Proving "Extreme Hardship" to a U.S. Relative for Immigration Purposes

If you are attempting to get a visa or green card in the U.S., but are blocked because you match one of the grounds of inadmissibility found in U.S. immigration law (mostly crimes, immigration violations, and health problems), you might be able to overcome this be requesting what's called a "waiver." Your eligibility to apply for one, however, in most cases depends on whether you have a qualified U.S. relative who would experience extreme hardship if you were not admitted to the United States. Such a waiver request is typically done using USCIS Form I-601 or I-601A.

According to U.S. Citizenship and Immigration Services (USCIS) policy, the U.S. government will approve such a waiver if applicants provide strong evidence that their U.S. citizen or lawful permanent resident relative will experience either:

• extreme hardship in the U.S. if the non-citizen were not allowed to come to or stay in the U.S. and be with them, or
• extreme hardship in the home country, if the U.S. relative were to join or follow them there.

You can, if it's fitting, try to show that your U.S. relative would experience extreme hardship in both of these potential situations. But if only one situation would cause your relative extreme hardship (i.e. separation in two different countries would lead to extreme hardship, but having the U.S. relative move abroad wouldn't be so bad), be prepared to prove that that the one situation leading to extreme hardship is also the plan you and your U.S. relative would choose to pursue, and to explain why.

Also keep in mind that the qualifying U.S. relative does NOT have to be the same one who petitioned for you to immigrate, as illustrated in the following example.

EXAMPLE: Sara, who came to the U.S. from Australia on an F-1 student visa, would like to immigrate to the U.S. based on marriage to a U.S. citizen. However, she is inadmissible, having stayed in the U.S. for two years after dropping out of college. Her husband earns a good income in a tech company and can work remotely from anywhere in the world. So it will be hard to argue that the hardship he would suffer will be extreme if he had to move to Australia, or even if Sara couldn't be with him in the United States. Yes, he'd be sad, but so would every spouse separated from a loved one. Sara could, however, potentially apply for the waiver of inadmissibility based on hardship that her U.S. citizen mother would face if Sara were denied the green card; particularly if, for example, her mother has a severe health issue and has been relying on Sara's care and in-person emotional support.

What Does "Extreme Hardship" Mean Under U.S. Immigration Law?

Extreme hardship has been defined by U.S. immigration agencies and the courts to mean hardship that is greater than what the U.S. relative would experience under normal circumstances if the would-be immigrant were not allowed to come to or stay in the United States. There has to be something extra at play. It would be not enough, therefore, to show that your U.S. relative will miss you, because this would be expected under any type of separation.

There is no specific law or regulation defining what constitutes "normal" versus "extreme" hardship, which means that the evidence for each waiver application will be reviewed on a case-by-case basis.

Arguments for Extreme Hardship If U.S. Relative Stays in the United States and Immigrant Is Abroad

Some of the more common arguments for extreme hardship when the U.S. relative continues living the United States but the non-citizen remains abroad (or is deported there) include, but are not limited to:

• The U.S. relative has a medical condition and depends on the foreign-born person for care.
• The U.S. relative is financially dependent on the foreign-born one and it will not be possible to provide adequate support from abroad.
• The U.S. relative has financial debts in the United States and cannot pay them without support from the foreign-born relative.
• The U.S. relative has a sick family member and will be unable to care for that person without support from the foreign-born relative.
• The U.S. relative is the caregiver for children and cannot afford childcare in the absence of the foreign-born relative.
• The U.S. relative is experiencing clinical depression as a result of this immigration situation.

A lawyer can help evaluate your personal situation and come up with other convincing reasons.

Arguments for Extreme Hardship If U.S. Relative Joins You Abroad

Some of the more common arguments for extreme hardship in a situation when a U.S. relative accompanies the immigrant to the home country include, but are not limited to:

• The home country is enmeshed in or on the verge of war and/or political upheaval.
• The U.S. relative has a serious medical condition that cannot be adequately treated in the home country.
• The U.S. relative will be discriminated against in the home country.
• The U.S. relative does not know the language of the home country.
• The U.S. relative is a primary caretaker for a sick family member in the United States.
• The U.S. relative will be unable to secure gainful employment in the home country.
• The U.S. relative's educational progress will come to a halt.
• The U.S. relative has children from a previous relationship who will not be allowed to live or visit the home country due to custody issues.
• The home country has a high rate of violence.
• The U.S. relative has financial debt in the U.S. that cannot be paid from your home country.

Again, you'll want to consider personally unique issues that are not on this list.

Providing Evidence of Extreme Hardship With Your Waiver Application

The evidence you will need to submit with your waiver application should start with your qualifying U.S. relative's personal statement. Your relative should describe all the types of extreme hardship that living outside the United States would cause; or alternatively (or additionally) that living in the U.S. without you would cause.

You, the foreign-born person, might also want to submit a personal statement to support the arguments made by your qualifying U.S. relative and to shed more light on conditions in your home country. But remember, this isn't about hardship to you; it's about how the situation will affect your qualifying U.S. relative.

Every argument made in either of these statements should be supported by documents from independent sources. These might include, but are not limited to:

• Country reports issued by the U.S. Department of State, or other governmental or human rights organizations, outlining the human rights or other difficult conditions of your home country that will lead to extreme hardship to the U.S. relative.
• Letters from medical professionals, as evidence of physical and/or emotional conditions that will lead to extreme hardship to the U.S. relative.
• Copies of tax returns and/or pay statements as evidence of your household income.
• Copies of statements showing any debts that need to be settled in the United States.
• Copies of the qualifying U.S. relative's professional and/or educational credentials.
• News articles reporting on new events in your home country that will lead to extreme hardship to the U.S. relative.
• Letters from relatives, professionals, and/or friends who are in a position to validate certain arguments for extreme hardship.

It's a good idea to reference each piece of evidence in the personal statements as an exhibit. This will help you organize your application, which will make it easier for the USCIS officer to review it.

How Extreme Hardship to Children Factors In

There are some categories of inadmissibility that do not designate a U.S. citizen or permanent resident child as a qualifying relative for the extreme hardship waiver. Many applicants make the mistake of focusing primarily on the children when they do not qualify, resulting in a challenge or denial of their application.

If your child is not a qualifying relative, you can provide evidence of extreme hardship to the child only if it will result in extreme hardship to your qualifying relative. Nevertheless, that can be an important part of your argument. If, for example, adequate medical care for a child with special needs is not available in the home country and the U.S. spouse would have to stop working and give up a rewarding career, this can be styled as extreme hardship to the U.S. spouse.

Seeking Legal Advice

It is always a good idea to consult with an immigration attorney when you prepare a waiver request based on extreme hardship to a qualifying U.S. relative. An attorney can assist in collecting the best evidence to support your arguments. An attorney can also prepare a legal summary to support your case and to serve as a guide for the adjudicating officer.