I-601 Waiver Approval - Extreme Hardship
Tuesday, May 5, 2009
Our office recently received notice of approval of an I-601 waiver application (waiver of excludability under the Immigration and Nationality Act § 212(a)(9)(B)(v) – unlawful presence in the United States).
The applicant waited a period of nine and a half (9½) months for the decision from date of filing with the U.S. Consulate abroad until receiving the decision from U.S. Citizenship and Immigration Services (“USCIS”).
The Section 212(a)(9)(B)(v) waiver requires a showing that the applicant’s U.S. citizen or permanent resident spouse or parent (not children) would suffer “extreme hardship” if the applicant is refused admission to the United States.
The term “extreme hardship” has a special meaning as used in the U.S. immigration laws. It is “not a definable term of fixed and inflexible meaning, and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case.” Matter of Cervantes, 22 I. & N. Dec. 560, 565 (BIA 1999).
The factors deemed relevant in determining extreme hardship to a qualifying relative include, but are not limited to, the following: the presence of lawful permanent resident or United States citizen family ties to this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries; the financial impact of departure from this country; and, finally, significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Matter of Cervantes, 22 I. & N. Dec. 560, 565-566 (BIA 1999).
A showing of extreme hardship requires more than demonstrating the ordinary, typical hardship that a family member would experience if their relative cannot immigrate. Financial hardship alone is not enough. The hardship, which must be experienced by the U.S. citizen/permanent resident relative (not the non-citizen applicant), must go beyond that normally expected in cases of family separation. Successful applicants will usually have demonstrated unique and/or unusual hardships to the U.S. citizen/permanent resident relative, such as: serious health conditions (physical and/or mental); lack of the U.S. citizen/permanent resident’s family ties to the applicant’s country of origin; ability to speak the applicant’s native language; financial considerations; loss of opportunity in applicant’s country of origin, etc.
In our recent approval notice, USCIS cited to the following factors that, considered together, amounted to extreme hardship to the applicant’s U.S. citizen (“USC”) spouse:
· The USC spouse has an aging grandmother as well as a father and stepmother with severe health problems who all depend on the USC to help them on a daily basis.
· The USC spouse has a good job in the U.S. It took the USC spouse a long time, considerable monetary investment, and much effort to secure this position. The USC spouse needs the income from this job in order to manage the substantial school and home mortgage debt accumulated.
· The couple is nearing the latter part of child-bearing years and had been attempting, without success, to have children. They invested a substantial amount of money and time into a fertility program in the U.S. and would lose the benefit of the investment if they are forced to move to Canada.
As part of our I-601 application, our office prepared and submitted a legal brief outlining the applicant’s immigration history and the extreme hardships applicable to the USC spouse. Attached to the brief were several supporting documents, including medical reports (as evidence of the severe health problems of USC relatives), financial documents (evidencing the USC spouse’s financial obligations), employment records of the USC spouse, and other documentary evidence of extreme hardship.Thorough research and strong supporting documentation are always critical in I-601 waiver application cases.
Read more about I-601 waivers and extreme hardship:
Board of Immigration Appeals Decisions Regarding Extreme Hardship: