Can I Prove Extreme Hardship Using a Combination of Family Members (for Waiver Application)?

Evidence of aggregate hardship to different qualifying family members can be used to request a waiver of unlawful presence.

Question

My wife, who has a green card, has petitioned for me to also receive U.S. lawful permanent residence. At last, my priority date is current and I am working with a lawyer to prepare my green card application.

However, because I entered the U.S. illegally, and have lived here for several years, I will also need to apply for a provisional waiver of my unlawful presence before I leave the U.S. for my visa interview. My lawyer says I need to show that if the waiver and my green card aren’t granted, my wife will suffer extreme hardship—worse than the sadness any other spouse might feel in the same situation.

My wife and I have been talking about this, and although we would both be terribly unhappy if we had to be separated or move back to my home country (where she hasn’t lived for years and would have trouble finding a job), we’re worried that this isn’t “extreme.”

The lawyer also mentioned that hardship to my mother, who is a U.S. citizen, also counts for this waiver. Here again, she’s going to be very sad, and it’s going to be harder for me to take care of her when she is older, but she supports herself and doesn’t even retire until next year.

My question is, can some hardship to my wife plus some hardship to my mother add up to extreme hardship to my family?

Answer

You do indeed have a chance of establishing extreme hardship by demonstrating the combined hardship that would be faced by your various U.S. citizen or lawful permanent resident family members if you were denied admission to the United States.

U.S. immigration law does not require that any one hardship, or even any one person’s hardship, be evaluated in isolation to see whether it rises to the level of “extreme.” (This is true not only for the unlawful presence waiver, but for any other waiver with an extreme hardship standard.) Instead, when the U.S. government considers a waiver request, it must consider any and all relevant hardship factors collectively, or in the aggregate. (See Chapter 4 of the U.S. Citizenship and Immigration Services or USCIS Policy Manual.)

You would do well to consider all the types of hardship that both your wife and your mother would face, both if you were deported alone and if your wife decided to join you in your home country.

It’s possible that the various hardships to your wife alone would be sufficient for the U.S. government to grant the waiver—you mentioned sadness (which is not enough by itself, but it certainly counts) and difficulty finding a job. You might also consider whether she would face a drop in living standards, cultural adjustment, and lower quality medical care (including if you are planning to have children). Your lawyer can help you fully examine this.

In any case, your waiver application can be made even stronger by adding evidence of the hardship that would be faced by your mother—perhaps, for example, she is experiencing anxiety at the thought of having to delay retirement because you won’t be around to help care for her.

For more information, see Proving "Extreme Hardship" to a U.S. Relative for Immigration Purposes.

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