Extreme Hardship and the 601A Waiver, NYC immigration attorney
Evidence of Extreme Hardship to a Qualifying Relative
In determining what is meant by the term "extreme hardship," it has been interpreted that common results of the bar, such as mere separation or financial difficulties alone are insufficient to warrant approval of an application unless combined with much more extreme impacts. Appellate authorities have been consistent in requiring that extreme hardship be different and more severe than that suffered by the relatives of any individual who is removed from the U.S. or refused admission to the U.S. In other words, "extreme hardship" includes circumstances that are uncommon, unusual, and beyond simply living apart or experiencing financial difficulties. Hardship to the applicant is not considered – only the hardship to the qualifying relative(s) will be considered. Since an applicant's qualifying relative is not required to reside outside of the United States as a result of the denial of the applicant's waiver request, an applicant must establish that the qualifying relative would suffer extreme hardship whether he or she lived in the United States or lived with the applicant in the foreign country of residence.*USCIS considers many factors* to determine if extreme hardship to a qualifying relative has been met. You should address all of the hardship factors that may apply, and submit supporting evidence as applicable:
Submit a statement explaining if the qualifying relative has close family in the U.S. and/or close family in the alien's home country; separation from spouse/children in the U.S. if the qualifying relative moves to the alien's home country; ages of involved parties; length of residence and community ties in the U.S. Evidence should include, but is not limited to, a list of the qualifying relative's family ties outside the U.S. (including the alien's home country) along with their addresses and telephone numbers, copies of identity documents (passports, drivers licenses), etc.
Provide a statement describing the conditions in the country to which the qualifying relative would relocate to be with the alien. Evidence should include, but is not limited to, newspaper articles, country reports, letters from experts, etc. While general country conditions are relevant, it should be established how those conditions could specifically affect the qualifying relative who decides to relocate.
Provide a statement detailing the impact to the qualifying relative(s) due to the alien's absence from the U.S., or the impact to the qualifying relative(s) who relocates to the foreign country to be with the alien, i.e. employment opportunities, loss due to sale of home or business; termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (elderly and inform patients). Evidence should include, but is not limited to, financial reports, bank statements, property deeds, mortgage statements, current wages, employment opportunities in the U.S. and foreign country to which the qualifying relative(s) would relocate, attempts to locate comparable work, etc.
Provide a statement concerning any ongoing or specialized treatment for a physical or mental condition of the qualifying relative(s); availability and quality of such treatment in the alien's country; length of treatment; whether the medical condition is chronic or acute, long-term or short term. Evidence should include, but is not limited to, medical reports, letters from treating physicians or mental health specialists, list of medications, an explanation of the illness, whether the illness is manageable or curable, whether the illness can be treated in the alien's country if the qualifying relative relocates, statements from medical insurances, statements from medical professionals in the alien's home country that treatment is available, etc.
Provide a statement concerning the loss of opportunity for higher education by the qualifying relative; lower quality or limited scope of educational options; disruption of current program; available of special requirements, such as training programs or internships in specific fields. Evidence should include, but is not limited to, newspaper articles, country reports, expert testimony, personal statements from others living in the foreign country, etc. Be specific. It should be established how those concerns could specifically affect the qualifying relative who relocates.
Provide a statement and/or evidence concerning any other situation that the alien feels may establish extreme hardship to the qualifying relative.
Once extreme hardship is established, it is but one favorable factor to be considered in the determination of whether USCIS should exercise discretion. Form I-601 is a discretionary application, which means that even if extreme hardship is demonstrated, USCIS may deny the application as a matter of discretion. As such, the applicant must be persuasive in showing that USCIS should grant the waiver in the exercise of discretion. USCIS will balance positive and negative factors in the record.Positive factors include family ties, length of residence, hardship to the applicant's family, employment history, property or business ties, community service, genuine rehabilitation if a criminal record exists, and other evidence attesting to the applicant's good character. Negative factors include the nature and underlying circumstances of the inadmissibility, the presence of additional violations of US immigration laws, the existence of a criminal record (nature, how recent, and seriousness), and the presence of other evidence indicative of the applicant's bad character or undesirability as a lawful permanent resident of the U.S. Evidence may include, but is not limited to, letters from social/religious organizations as to the applicant's participation in community, volunteer, and charitable events; evidence that the applicant has paid U.S. taxes every year in the U.S.; evidence that no other immigration violations have occurred; evidence of awards or certificates for outstanding work or contributions; evidence of advanced schooling, licenses or certificates; evidence of respect for law and order; evidence or remorse and rehabilitation for violating immigration laws; etc.
Contributed by Svetlana Prizant, an Award Winning New York Immigration Lawyer
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