What is Extreme Hardship?

With all the excitement and buzz about the new I-601A Provisional Waiver process, described in Benach Collopy’s live video chat and our previous posts, it is important to remember that what has changed for certain non-citizens and their family members is the procedure for applying for a waiver of inadmissibility, not the substance of the legal standard.  I-601A Provisional Waivers of inadmissibility for unlawful presence in the United States will soon be available to assure family unity for certain eligible applicants who seek permanent resident status.  Among other requirements, to be eligible for such a waiver of inadmissibility, applicants for I-601A Provisional Waivers must demonstrate that they have the requisite qualifying relative – in this case, a United States citizen spouse or parent – and that their U.S. citizen spouse or parent will suffer “extreme hardship” if the applicant is not allowed to re-enter the United States as a lawful permanent resident.  Of course, every family member who is forcibly separated from their loved ones suffers some degree of hardship.  But the I-601A Provisional Waiver requires a showing that the hardship would be extreme.  So, what is extreme hardship, and how can an applicant demonstrate extreme hardship?

Extreme hardship is hardship beyond the normal hardship that is suffered when family members are separated from one another.  This can be a difficult standard to meet and requires substantial supporting evidence, so it is important that applicants retain competent immigration attorneys who are experienced in preparing extreme hardship waivers.  The factors considered in determining whether the U.S. citizen spouse or parent will suffer extreme hardship may include:

  • The presence of family ties within and outside of the United States, particularly within the country of relocation;
  • The emotional and psychological impact of separation on the U.S. citizen relative;
  • The political, economic, and social conditions in the country of relocation;
  • The financial and professional impact on the U.S. citizen relative;
  • Any significant health conditions, particularly when tied to the unavailability of suitable medical care in the country of relocation;
  • The U.S. citizen’s ability to raise children in the country of relocation and other quality of life factors; and
  • The U.S. citizen’s age, length of residence in the United States, health, technical skills, employability, and other factors.

These factors are weighed in the aggregate, so it is important to highlight and thoroughly document every possible hardship factor – what matters in the extreme hardship analysis is the totality of the circumstances.  Moreover, the applicant should show extreme hardship to the U.S. citizen spouse or parent in each of two different scenarios: (1) if the U.S. citizen remained in the United States without the applicant; and (2) if the U.S. citizen accompanied the applicant to his or her home country.

The process of preparing an I-601A Provisional Waiver application, similar to preparing an I-601 application for a waiver of inadmissibility based on extreme hardship, is labor intensive and requires extensive documentation.  The applicant must document who he or she is, as well as any connections to the United States, familial and otherwise.  Such documentation may include government-issued identification, passports, marriage certificates, children’s birth certificates, a list of all U.S. citizen and permanent resident family members with proof of their immigration status and relationship to the applicant, a list of all relatives in the country of relocation, photographs with family members, personal declarations, and letters of support from relatives, employers, friends, and community members.  The applicant and the qualifying relative’s personal declarations are quite possibly the most important documentation for demonstrating extreme hardship, as they fully describe in the applicant’s and relative’s own words the totality of all of the hardship factors that would affect their family if the I-601 Provisional Waiver is not granted.  At Benach Collopy, we spend a significant amount of time with our clients, working with them to draft these important documents.

The applicant and U.S. citizen relative should also submit documentation that shows their financial ties to the United States, debt incurred in the United States, and the financial hardship that would be caused by the applicant’s continued inadmissibility to the United States.  This may include mortgage, lease, or deed documentation; documentation of property ownership; evidence of loans or other debts; monthly bills; insurance; other regular family expenses; tax returns and W-2 forms; social security records; evidence of current employment; or documentation showing financial support of family members in the U.S. and abroad.  Additionally, evidence of the economic and financial conditions in the applicant’s home country may assist in establishing extreme financial hardship.  If a country has a high unemployment rate or significantly lower wages than those paid for the same job in the United States, those factors may be helpful in showing that the U.S. citizen would suffer financially, either because she no longer has her husband’s income to help support the family or because she would be unable to obtain a similar position in the applicant’s home country.

Medical and psychological hardship is often one of the strongest hardship factors to highlight in preparing an extreme hardship waiver application, such as the I-601A Provisional Waiver.  To document this factor, applicants should obtain letters from medical professionals (including treating physicians, specialists, psychiatrists, psychologists, or therapists), which explain the family member’s diagnosis and his or her medical and treatment needs.  It is also helpful to submit documentation of doctor and hospital visits, prescription medications, and evidence of family medical history or risk factors.  Quite possibly the most important piece of evidence of medical hardship is a thorough report prepared by the family member’s treating physician or licensed mental health professional.  At Benach Collopy, we work with our clients’ doctors and therapists to finalize their reports and to ensure their legal sufficiency and effectiveness.  If mental health is a relevant hardship factor in our client’s case, we also assist our client in working with a forensic psychologist who is experienced in documenting extreme psychological hardship, which can range from anxiety and depression to more serious psychological disorders.  Finally, it is important to also document the health care system of the applicant’s home country, as well as any deficiencies, to demonstrate that the U.S. citizen family member could not relocate to that country without experiencing extreme medical hardship.

Although children are not considered “qualifying relatives” for purposes of the I-601A Provisional Waiver process, their hardship factors may still be relevant as well, as they could add to the qualifying relative’s own hardship.  For instance, if a child has a learning disability that requires special education and increased parental involvement, the inability of the applicant to remain with that child in the United States may cause his U.S. citizen spouse to suffer extreme hardship, because without the applicant, she would suddenly have to provide for that child’s needs on her own.  Thus, any documentation of children’s special needs, their progress in school, and their awards and activities may also be helpful evidence in demonstrating extreme hardship.

Finally, since there is an element of discretion involved in the adjudication of an I-601A Hardship Waiver, it is important to document the applicant’s good moral character and contributions to the communities of which the applicant is a part.

Of course, the hardship factors and types of evidence mentioned above are not exhaustive.  At Benach Collopy, we spend a significant amount of time with our clients to determine each individual’s extreme hardship factors and how they can best be presented through documentary evidence to achieve a successful resolution to a waiver application.  We plan to continue with this practice in our clients’ I-601A Provisional Waiver applications, and look forward to assisting our clients in fighting for togetherness based on the extreme hardship that a separation or relocation would bring to their families.

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