RAMA LAW IMMIGRATION PRACTICE GROUP
EXTREME HARDSHIP (I-601) AND OTHER WAIVERS
In certain circumstances an individual may be deemed inadmissible to enter the US either as an immigrant or nonimmigrant. Various grounds for inadmissibility exist, the most common ones are;
1. A prior criminal history;
2. The commission of fraud in obtaining an immigration benefit;
3. Perhaps most common of all is the overseas applicant who is subject to the 3/10 year bars due to prior periods of overstay in the US of over 6 months or 12 months.
Waivers are available for both immigrant and non-immigrant applicants. Determining grounds of inadmissibility and the availability of a waiver often requires a complex analysis of your particular case.
Immigrant Waivers
In these cases an applicant for an immigrant or K visa is required to submit an extreme hardship or I-601 waiver, so called as the form to be submitted is form I-601.
The waiver application has to be extremely well documented to have a good chance of success
Approval of such application requires a finding that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the United States citizen or lawful permanent resident spouse or parent of the applicant Approval also requires a favorable exercise of discretion from the Attorney General. This requires a weighing of all factors, the favorable against the unfavorable, in each case.
All claims of hardship must be supported by documentary evidence or explanation specifying the hardship. Family separation and financial inconvenience, in and of themselves, do not necessarily constitute extreme hardship. Therefore, it is important for your spouse or parent to describe and document any other claim that might be a hardship. The above-requested information is necessary to render an equitable and fair decision on your Application for Waiver of Grounds of Excludability (I-601).
A waiver of section 212 of the Immigration and Nationality Act is dependent first upon a showing that the bar imposes an extreme hardship on a qualifying family member. Congress provided this waiver but limited its application. By such limitation it is evident that it did not intend that a waiver be granted merely due to the fact that a qualifying relationship existed. The key term in the provision is "extreme" and thus only in cases of real actual or prospective injury to the United States national or lawful permanent resident will the bar be removed. Common results of the bar, such as separation, financial difficulties, etc., in themselves are insufficient to warrant approval of an application unless combined with much more extreme impacts. With this qualification in mind, furnish documentary evidence proving that failure to receive the waiver requested would result in extreme hardship to your US citizen spouse or parent.
Extreme hardship can be demonstrated in many aspects of your spouse or parent's life such as:
HEALTH - Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term.
FINANCIAL CONSIDERATIONS - Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents).
EDUCATION - Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.
PERSONAL CONSIDERATIONS - Close relatives in the United States and /or your country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States .
SPECIAL FACTORS - Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
Any other situation that you feel may help you meet the burden of extreme hardship.
Please be very detailed as to how you meet the "extreme hardship" burden. Keep in mind that the hardship must be to your qualifying family member - not to you.
Non immigrant Waivers
Applicants for nonimmigrant visas, such as B1/B2, H-1B, L-1, or J-1 can apply for waivers of inadmissibility, and on that ground can be granted visas or admission to the U.S. A nonimmigrant waiver is applied for at a U.S. consulate in conjunction with a nonimmigrant visa application and no specific form is required. The standard of proof for a nonimmigrant waiver is often easier easier to meet than for an immigrant waiver.
The following factors are considered in granting a nonimmigrant waiver:
- Risk of harm to society if the applicant is admitted.
- The seriousness of the applicant's prior immigration law, or criminal law, violations, if any.
- The nature of the applicant's reasons for wishing to enter the United States.
While a nonimmigrant waiver is easier to obtain, the drawback is that it is temporary. It is valid for a five year period but only authorizes nonimmigrant admissions. It does not authorize an alien to apply for permanent residence.
