"Extreme Hardship" Waivers Following an Immigrant Visa Denial

Under certain circumstances when an immigrant visa to the U.S. is denied, the applicant might be able to overcome the denial by requesting what's often called an “extreme hardship waiver.”

Under certain circumstances when an immigrant visa to the U.S. is denied, the applicant might be able to overcome the denial by requesting what's often called an “extreme hardship waiver.” Such waivers are mainly used when people apply for immigrant visas to live permanently in the U.S.—for example, after having been petitioned by a U.S.-based family member or employer.

What Is an Extreme Hardship Waiver?

An extreme hardship waiver means that someone asks the U.S. government to approve an immigrant visa or green card application despite the person having been determined inadmissible to the U.S. and therefore ineligible for a visa.

You would most likely request this waiver by preparing Form I-601, Application for Waiver of Grounds of Inadmissibility, with accompanying documents backing up your request. You would file this with either the U.S. embassy or consulate processing your visa application abroad or with U.S. Citizenship and Immigration Services (USCIS) if you are already residing in the United States and eligible to have your application for a green card processed there (in other words, you are "adjusting status").

Note: If you are currently abroad, but you have an I-485 pending with USCIS (for adjustment of status) or you are filing Form I-360 or for a T nonimmigrant visa, you would also file your waiver request with USCIS.

There's one important situation where applicants don't use the Form I-601: If you are the relative of a U.S. citizen or permanent resident petitioner and you are currently residing in the U.S. and want to apply for a waiver of the unlawful presence ground of inadmissibility, you would use USCIS Form I-601A. This is an unusual procedure, in that you'd send the waiver request to USCIS before departing to your home country for your consular interview for an immigrant visa, to avoid the possibility of being forced to stay outside the U.S. for up to ten years as a penalty for your unlawful stay. For details on who might choose this stateside procedure and why it's beneficial, see Staying in the U.S. With the I-601A Provisional Waiver of Inadmissibility

Purpose of a Waiver of Inadmissibility

A waiver of inadmissibility is intended to protect certain U.S. citizens and lawful permanent residents (green card holders) from experiencing extreme hardship as a result of their foreign-national relatives having been denied entry into the United States.

It is important to notice what is not included in that purpose, namely protection of the immigrant from extreme hardship. For all practical purposes, any hardship the immigrant might face if denied the visa or green card does not count toward granting the waiver (unless it loops back into becoming extreme hardship for the U.S. relative, such as if the immigrant were the main wage earner for the family, would cease to make money, and the U.S. relation would suffer extreme hardship as a result).

Moreover, the waiver is not a green light with which all denials can be overcome. Applications for a waiver are specifically allowed only for certain of the grounds of inadmissibility to the United States. (See also 8 U.S.C. § 1182.)

With an approved waiver of inadmissibility, the immigrant can go forward with an application for an immigrant visa or green card.

Who Qualifies to Request a Waiver of Inadmissibility?

Immigrant visa applicants whose ground of inadmissibility allows for requesting a waiver will also need to show that they have a U.S. citizen or lawful permanent resident residing in the U.S. who is also their:

  1. spouse
  2. parent, or
  3. fiancé(e).

The U.S. family member doesn't have to be the petitioner/sponsor, however.

In addition, to succeed with the waiver request, applicants must show that the qualifying relative would experience extreme hardship if the waiver, and thus the visa or green card, were denied. The "extreme hardship" standard is a high one, as discussed below.

Additional requirements might depend on the precise reason a waiver is needed. For example, if the reason for the visa denial is a crime or criminal activity that the applicant was involved in more than 15 years prior to filing the visa application, the U.S. government will want to see evidence of the applicant’s rehabilitation, and will investigate any incidents that have occurred since that time to establish that the applicant is now a law-abiding person of good moral character.

There are some crimes that cannot be waived regardless of when they occurred, however.

How Can I Prove the Extreme Hardship My U.S. Relatives Would Experience?

Meeting the extreme hardship standard is no easy task! You must explain in what way your qualifying relative will suffer if you are denied entry into the U.S., and submit extensive evidence to convince the government that the suffering will truly be extreme.

For example, if you will be claiming that your child has medical troubles that would worsen if he or she was removed from the U.S., you would want to submit copies of medical records and a doctor's letter verifying this. If you will be claiming that the U.S. spouse will be unable to find work in his or her field if the spouse moves to the applicant's home country after the visa denial, you'd want proof of the spouse's job skills and current employment, and evidence of the lack of such employers in the country in question.

Any time families are separated, hardships occur as a result of the separation itself and the financial issues associated with the separation. Those hardships are considered common and therefore, not usually regarded as “extreme.”

What About Hardship to the Immigrant Applicant?

Unfortunately, hardship that the foreign national will experience upon visa denial is not considered in the decision process. And, any negative factors relating to the applicant will be considered and weighed against all favorable hardship factors.

Does that mean, if you are the immigrant applicant, that you should leave out details as to hardship to you? Not exactly, but consider framing it in a way that affects your U.S. relatives. For instance, if you have a medical condition that will not receive adequate treatment in your home country, focus on how that means your U.S. citizen spouse will either be forced to become your caregiver (if abroad) or will have to work double shifts in the U.S. to hire a private caregiver.

What Are the Chances I Will Receive a Waiver?

It is not possible to predict the outcome of your case without an in-depth analysis of the facts surrounding your individual situation. The chances of denial are high, particularly when people do not pay attention to the requirements and provide ample documentation of their claim.

Because of the high level of difficulty in proving extreme hardship, do not attempt to rely solely on this or any of the other articles to guide you. Seek help from an attorney to assist you in determining what constitutes hardship in your situation and to help you gather the proper documentation.

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