Extreme hardship is an idea that comes up in immigration law time and time again and is one of the underlying requirements for a successful Waiver case. But did you know that there is no clear definition of what it is?
Extreme hardship is fluid, subject to interpretation, and it is different for everyone. These are the major factors as to why creating a winning waiver application is so difficult.
Immigration recognizes that anytime a foreign national cannot stay in the United States, his or her family will suffer. Children will lose a parent, a spouse is thousands of miles away, and household income will be slashed. For immigration purposes, this is just “regular” hardship, not “extreme.”
In my opinion, though, these hardships are extreme. Can you imagine losing such an important part of your life? When determining extreme hardship, though, immigration wants to know what makes that family’s life more difficult than the so-called regular hardship that any family in the same situation would face.
I look at extreme hardship as a brick wall. A brick wall isn’t just one brick, but the more bricks you have, the stronger and better your wall is. Extreme hardship is similar. Most families don’t have one fact that would make hardship extreme, but they have a series of smaller facts that, when put together, demonstrate extreme hardship.
When building a case, we look at a variety of issues within the family: family ties, medical conditions, safety concerns, and economics. We also evaluate the hardship from two perspectives. First, we assume the foreign national leaves and the family stays in the United States. Secondly, we hypothesize what would happen if the entire family relocates to the other country. In the second scenario, other factors like language, school, employment, and safety become new bricks in our wall.
Another complicating factor is that extreme hardship is used as part of a balancing test. Often, a person has to show extreme hardship because of a problem in the past – for example, entering the U.S. illegally, committing a crime, or committing fraud. What this means is that the worse the underlying problem is, the higher the standard for extreme hardship becomes.
We see this a lot of with I-601A Provisional Waivers that are required for a variety of offenses. Entering the U.S. without permission, for example, is not as bad in the scheme of things as some other actions that require waivers. For this reason, the extreme hardship required may not be as “extreme” as for someone seeking a waiver for multiple criminal convictions and for using fake immigration documents.
Extreme hardship is different for everyone, yet it is integral to a successful waiver case. There’s no checklist or magic equation for demonstrating what will lead to an approval. Waiver work is hard, time-consuming and expensive, but it is money well invested if it means your family can stay together in the United States.