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 by being inadmissible, you may be eligible to file for a waiver of certain grounds of inadmissibility based on the extreme hardship your qualified relative will experience if you are not admitted to the United States. (This is typically done using USCIS Form I-601 or I-601A.)

According to a policy adopted by U.S. Citizenship and Immigration Services (USCIS), your waiver will be approved if you can provide strong evidence that your relative will experience either:

• extreme hardship either in the U.S. (if you were not allowed to come to or stay in the U.S.), or
• in your home country (if your relative follows you there).

You can, if you wish, prove that your relative would experience extreme hardship in both potential situations. But if only one situation would cause extreme hardship, be prepared to prove that that is the one you and your U.S. relative would choose.

Also keep in mind that the qualifying relative does NOT have to be the same one who petitions for you to immigrate. For example, someone immigrating to the U.S. based on marriage to a U.S. citizen could apply for the waiver based on hardship that her U.S. citizen mother would face.

What Is Extreme Hardship?

Extreme hardship has been defined to mean hardship that is greater than what your relative would experience under normal circumstances if you 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 relative will miss you, because this would be expected under any type of separation.

There is no specific law or regulation defining what constitutes a “normal” versus an “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 Relative Stays in the U.S.

Some of the more common arguments for extreme hardship when a relative remains in the U.S. 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 Relative Joins You Abroad

Some of the more common arguments for extreme hardship when your relative accompanies you to your home country include, but are not limited to:

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

Providing Evidence of Extreme Hardship

The evidence you will need to submit with your waiver application in order to prove your arguments for extreme hardship will start with your qualifying U.S. relative’s personal statement. The qualifying relative must draft a statement outlining all the reasons he or she will suffer extreme hardship if living outside the United States or if you are not in the U.S. with him or her.

You, the foreign-born person, might also want to submit a personal statement to support the arguments made by your qualifying relative and to shed more light on conditions in your home country.

Every argument made in either statement should be supported by additional documentation. This documentation can include, but is not limited to:

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

Extreme Hardship to Children

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.

Seeking Legal Advice

It is always a good idea to consult with an immigration attorney when you prepare an I-601 waiver based on extreme hardship to a qualifying relative. An attorney can assist you 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.