What Does “Extreme Hardship” Mean in a Waiver?
A immigrant spouse who has accumulated unlawful presence in the United States may trigger a three- or ten-year bar after leaving the country. In some cases, a waiver may be available if refusing admission would cause extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse or parent. Similarly, the spouse may need a hardship waiver for lying on an immigration form or to a CBP officer to gain admission into the U.S. and is facing a lifetime misrepresentation bar if a hardship waiver is not approved. Maybe the spouse committed a minor crime that is now blocking their green card and is in need of a hardship waiver.
Extreme hardship is not established by one fact or a standard checklist. USCIS looks at the circumstances together. Health, finances, family responsibilities, career disruption, country conditions, caregiving obligations, separation, relocation, and other facts may become important depending on the individual case.
The stronger question is not simply “Do I have hardship?” It is which hardships matter under the law, how they affect the qualifying relative, and how the evidence explains the cumulative impact of separation or relocation.
In each case, to win, it must be determined that a combination of hardships takes the case beyond those hardships ordinarily associated with deportation, e.g., economic detriment due to loss of a job or efforts ordinarily required in relocating or adjusting to life in the native country. An analysis of hardship to U.S. citizen or LPR spouses and/or USC or LPR parents must be careful and individualized
Relevant factors can include:
- age of the subject
- family ties in the United States and abroad;
- length of residence in the United States;
- conditions of health;
- conditions in the country to which the alien is returnable/qualifying relative would relocate, such as economic and political;
- financial status – business and occupation;
- the possibility of other means of adjustment of status for alien;
- whether of special assistance to the United States or community;
- alien’s immigration history;
- alien’s and qualifying relative’s position in the community;
- foreign languages spoken by alien and qualifying spouse or parent
ability of the USC or LPR spouse or parent to relocate to be with the alien (employment opportunities, relocation adjustment, foreign language(s) spoken; financial hardship in relocating); - financial hardship if stays in US without alien
the existence of qualifying spouse or parent’s property or business ties in the U.S.
Some facts may make an extreme-hardship case more difficult to prove. Recently acquired equities may be given less weight. USCIS may also look more critically at a case where the qualifying relative appears financially secure, highly employable, fluent in the language of the country of relocation, or otherwise better positioned to relocate or withstand separation. None of those facts is automatically fatal, but they can affect how the hardship must be analyzed and documented.
Read more about the 3 and 10 year bars for unlawful presence.
Read more about the misrepresentation bar.
About Attorney Heather L. Poole
Heather L. Poole represents clients in complex family-based immigration and waiver matters, including cases involving unlawful presence and extreme hardship. She focuses on understanding the full immigration history, identifying issues that may not be obvious at first, and developing a strategy and evidence record tailored to the individual case.
