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.
Why Immigrants Need I-601 Waivers
In most I-601 waiver cases, immigrants who entered the United States without inspection are required to return to their home countries for permanent residence interviews (unless they qualify under a narrow group of exceptions, allowing them to be interviewed 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.
These are called inadmissibility bars.
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.
Who Is A I-601 Qualifying Relative?
A qualifying relative is a U.S citizen or permanent resident spouse or parent of the immigrant who seeks a family unity waiver to re-enter the United States after their consular processing interview abroad.
To qualify for family unity waiver, immigration officers review whether qualifying relatives will suffer an extreme hardship if their immigrant relative is not allowed to legally return to the U.S.
If the goverment does not find extreme hardship, the immigrant’s I-601 waiver application will be denied.
Does A Qualifying Relative Need To Be The Same Person As The I-130 Petitioner?
The petitioner for an immigrant seeking a green card and a qualifying relative for hardship purposes do not need to be the same person.
In some cases, immigrants can still proceed with the two-step green card process by filing a waiver application of a third person.
Here’s an example.
Jessica, A U.S. citizen, recently turned 21. She wants to file an I-130 petition and immigrate her mother.
Since her mother, Jasmin, entered the U.S. without inspection, she has to return to her home country for the green card interview.
But due to living here a long time, Jasmin will need to win an I-601 waiver to re-enter the country. This means she needs to demonstrate extreme hardship to a qualifying relative.
Jessica is not an I-601 qualifying relative. Jessica’s hardship does not count.
Only spouses and parents who are U.S. citizens or lawful permanent residents are qualifying relatives for family unity hardshp purposes.
However, Jasmin’s mother is a permanent resident. She is a qualifying relative.
If Jasmin can prove that her mother will suffer an extreme hardship, Jasmin will be granted a waiver and allowed to return to the United States.
On the other hand, if Jasmin’s mother was deceased, and both her husband and father lacked legal immigration status, she would not be eligible for a waiver despite the I-130 petition filed by her daughter.
In short, it’s crucial you know your qualifying relatives.
You have to know whom you’re building your waiver case around, because your evidence must focus on the hardship of your I-601 qualifying relatives.
Click here for more information on how to prepare, organize, and present evidence to support your hardship application.
What Is Hardship To I-601 Qualifying Relatives For Family Unity Waivers?
As a Riverside immigration lawyer, helping clients understand the concept of extreme hardship is critically important to their defense against family separation.
Yet, hardship is perhaps the most difficult immigration concept to learn and master.
But mastering it is absolutely necessary.
Let’s get started.
In general, there are two parts to an extreme hardship determination.
First, the evidence presented. What evidence has been provided to the immigration agency to show how an immigrant’s inability to return to the U.S. will affect his or her qualifying relatives?
To a large extent, this part of the process is objective.
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 developed by immigration courts.
- 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.
Do Not Overlook Indirect Factors Of Hardship For I-601 Qualifying Relatives
Of course, a shortcoming of the list above are the hardship factors which pertain to waiver applicants.
Immigrants seeking relief, after all, are excluded from the definition of I-601 qualifying relatives.
Not so fast.
As the USCIS guidelines point out, an applicant’s condition and prospective situation may show that denial of his admission would have a significant emotional or financial impact on one or more qualifying relatives in the United States.
In such cases, the USCIS officer may consider such impacts when determining whether the qualifying relative(s) would experience extreme hardship upon the denial of admission to the immigrant.
Moreover, even hardship to other non-qualifying relatives may be relevant.
According to the government, if an I-601 applicant claims hardship to an individual who is not a qualifying relative for purposes of the relevant waiver, the officer should consider the alleged hardship only as it affects one or more qualifying relatives.
To use the example above, Jessica is not a qualifying relative for I-601 purposes. The hardship she will suffer because of separation from her mother, Jasmin, does not count as a direct factor.
But if her hardship will adversely impact her grandmother, who is a qualifying relative, it is an indirect factor to be assessed by USCIS.
In other words, statutory hardship boundaries are not absolute.
The law may have stripped officers from weighing the hardship effects on an immigrant facing separation from family and community ties, from the loss of upward employment mobility, and removal of educational opportunites.
However, I’ve witnessed that in most close families, these same factors have a negative impact on qualifying relatives who stand to lose the love, support, and presence of a mother, father, husband, wife, or child.
Hence, if presented properly, USCIS agents must consider such indirect hardship factors in family unity waiver evaluations.
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 adjudicator may perceive that an extreme hardship exists in a particular situation which a different officer would rule to the contrary.
Simply stated, how is the evidence weighed?
Commentators have long recognized 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.
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.
Nonetheless, there is an important point to be realized.
Under an extreme hardship formula, only three degrees of hardship exist: ordinary, extreme, and unconscionable.
Although simplistic, this approach makes it easy for immigrants to grasp how their cases will be assessed.
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 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