At the heart of any I-601 or I-601A unlawful presence waiver is the issue of extreme hardship to the qualifying relative of the alien applicant. In order to win approval for an I-601 extreme hardship waiver or I-601A waiver, the attorney must show that it would cause the qualifying relative extreme hardship if the alien is not permitted to live in the United States.
Extreme hardship is a vague term, and the adjudicating officer is given broad discretion on how to interpret extreme hardship. Generally, extreme hardship is defined as greater than the normal hardship the qualifying relative can be expected to experience if the Alien is denied admission. The I-601 or I-601A should always cover two hypothetical scenarios when attempting to satisfy this issue: 1) would the qualifying relative experience extreme hardship if the relative stays in the United States and the alien lives in his/her home country? 2) Would the qualifying relative experience extreme hardship if s/he moves with alien to the home country?
There are many strategies and potential arguments to consider when trying to prove extreme hardship. Each case will involve different facts, but it’s important to consider all possible angles. Here is a sampling of some of the arguments that USCIS or the Department of State might consider persuasive. This list is not exhaustive.
- Qualifying relative (“QR”) has a serious medical condition that makes relocation to the foreign country impossible. This is a very strong argument, and if accompanied by other arguments and presented in a persuasive manner, should result in an approval. We’ve had several waiver cases approved involving a QR with a serious medical condition.
- Child of QR has a serious medical condition which causes extreme hardship to QR if alien is forced to live outside the US. Although the child’s hardship from the medical condition is not directly considered for the I-601 or I-601A waiver, hardship to the child of the QR will always cause hardship to the parent. For example, one of our client’s children was autistic, so we explained that if the alien wife was forced to live abroad, the child would either move to the foreign country and receive inadequate support services or the child would stay in the US and the US citizen husband would not be able to provide adequate supervision because he worked two jobs.
- Qualifying relative takes care of an elderly relative with a serious medical condition. Be sure to document the medical condition and show proof that the QR provides care. Also, explain why other relatives (siblings, etc.) cannot provide care if QR were to move abroad. In one of our cases, we showed that the mother of the QR was very old and had several medical problems. The QR and his alien wife lived a couple blocks away and would care for the mother every day. While the QR went to work, the alien wife would stay with the mother, massaging her feet, preparing food and keeping her company. We provided photos and medical records for the mother.
- Alien’s home country is at war, is politically unstable, or has serious violence. Use country condition reports and US government sources to prove this. Avoid news articles if possible. This is always a worthwhile argument if the alien is from Mexico.
- QR is the primary caregiver for children from a prior relationship. Be prepared to show custody documents or other proof of primary caregiver.
- QR must help support family members financially. For example, one of our clients helped his parents pay their mortgage because they were older and could not work. In another case, our client was putting two college-aged kids through school, and he could not move abroad because the kids would need to drop out of school.
- QR helps support children from a prior relationship but is not the primary caregiver. This argument will receive less attention, but it is still important to point out. Include proof of child support payments and try to get a written statement from the children or other parent of the children attesting to the QR’s involvement in the kids’ lives. In one case, the mother of the QR’s children provided a written statement attesting to the alien’s good relationship with the children and saying that the QR was a good father and provider.
- QR has suffered depression, anxiety or other psychological problems as a result to Alien’s uncertain immigration status. A psych evaluation from a qualified professional is necessary here.
- QR and Alien have children together. There are many rumors that if a couple has kids together, the I-601 or I-601A will be granted. While having children together makes the case stronger, it does not, in and of itself, guarantee approval. Likewise, not having children involved does not guarantee denial.
- The Alien entered the US at a young age through no decision of his/her own. Although this should not have a direct bearing on extreme hardship to the QR, some officers regard this as a relevant consideration. It might be possible to argue that the alien would be just as ill-prepared to live in the foreign country as the QR therefore making the stress of living separately or trying to live abroad for ten years more daunting.
- QR could not find employment in the foreign country. One of our clients was a floor restoration specialist and had his own business. If he moved to the foreign country he would not be able to practice his trade. He wouldn’t know the language and the houses were built differently in that country. His skills would be useless if he moved abroad.
- QR would be a target for violence in the foreign country. In another case, we explained that the QR would stick out in the foreign country because of his race. We included country condition reports that discussed various incidents of individuals like our client being targeted for violence, kidnapping, and robbery. We also included news articles.
- Alien would be a target for violence in the foreign country. In the home country of one of our clients rape was prevalent, and our alien client was previously attacked while she lived there. We included her written testimony, country condition reports and news articles. We explained that the QR would be constantly worried that he could not protect her while he was living in the US and she lived abroad.
- QR and alien (assuming marriage) are without children, but they are trying to start a family and being separated for years to come will make a family impossible. If appropriate provide documentation to show trouble getting pregnant. For example, with one couple that did not have kids, we provided evidence of a prior miscarriage. We argued that the wife was in her early thirties and had already suffered a miscarriage. She was getting older and the couple would either need to move to Mexico and have the child there, or give up on having a family if the wife was forced to live in Mexico for the next ten years.
Keep in mind that officers are given broad discretion on which cases to approve, and the attorney filing the waiver packet has no control over which officer adjudicates the case. Each adjudicator may have their own preferences and guidelines, and the case law supports this by acknowledging that each case is unique. For this reason it’s important to have an immigration attorney experienced with I-601 and I-601A waivers help prepare the case. A good attorney will have prepared many waiver packets and will know which cases have been approved and which have not.
To schedule a consultation with The Nunez Firm, contact us. Managing attorney Jay Nunez will personally meet with you to help you better understand the I-601 and I-601A process and whether your case is viable and worth pursuing.