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Extreme hardship is a matter of discretion

One defining characteristic of extreme hardship is that it is a legal standard that is completely discretionary. For I-601 and I-601A immigration waiver cases, an Immigration Judge or USCIS adjudicator makes a personal, subjective decision as to whether he or she thinks that you’ve established extreme hardship to your relative with U.S. citizenship or lawful permanent resident status.

Extreme Hardship is determined on a case-by-case basis

The Board of Immigration Appeals has said that extreme hardship depends on the facts and circumstances of each particular case. Establishing extreme hardship and preparing a successful I-601 immigration waiver involves storytelling. To win approval of your waiver, you have to introduce yourself and your family, explain your particular family dynamics and personal circumstances and how the denial of your I-601 waiver would negatively impact your family (especially your qualifying U.S. citizen relative). And since each family is completely different, each I-601A or I-601 immigration waiver will take a unique angle.

Factors for Determining Extreme Hardship

Rather than looking for a precise definition, extreme hardship is better understood as a series of factors. The regulations on suspension of deportation at 8 C.F.R. 1240.58, list the following 14 relevant factors to examine when determining whether extreme hardship would result from a deportation:

  1. The age of the alien, both at the time of entry to the United States and at the time of application for suspension of deportation;

  2. The age, number, and immigration status of the alien’s children and their ability to speak the native language and to adjust to life in the country of return;

  3. The health condition of the alien or the alien’s children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned;

  4. The alien’s ability to obtain employment in the country to which the alien would be returned;

  5. The alien’s length of residence in the United States;

  6. The existence of other family members who are or will be legally residing in the United States;

  7. The financial impact of the alien’s departure;

  8. The impact of a disruption of educational opportunities;

  9. The psychological impact of the alien’s deportation;

  10. The current political and economic conditions in the country to which the alien would be returned;

  11. Family and other ties to the country to which the alien would be returned;

  12. Contributions to and ties to a community in the United States, including the degree of integration into society;

  13. Immigration history, including authorized residence in the United States; and

  14. The availability of other means of adjusting to permanent resident status.

This list is not exhaustive or in any way intended to cover all of the various forms of hardships that your family would face if your I-601 or I-601A waiver were denied. Rather than using this as a checklist, you should consider this list to be merely a few examples of the type of equities that an Immigration Judge or USCIS adjudicator would weigh in making the extreme hardship determination.

Keep in mind that all factors relevant to extreme hardship must be taken into consideration. Even if no single factor rises to the level of “extreme hardship,” the cumulative effect of all the hardships could meet the standard. This is why it’s essential to bring all factors to the attention of the USCIS adjudicator or Immigration Judge, even if you think that the hardship doesn’t seem to meet the “extreme hardship” standard.

Don’t forget to include “extreme hardship” to other family members

Under U.S. immigration laws, the “extreme hardship” suffered by the beneficiary of the waiver, his or her friends or family members (other than the qualifying relative) is technically irrelevant. But any evidence of hardship to anyone should be documented. It’s relevant as a matter of discretion and should be brought to the attention of the Immigration Judge or USCIS adjudicator.

Explain any negative equities

The need for an I-601 hardship waiver is caused by a mistake, misdeed, or negative equity such as a criminal conviction, fraud, or immigration violations. The beneficiary of the I-601 or I-601A waiver should address these negative equities by describing what happened and, if necessary, taking responsibility for his or her actions. Don’t sugar coat what you’ve done wrong or try to gloss over it. The Immigration Judge or USCIS adjudicator is making a discretionary decision and evidence of contrition and rehabilitation can play a role in whether or not the waiver is granted.

Single most important tip when it comes to extreme hardship

Never assume that you and your family’s circumstances would not meet the extreme hardship standard. Every single day, we meet people who tell us everything is great with them, no medical issues or obvious hardships, and we are still able to get the waivers approved by digging in more into the person’s history and being creative with the types of evidence and arguments we submit.

Many people who are faced with the I-601 or I-601A waiver problem believe that they will be unsuccessful and so they give up before they even begin.

Explaining the unique hardship that you and your particular family would suffer if your I-601 or I-601A waiver were denied is a massive project that is best handled by a skilled immigration lawyer. At Mundo Legal, our immigration attorneys have considerable experience preparing successful I-601 immigration waivers for unlawful presence, fraud, and criminal grounds of inadmissibility.

We take a creative approach to I-601 waivers. And we stand ready to help you with the time consuming, complex task of preparing a compelling, sympathetic, well-documented waiver application.

To learn more about how to prove “extreme hardship” and the I-601 waiver process, please contact us for your free phone consultation: (909) 845-1183. We welcome difficult immigration cases and we’re ready to help.

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This website and blog constitute attorney advertising. Do not consider anything in this website or blog legal advice and nothing in this website constitutes an attorney-client relationship being formed. Set up a consultation with us before acting on anything you read here. Past results are no guarantee of future results and prior results do not imply or predict future results. Each case is different and must be judged on its own merits.



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