What is Extreme Hardship?

I’m an immigration lawyer based in Boston who specializes in preparing winning I-601 and I-601A waivers. I’m often asked to explain what is meant by “extreme hardship.” Proving that your qualifying relative would suffer extreme hardship is a fundamental requirement for both I-601 and I-601A waivers. So just what exactly constitutes extreme hardship? Surprisingly, you won’t find any useful definition of extreme hardship under U.S. immigration law. But once you begin to grasp the concept of extreme hardship, it will become clear what you need to do to make a persuasive, compelling argument for an I-601 or I-601A hardship waiver.

Extreme hardship is a matter of discretion

One defining characteristic of extreme hardship is that it is a legal standard that is completely discretionary. For I-601 and I-601A immigration waiver cases, an Immigration Judge or USCIS adjudicator makes a personal, subjective decision as to whether he or she thinks that you’ve established extreme hardship, which, again, is an undefined legal term of art. So effectively, “extreme hardship” is whatever the Immigration Judge or USCIS adjudicator thinks it is in his or her wide, discretionary authority. Like beauty, “extreme hardship” is in the eye of the beholder.

Extreme Hardship is determined on a case-by-case basis

The Board of Immigration Appeals has said that extreme hardship depends on the facts and circumstances of each particular case. Establishing extreme hardship and preparing a successful I-601 immigration waiver involves storytelling. To win approval of your waiver, you have to introduce yourself and your family, explain your particular family dynamics and personal circumstances and how the denial of your I-601 waiver would negatively impact your family (especially your qualifying U.S. citizen relative). And since each family is completely different, each I-601A or I-601 immigration waiver will take a unique angle.

Factors for Determining Extreme Hardship

Rather than looking for a precise definition, extreme hardship is better understood as a series of factors. The regulations on suspension of deportation at 8 C.F.R. 1240.58, list the following 14 relevant factors to examine when determining whether extreme hardship would result from a deportation:

  1. The age of the alien, both at the time of entry to the United States and at the time of application for suspension of deportation;
  2. The age, number, and immigration status of the alien's children and their ability to speak the native language and to adjust to life in the country of return;
  3. The health condition of the alien or the alien's children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned;
  4. The alien's ability to obtain employment in the country to which the alien would be returned;
  5. The alien’s length of residence in the United States;
  6. The existence of other family members who are or will be legally residing in the United States;
  7. The financial impact of the alien's departure;
  8. The impact of a disruption of educational opportunities;
  9. The psychological impact of the alien's deportation;
  10. The current political and economic conditions in the country to which the alien would be returned;
  11. Family and other ties to the country to which the alien would be returned;
  12. Contributions to and ties to a community in the United States, including the degree of integration into society;
  13. Immigration history, including authorized residence in the United States; and
  14. The availability of other means of adjusting to permanent resident status.

This list is not exhaustive or in any way intended to cover all of the various forms of hardships that your family would face if your I-601 or I-601A waiver were denied. Rather than using this as a checklist, you should consider this list to be merely a few examples of the type of equities that an Immigration Judge or USCIS adjudicator would weigh in making the extreme hardship determination.

Keep in mind that all factors relevant to extreme hardship must be taken into consideration. Even if no single factor rises to the level of “extreme hardship,” the cumulative effect of all the hardships could meet the standard. This is why it’s essential to bring all factors to the attention of the USCIS adjudicator or Immigration Judge, even if you think that the hardship doesn’t seem to meet the “extreme hardship” standard.

Economic hardship alone is not enough

The denial of an I-601 or I-601A waiver resulting in deportation would create a financial disaster for most waiver applicants and their families. But it is a mistake to focus solely or excessively on the economic hardship. According to the Board of Immigration Appeals, financial difficulties alone may not rise to the level of extreme hardship. But economic hardship in conjunction with other impacts may, in the aggregate, establish extreme hardship.

Focus on extreme hardship to your qualifying relative

By statute, an I-601 or I-601 waiver requires persuasive evidence that your qualifying U.S. citizen or legal permanent resident immediate relative would suffer if the person applying for the waiver were deported. Obviously, the negative impact of any deportation would most directly fall on the beneficiary of the waiver who would be forced to leave the United States. Yet to meet the legal standard, hardship to the beneficiary of the I-601 waiver should not be the sole focus of your documentation.

Don’t forget to include “extreme hardship” to other family members

Under U.S. immigration laws, the “extreme hardship” suffered by the beneficiary of the waiver, his or her friends or family members (other than the qualifying relative) is technically irrelevant. But any evidence of hardship to anyone should be documented. It’s relevant as a matter of discretion and should be brought to the attention of the Immigration Judge or USCIS adjudicator.

Explain any negative equities

The need for an I-601 hardship waiver is caused by a mistake, misdeed, or negative equity such as a criminal conviction, fraud, or immigration violations. The beneficiary of the I-601 or I-601A waiver should address these negative equities by describing what happened and, if necessary, taking responsibility for his or her actions. Don’t sugar coat what you’ve done wrong or try to gloss over it. The Immigration Judge or USCIS adjudicator is making a discretionary decision and evidence of contrition and rehabilitation can play a role in whether or not the waiver is granted.

Examine extreme hardship from two perspectives

It’s important to explore the extreme hardship that would occur in two hypothetical possibilities:

  1. If your I-601 or I-601A waiver were denied and you were deported back to your home country, how would your qualifying relative suffer if he or she remained in the United States without you?
  2. What hardship would your qualifying family member suffer if, after the hypothetical denial of your I-601 waiver, he or she were forced to leave the United States to live with you abroad in the country to which you were deported to?

Single most important tip when it comes to extreme hardship

Never--never!--assume that you and your family’s circumstances would not meet the extreme hardship standard. Many people who are faced with the I-601 or I-601A waiver problem believe that they will be unsuccessful and so they give up before they even begin. Don’t get distracted by fear of losing or deportation.

I-601 waiver lawyer Joshua Goldstein is ready to help

Explaining the unique hardship that you and your particular family would suffer if your I-601 or I-601A waiver were denied is a massive project that is best handled by a skilled immigration lawyer. At the Law Offices of Joshua L. Goldstein, PC, our immigration attorneys have considerable experience preparing successful I-601 immigration waivers for unlawful presence, fraud, and criminal grounds of inadmissibility. We take a creative approach to I-601 waivers. And we stand ready to help you with the time consuming, complex task of preparing a compelling, sympathetic, well-documented waiver application.

Call our Boston immigration law office today at (617) 722-0005 to learn more about how to prove “extreme hardship” and the I-601 waiver process. We welcome difficult immigration cases and we’re ready to help.

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