Extreme Hardship

Applicants for permanent residence based on family or employment-based petitions must not only demonstrate the validity of the underlying petition and relationship, but also that they qualify for permanent residence.  The immigration law contains a list of reasons (“grounds of inadmissibility”) to deny someone permanent residence including, but not limited to, criminal convictions, fraud, and unlawful presence (discussed in last week’s column).  U.S. Citizenship & Immigration Services (“USCIS”) may waive some (not all) grounds of inadmissibility if the applicant can demonstrate “extreme hardship” to certain qualifying relatives.  For example, waivers for fraud or unlawful presence require a showing of extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent; waivers for criminal grounds of inadmissibility require a showing of extreme hardship to U.S. citizen or lawful permanent resident spouse, parent or child.

USCIS determines whether extreme hardship exists by balancing factors such as the qualifying relative’s lawful permanent resident or U.S. citizen family ties to the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of the applicant’s departure from this country; and significant conditions of health, particularly when ties to an unavailability of suitable medical care in such country.  USCIS examines each case individually, based on the documents submitted.  As most waiver applicants will never meet the immigration officer deciding their case, the most challenging aspect of these cases is to make your case on the documents alone.

Consequently, it is very important not only to include detailed declarations from the qualifying relative(s) and applicant, but as much objective documentation substantiating any claims made as well.  Medical records, tax returns, proof of employment, school records, monthly bills, home and/or business ownership, articles detailing the economic and security situation in the applicants’ home country, and letters from family and friends are but a few examples.  The purpose of the waiver package is to document how the qualifying relative would suffer extreme hardship if forced to return to the applicant’s home country with the applicant, or be forced to live in the United States separated from the applicant.

Applicants for permanent residence who may need a waiver should consult with a reputable immigration lawyer to determine whether or not they have the necessary qualifying relatives and, if so, should work closely with their lawyer to provide all documentation requested as these cases are very labor intensive.  The approval of such waivers is never guaranteed, and is within the complete discretion of USCIS.

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