The Meaning of “Extreme Hardship” for Waiver Purposes

hardshipA person found ineligible for a visa may nonetheless qualify one of the various “waivers” allowing visa issuance. Often, issuance of a waiver requires that the applicant prove a qualifying relative will experience “extreme hardship” if the waiver is not granted.

Depending on the type of waiver, the qualifying relative whose extreme hardship is to be proven must be a U.S. citizen or lawful permanent resident spouse, parent, or child. Some waiver types are more restrictive regarding the type of relative or immigration status.

Note that hardship to a non-qualifying relative is not irrelevant. It is relevant to the extent that it creates hardship to the qualifying relative. For example, the lack of health care in the foreign country to treat a child’s specific medical condition will result in greater stress and suffering to the qualifying relative parent if the family elects to move there.

The term “extreme hardship” is not “fixed and inflexible.” Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999); Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). But it does mean real actual or prospective injury to the qualifying relative. Since the hardship must be “extreme,” it is by definition insufficient for the hardship to be the “normal” difficulties that a permanent resident or citizen would experience if a relative is denied a waiver. Matter of Ngai, 19 I & N Dec. 245 (BIA 1984).

In considering whether extreme hardship would befall a qualifying relative if the waiver is denied, the government will consider two possibilities: What if the relative remains in the U.S. without the applicant? And what if the relative resides in the foreign country with the applicant. Matter of Ige, 20 I&N Dec. 880, 885 (BIA 1994).

Key factors relevant to extreme hardship are listed below. See Matter of Anderson, 16 I&N Dec. 596 (BIA 1978).

1. Age both at the time of entry and at the time of relief
2. Length of residence in the United States
3. Family ties (and separation from family members) in the United States and abroad, especially in single parent situations
4. Health-related issues, especially if medical care is unavailable
5. Financial situation, such as a major decline in standard of living due to future unemployability, inability to practice a profession, or potential loss due to sale of business
6. Possibility of other means of immigrating
7. Immigration history
8. Position in the community, such as contributions to the community and acculturation and integration into U.S. society
9. Economic and political conditions in the home country.

Additional hardship factors may include:

1. Inability to raise children if family members are not available to help
2. Quality of life factors in the home country
3. Educational opportunities for children who do not speak, read, write the country’s language
4. Violence, damage from civil war and disasters in home country
5. Psychological impact including depression, trauma
6. Political persecution
7. Severe personal consequences and non-economic hardship flowing from economic ones.

These factors are not exclusive. Also, the hardship flowing from these factors is considered cumulatively; in other words, the total hardship to the qualifying relative should be considered. In cases where the hardship stemming from individual factors is not extreme, the total hardship stemming from multiple factors may be extreme. Matter of Ige, 20 I&N Dec. 880 (BIA 1994).

Hardship must be proven by documentary evidence. Merely alleging hardship without proving it will not be sufficient.

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