If at first you don’t succeed, I was taught by my mother, try and try again.
This attitude is one of the most important mindsets for many U.S. spouses trying to help immigrate their spouse born in another country.
Especially those who need to win a hardship waiver to remain together as a family.
What Are The Keys To Winning Hardship Cases?
As a Riverside immigration lawyer, helping clients understand the concept of extreme hardship is critically important to their defense against deportation and separation from family in a variety of cases – especially those revolving around I-601 family unity waivers.
Yet, hardship is perhaps the most difficult immigration concepts to learn and master.
But absolutely necessary.
Extreme hardship, in short, determines victory and defeat, family unity or family separation.
If you lose your hardship battle, your dreams of raising a family, buying a home, and living a long life together are likely to be shattered forever.
Unfortunately, given the vast range of hardship standards in agency as well as judicial decisions, many blog readers have expressed confusion of the extreme hardship standard used for I-601 and I-601A waiver cases.
Further, efforts to obtain clarification from the government about the absence of critically important waiver provisions have been futile.
In this post, I will attempt to unravel the mystery – and show you what type of proof you need to improve you and your spouse’s chances for success.
Click here for more information on how to prepare, organize, and present evidence to support your hardship application.
The goal is to help your family survive and navigate the I-601 family unity process successfully.
Why Immigrants Need I-601 Waivers For Inadmissibility
In most cases, immigrants who entered without inspection (EWI) need to return to their home countries for green card interviews (unless they qualify under a narrow group of exceptions, allowing them to attend their interviews at a local immigration office).
If they have been lived in the U.S. for 180 days without permission, once they leave the United States, they are deemed inadmissible for a period of three years. This is referred to as a three-year bar to re-entry.
If they have lived here for one year without permission, and they depart, however temporary, they are subject to a ten-year bar to re-entry.
This is where the I-601 application for a waiver of grounds of inadmissibility comes into play.
If granted, a waiver forgives an immigrant’s transgression and grants admission to the United States.
To succeed, waiver requests must establish that a qualifying relative will suffer extreme hardship if the immigrant is not allowed to return to the U.S.
So who is a qualifying relative?
For I-601 inadmissibility purposes, only an immigrant’s U.S. citizen or a lawful permanent resident spouse or parent.
What Is Extreme Hardship To A Qualifying Relative For I-601 Waiver Purposes?
In general, there are two parts to an extreme hardship determination.
First, the evidence presented. What evidence has been provided to the immigration court to show how an immigrant’s removal from the U.S. will affect his or her qualifying relatives?
To a large extent, this part of the process is objective.
As discussed earlier in the context of immigration court cases, there are a wide variety of personalized hardship factors which should be evaluated by adjudicators under a totality of the circumstances approach to making I-601 decisions:
One such approach is 8 C.F.R. 1240.58 which set forth a list of factors pertinent to an evaluation of extreme hardship under the former suspension of deportation standard.
- The age of the alien, both at the time of entry to the United States and at the time of application for suspension of deportation;
- 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;
- 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;
- The alien’s ability to obtain employment in the country to which the alien would be returned;
- Length of residence in the United States;
- Existence of other family members who are or will be legally residing in the United States;
- Financial impact of the alien’s departure;
- Impact of a disruption of educational opportunities;
- Psychological impact of the alien’s deportation;
- Current political and economic conditions in the country to which the alien would be returned;
- Family and other ties to the country to which the alien would be returned;
- Contributions to and ties to a community in the United States, including the degree of integration into society;
- Immigration history, including authorized residence in the United States;
- The availability of other means of adjusting to permanent resident status.
The Subjective Nature Of I-601 Extreme Hardship Waivers
The second prong of I-601 decision-making is subjective.
Given that these determinations are discretionary, one government adjudicator may perceive an extreme hardship exists in a particular situation which a different officer would rule to the contrary.
Simply stated, how is the evidence weighed?
In Matter of Monreal, former BIA member Lory Rosenberg explained the reason some immigrants fall short of proving hardship is not due to substantive considerations. Rather, these decisions turn on evidentiary considerations.
In other words, some cases are lost due to insufficient evidence. Other immigrants fail as a result of the weighting process.
Because the evaluation process lacks precise parameters, what one adjudicator thinks is an extreme hardship, another adjudicator might perceive as an ordinary hardship.
Discretionary Extreme Hardship Waivers: Decision-Making Without Exact Parameters
This decision-making reality should not be viewed as sinister.
But the process of navigating inadmissibility waivers must be carefully handled to ensure your success.
The evaluation of hardship has always been subjective, even under the old suspension of deportation standard.
For instance, as the Board of Immigration Appeals long ago stressed, absent a showing of significant or actual potential injury substantially different and more severe than that suffered by the ordinary alien who is deported, an extreme hardship will not be found.
Not much guidance there.
However, there is an important point to be realized.
Under this approach, only three degrees of hardship exist: ordinary, extreme, and unconscionable.
Although simplistic, this approach made it easy for immigrants to understand how their cases would be evaluated.
Ordinary hardship, defeat.
Extreme hardship, victory.
As a immigration permanent residence lawyer, I’ve learned the key to winning an extreme hardship argument in the context of an I-601 waiver is to support the application with good evidence.
By strengthening the objective evidence backing extreme hardship waiver requests, immigrants can reduce the possibility that an extreme hardship will be mistaken for an ordinary hardship.
By Carlos Batara, Immigration Law, Policy, And Politics