicator, described the two different frameworks, confirming my experiences.
To be clear, the existence of the different evaluation frameworks does not mean every USCIS officer places his or her approach into one of these two categories. Nor does it mean USCIS has formally established two different legal tests for deciding waiver applications.
The Strict Constructionist Approach To I-601 And I-601A Discretion
Under the strict constructionist approach, extreme hardship and favorable discretion are separate stages of the waiver analysis.
The first question is whether the applicant has established the extreme hardship required for the particular waiver.
If the answer is no, the application fails at that threshold.
If the answer is yes, the adjudicator proceeds to the next question: whether the applicant merits the waiver as a matter of discretion.
This approach follows the principle expressed in Matter of Mendez-Moralez: statutory eligibility for a waiver does not create an entitlement to relief.
In simplified form, the analysis looks like this:
Extreme hardship → statutory eligibility → favorable exercise of discretion
To reiterate, under the strict constructionist approach, extreme hardship and discretion are separate questions.
The extreme hardship inquiry generally focuses on the qualifying relative:
- What will happen to the qualifying relative if the applicant cannot immigrate or return to the United States?
- Will the qualifying relative remain in the United States without the applicant?
- Will the qualifying relative relocate abroad to preserve family unity?
- What medical, emotional, financial, educational, employment, safety, or family consequences would follow?
The discretionary inquiry asks a different question:
- Even assuming the required extreme hardship exists, does the applicant merit approval of the waiver?
In making this determination, the officer considers both favorable and unfavorable factors tied to the applicant.
Under a strict constructionist analysis, therefore, an applicant could establish extreme hardship and still lose the waiver because USCIS concludes that negative discretionary considerations outweigh the favorable ones. (This outcome is also possible under the holistic approach.)
The Holistic Approach To I-601 And I-601A Discretion
Under the holistic approach, the officer weighs the hardship factors and the family’s circumstances simultaneously earlier in the assessment process, rather than treating discretion as a separate step that follows an already-completed hardship determination.
In Heller’s article, he calls this approach a “contextual assessment” of hardship factors.
He points out that the holistic approach raises a disturbing issue: can circumstances normally associated with discretion affect how an adjudicator views the hardship evidence itself?
He described this possibility as “ratcheting” the extreme hardship standard one way or another.
In plain language, ratcheting means that circumstances surrounding the applicant may cause an adjudicator to view the hardship evidence more favorably or less favorably, even though those circumstances are not themselves hardship to the qualifying relative.
For example, imagine two applicants who present otherwise similar hardship claims. One applicant has a relatively minor immigration violation. The other has a lengthy history of immigration violations. The hardship suffered by their qualifying relatives might appear similar.
Yet under a holistic approach, an adjudicator’s view of the applicants’ different histories could influence how readily the officer concludes that the hardship rises to the extreme hardship level.
Heller used another example involving occupation. An applicant who worked as a nurse might be viewed differently from an applicant who worked as a web designer, even though occupation is not itself a hardship factor.
The point is not that nurses legally receive a lower extreme hardship standard, or that certain occupations are entitled to more favorable treatment.
They are not.
Rather, ratcheting describes how judgment about circumstances outside the traditional hardship factors can, in practice, shape how persuasive an officer finds the hardship showing. This is why, under the holistic approach, the two inquiries remain separate, but discretion now shapes both: the officer’s judgment affects the hardship assessment itself, not only the later balancing of favorable and unfavorable factors.
Context can help an adjudicator understand a family’s circumstances accurately. But when considerations unrelated to the extreme hardship requirement change how demanding the officer makes that requirement, the boundary between evaluating hardship and exercising discretion starts to blur.
How Do The Strict Constructionist And Holistic Approaches Differ?
Ratcheting shows that the line between hardship and discretion is not always simple to identify.
Even so, the two approaches rest on a real analytical distinction: extreme hardship and discretion are established through two different inquiries, and each inquiry asks a different question.
Extreme hardship is determined by considering the totality of the circumstances, an approach articulated in two major BIA precedential cases, Matter of Cervantes-Gonzales, and Matter of Anderson.
The totality of the circumstances assessment asks what the hardship factors amount to when considered together. A family may have medical, financial, emotional, educational, and country condition hardships. No single factor may independently establish extreme hardship. Their cumulative effect, however, may do so.
The range of factors USCIS may consider is explored further in our article on the 50 questions immigration officers consider in I-601 and I-601A waiver cases.
Discretion, by contrast, involves balancing favorable and unfavorable factors based on the record as a whole. The discretionary balancing test asks a different question: once the relevant favorable and unfavorable considerations are assembled, does the record as a whole warrant a favorable exercise of discretion?
These two inquiries are related, but they serve different functions.
Under the strict constructionist approach, the officer completes the totality of the circumstances assessment without applying discretion to it, then separately conducts the discretionary balancing test.
Under the holistic approach, the officer applies discretion while conducting the totality of the circumstances assessment itself, before conducting the same balancing test.
The strict constructionist approach keeps the two inquiries apart. The holistic approach applies discretion to one before reaching the other.
Can Hardship To Children Affect The Exercise Of Discretion?
Children can play a significant role in a waiver case even when they are not statutory qualifying relatives for the particular waiver being sought.
The extreme hardship requirement must be established through hardship to the qualifying relative identified by the applicable waiver provision. Hardship to a child cannot simply substitute for the legally required hardship to a qualifying relative when the child does not qualify under that provision.
This distinction is sometimes misunderstood.
But that does not make the child’s circumstances irrelevant.
Consider two hypothetical families, each with U.S. citizen children who are not qualifying relatives under the waiver at issue. In one family, the children are five and seven years old. In the other, the children are fifteen and seventeen, and one has a serious medical condition requiring ongoing treatment.
The families may face very different consequences.
- Would the children remain in the United States?
- Would they relocate? Would relocation interrupt their education?
- Do they speak the language of the destination country?
- Does a child have medical, developmental, psychological, or educational needs?
- How would hardship to the children affect their qualifying parent?
The answers may become relevant in more than one way.
Hardship experienced by children sometimes creates additional hardship for a qualifying relative. Their circumstances may also contribute to the broader context in which the waiver application is evaluated.
For example, suppose a child has significant medical or special educational needs. The child may require continuing treatment, specialized schooling, therapy, transportation, supervision, or other services.
If the qualifying relative must coordinate those services alone because the applicant is living abroad, the child’s difficulties create additional financial, emotional, psychological, and practical burdens for the qualifying relative.
If the qualifying relative instead relocates abroad with the applicant, concerns about obtaining comparable medical care, educational services, therapy, or other assistance for the child likewise increase the qualifying relative’s hardship.
In this way, the child’s hardship is not simply being substituted for the hardship required by law.
The child’s circumstances become a source of additional hardship to the qualifying relative.
Each of these examples traces a child’s circumstances back to hardship experienced by the qualifying relative.
However, ratcheting suggests the influence runs deeper still. The presence of U.S. citizen children can shape how an officer reads a case even where their circumstances do not convert neatly into hardship for the qualifying relative — the same dynamic Heller described with an applicant’s occupation or immigration history.
That influence does not lower the legal standard, and it does not make a child a qualifying relative. But it is one more way an officer applies discretion while conducting the hardship assessment, before conducting the same balancing test.
The key point is not to confuse whose hardship legally satisfies the statutory requirement with which family circumstances may be relevant to the overall waiver analysis.
Why Strong Evidence Matters In A Discretionary Waiver Decision
Whether it is a child’s medical needs or the broader circumstances that shape an officer’s assessment, none of it matters unless the record supports it. Discretion does not make evidence less important. It makes strong evidence more important.
An adjudicator cannot properly evaluate circumstances that have not been adequately explained and supported.
- Medical hardship requires medical records and professional opinions. Financial hardship requires income, expense, debt, employment, and household evidence.
- Psychological consequences require records or evaluations from a licensed mental health professional.
- Country conditions may require independent documentation connecting conditions abroad to the family’s particular circumstances.
Evidence provides context.
It helps explain not simply that a hardship exists, but why that hardship is significant to this particular qualifying relative and this particular family.
The same principle applies to discretionary considerations involving the applicant.
When negative circumstances exist, they should not simply be ignored in the hope that the officer will concentrate exclusively on hardship.
Depending on the issue, the record may need evidence that explains the circumstances, demonstrates rehabilitation, establishes positive equities, or otherwise supports a favorable exercise of discretion.
The goal is not merely to accumulate documents. It is to build a record that enables the adjudicator to understand the family’s circumstances and fairly evaluate both extreme hardship and discretion.
Because these are two different inquiries, the record needs to support both.
Discretion Can Be The Difference Between Eligibility And Approval
I-601 and I-601A waiver cases cannot be reduced to the question, “How much hardship does my family have?”
That question is real, but it is incomplete.
A stronger analysis asks two questions:
Can the applicant establish the extreme hardship required by law?
Can the applicant demonstrate that the waiver should be granted as a favorable exercise of discretion?
The two approaches to discretion explain why these two questions can operate differently.
Under the strict constructionist approach, the officer completes the hardship assessment without applying discretion to it, then separately conducts the discretionary balancing test.
Under the holistic approach, the officer applies discretion while conducting the hardship assessment itself, before conducting the same balancing test.
Either way, applicants should not assume that hardship alone determines the result.
A strong waiver application should establish the required extreme hardship, document the family’s circumstances carefully, address unfavorable considerations when necessary, and build a record that supports a favorable exercise of discretion.
I consider this difference significant not simply as a matter of legal theory, but as a matter of case preparation.
Waiver applicants cannot control how an individual adjudicator will view every fact. They can, however, work to ensure that the evidence they submit fully explains the hardship, favorable considerations, negative circumstances, and connections between them.
Reviewed by Carlos Batara, Immigration Attorney
Serving clients through our Hemet headquarters, throughout Riverside County and San Bernardino County, and nationwide through virtual representation.
Last updated: August 2026
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