If an alien is inadmissible to the United States, he or she will be ineligible to receive an immigrant visa from abroad or for adjustment of status to being a lawful permanent resident (LPR) from within the United States. Generally, persons who are within in the United States and have un-waived grounds of inadmissibility will be subject to removal. However, provided that the subject alien has a qualifying U.S. citizen (USC) or LPR immediate family member, the alien may be able to apply for an extreme hardship waiver, depending on the specific inadmissibility ground(s) and the immigration benefit being sought, on the ground that his or her removal would cause “extreme hardship” to the qualifying relative. Note that extreme hardship waivers are discretionary, and factors in any application for an extreme hardship waiver are weighed on a case-by-case basis. Since the statutory language for various extreme hardship waivers does not define what constitutes extreme hardship to a qualifying relative in great detail, we must rely for guidance on past agency decisions, agency regulations and memoranda, and judicial precedent to understand how extreme hardship factors have been weighed in a variety of situations. This article will look at the specific extreme hardship waivers, how they have been applied, and offer guidance for seeking an extreme hardship waiver.
Each of the extreme hardship waivers that we will discuss in this article depends on the applicant demonstrating that his or her removal would cause “extreme hardship” to a qualifying relative who is either a USC or LPR. Qualifying relatives for the extreme hardship waivers are USC or LPR spouses or parents for the extreme hardship waivers found in INA §§ 212(a)(9)(B)(v) and 212(i), and those plus sons and daughters for the extreme hardship waiver found in INA § 212(h)(1)(b).
The leading judicial precedent for interpreting extreme hardship waivers is the Board of Immigration Appeals' (BIA) 1999 decision, Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999). Please see our full length article on Matter of Cervantes to learn about the decision and its lasting influence in much greater detail. Matter of Cervantes concerned an undocumented immigrant in removal proceedings who sought a waiver of inadmissibility under INA § 212(i), arguing that his removal would cause extreme hardship to his a qualifying immediate relative, in this instance his USC wife. While recognizing that every request for an extreme hardship waiver must be evaluated on its own merits, and no set of criteria will apply equally to every extreme hardship case, the BIA's decision in Matter of Cervantes nevertheless listed five factors that adjudicators should generally consider in all extreme hardship cases:
- Presence of qualifying relative's family ties to the United States;
- Qualifying relative's ties outside of the United States;
- Condition(s) in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties to those countries;
- Financial impact of departure on the qualifying family member;
- Significant health conditions of the qualifying relative, especially when tied to the unsuitability of medical care in the country to which the qualifying relative would relocate.1
In ultimately deciding that Cervantes had not demonstrated that his wife would incur extreme hardship upon his removal, the majority also noted that his wife was aware of his adverse immigration situation when she married him, and that this was a negative factor against granting the waiver.
In an opinion from Matter of Cervantes that concurred in part with the opinion of the BIA but dissented in judgment (the majority found that Cervantes did not qualify for an extreme hardship waiver), then Member of the BIA Lory Diana Rosenberg listed several other factors that she felt the majority had neglected in its opinion:
- Qualifying relative's family ties within and without the United States and the impact of separation;
- the economic and general conditions of the country to which the hardship waiver applicant would be returned to, and the effect following would have on the qualifying relative;
- the financial, emotional, cultural and political conditions of the country of return;
- the ability to raise children and other quality of life factors in the country of return;
- the qualifying relative's length of residence in the United States;
- the qualifying relative's age, health, technical skills, employability, and other factors.2
Over time, application of the factors in the dissenting opinion have gained support among immigration adjudicators when adjudicating requests for extreme hardship waivers, along with those factors listed in the majority opinion. While any request for an extreme hardship waiver depends heavily on the circumstances of the applicant and his or her qualifying relative(s), as well as the specific extreme hardship waiver being sought, Matter of Cervantes continues to provide all interested parties with a good explanation of the factors that should and must be considered in evaluating a request for an extreme hardship waiver.
Note that both sets of factors take into account both if the qualifying relative were to remain in the United States after the removal of the applicant and if the qualifying relative were to follow the applicant to the country to which he or she would be removed.
In order to apply for an extreme hardship waiver, an applicant must file a Form I-601, Application for Waiver of Grounds of Inadmissibility.
INA § 212(a)(9)(B)(v) provides for an extreme hardship waiver from inadmissibility stemming from unlawful presence if the applicant demonstrates that being refused admission to the United States would result in extreme hardship to a USC or LPR spouse or parent. Note that unlike some of the other extreme hardship waivers, USC or LPR children of the applicant are not qualifying relatives for the extreme hardship waiver for inadmissibility stemming from the accrual of unlawful presence. However, if the qualifying relative in an extreme hardship application under this provision is a USC or LPR spouse, the condition of the child may be considered in demonstrating that the spouse would suffer extreme hardship if the applicant is not granted admission into the United States.3 Even if the applicant successfully demonstrates that his or her qualifying relative would suffer extreme hardship if the applicant is not granted admission, United States Citizenship and Immigration Services (USCIS) will still weigh all of the potential negative factors in granting the waiver against the positive factors stemming from the successful demonstration of extreme hardship to a qualifying relative.4
Since the 3 and 10 year bars of inadmissibility attach upon departing the United States after having accrued the requisite amounts of unlawful presence, most applicants will be abroad when they seek an extreme hardship waiver. However, the Form I-601 must be sent to the USCIS Lockbox in the United States unless the applicant resides in Cuba, or the applicant resides in a country with a USCIS office and demonstrates to the satisfaction of USCIS that “exceptional and compelling circumstances” necessitate immediate adjudication of the application.5
While the applicant must seek an immigrant visa at a U.S. consulate abroad if he or she would be subject to the 3 and 10 year bars of inadmissibility, there are limited circumstances, such as if the applicant entered the United States under temporary protected status (TPS), or on a U-Visa, or was paroled into the United States, when he or she may file the Form I-601 in conjunction with an application for adjustment of status from within the United Sates.6
If an applicant has already accrued unlawful presence for a 3 or 10 year bar of inadmissibility, there are certain limited circumstances in which the alien may apply for a provisional unlawful presence waiver before departing the United States for an immigrant visa interview at a U.S. consulate abroad. This would allow the alien to have his or her immigrant visa process adjudicated more expeditiously than if he or she had to apply for an extreme hardship waiver from overseas. In order to be eligible, the applicant must be at least 17 years of age, the qualifying relative must be a USC (LPRs are not qualifying relatives for a provisional unlawful presence waiver), and the applicant must not have any other grounds of inadmissibility aside from unlawful presence.7 To learn about provisional unlawful presence waivers in more detail, please read our full article on the subject.
If an alien is inadmissible stemming from a crime involving moral turpitude, multiple criminal convictions, prostitution or commercialized vice, a single conviction for simple possession of 30 grams or less of marijuana, or serious criminal activity in a case in which the alien asserts immunity from prosecution, he or she may apply for an extreme hardship waiver pursuant to INA § 212(h)(1)(B).8 Provided that the activity occurred at least 15 years prior to the application for an immigrant visa or adjustment or admission, the applicant may instead seek a waiver of inadmissibility by demonstrating that he or she has been rehabilitated.9
For purpose of the INA § 212(h)(1)(B) extreme hardship waiver, the applicant must be the spouse, parent, son, or daughter of a USC or LPR and demonstrate that the qualifying relative would incur extreme hardship if the applicant is not admitted. Furthermore, pursuant to INA § 212(h)(2), the alien must not have been convicted of murder, torture, or attempted or entered into a conspiracy to commit murder or torture. Under the same section, the alien is ineligible for a waiver if he or she is an LPR and has been convicted of an aggravated felony since admission as an LPR, or if the alien did not reside continuously in the United States for at least 7 years before the commencement of removal proceedings.
While the same general factors will be considered in evaluating extreme hardship, the discretionary nature of the waiver will come heavily into play in assessing eligibility for a waiver of inadmissibility stemming from the qualifying crimes, since all of the positive and negative factors in granting or not granting the waiver must be weighed.10 Adjudicators will consider factors relating to the crime that triggered inadmissibility in deciding whether or not to grant the waiver, even when the applicant demonstrates that his or her qualifying relative would incur extreme hardship in the event of the applicant's removal. The 10th Circuit has held that an applicant's involvement in a crime, even if charges were ultimately dismissed, may be weighed against the grant of a waiver.11
If the crimes were of a violent or dangerous nature, the applicant must demonstrate that the qualifying relative would incur exceptional and extremely unusual hardship (follow link to section of this article that discusses this standard in more detail).12 9th Circuit held in one case that the heightened standard allows that exceptional and extremely unusual hardship to the applicant, insofar as it contributes to hardship for the qualifying relative, may also be considered.13
The extreme hardship waiver in INA § 212(i) is for grounds of inadmissibility stemming from INA § 212(a)(6)(C)(i), which contains inadmissibility grounds for aliens who, by fraud or misrepresenting a material fact, sought to procure or procured a visa, other documentation, admission into the United Sates, or any other immigration benefit.
In order to satisfy the requirements for the waiver, the applicant must demonstrate that his or her not being admitted would cause extreme hardship to a USC or LPR spouse or parent. While children are not qualifying relatives for the waiver, factors involving a child may be used to help demonstrate extreme hardship to a qualifying spouse.14 Matter of Cervantes is the most broadly applicable precedent for INA § 212(i) waivers.
As with all waivers based on extreme hardship, the decision to grant or deny a waiver application is discretionary, and all factors must be weighed. The applicant's fraud or misrepresentation may be used as an adverse factor against granting an extreme hardship waiver even when the applicant demonstrates that his or her qualifying relative would incur extreme hardship upon the applicant's removal.15
In order to obtain regular non-LPR cancellation of removal, an applicant must, pursuant to INA § 240A(b)(1)(D), demonstrate that a USC or LPR spouse, parent, or child would suffer “exceptional and extremely unusual hardship” in the event that the applicant is removed. Although hardship to the applicant will generally not be considered, it may be considered to such an extent that it contributes to hardship for the qualifying relative(s).16 In order for a son or daughter of the applicant to be a qualifying relative, he or she must be under the age of 21 at the time that an immigration judge begins adjudicating the application for cancellation of removal.17
While the factors that may contribute to demonstrating “exceptional and extremely unusual hardship” are the same as those for extreme hardship, immigration adjudicators have held that there is a higher bar than there is for extreme hardship. However, the BIA has held that, while the standard is higher for exceptional and extremely unusual hardship, the hardship does not need to be “unconscionable” to satisfy the requirement.18 The BIA has held that factors that may contribute to the finding of exceptional and extremely unusual hardship include if the applicant has elderly parents who rely solely on him or her support, if the applicant has a qualifying child with very serious health issues or special needs at school, or if the applicant's qualifying relative(s) would, in addition to other factors to meet the “exceptional and extremely unusual” standard, face a lower standing of living or adverse conditions in the country of return.19 In Matter of Recinas, 23 I&N Dec. at 470, the BIA granted an exceptional and extremely unusual hardship claim while citing the following factors:
- Applicant's children had been raised in the United States, some were U.S. citizens, and they would be unable to adjust to the country of return on account of only knowing life in the United States and not speaking the native language of the country of return;
- Children were completely dependent on applicant for support;
- Applicant's mother, a USC, helped care for the children and would not relocate in the event of removal;
- Applicant would likely be unable to gain lawful status in the event of removal.20
While demonstrating exceptional and extremely unusual hardship is substantially more difficult than demonstrating extreme hardship, the BIA has interpreted the standard in such a manner that it is not completely impossible to do so. However, mere severe difficulties to qualifying relatives in the event of the applicant's removal will not be sufficient to meet the standard.
Regardless of the hardship standard, demonstrating hardship for a waiver, or especially for cancellation of removal, is a very complicated process. Before even considering an extreme hardship waiver, an alien should consult with an experienced immigration attorney. Depending on the inadmissibility ground and other factors, an experienced immigration attorney may find that the applicant may be eligible for a different waiver than an extreme hardship waiver. In the event that an immigration attorney decides that applying for an extreme hardship waiver is the best course of action, the alien and his or her qualifying relative(s) should be cooperative with the immigration attorney so that the immigration attorney has all information necessary to compile the most compelling case for a waiver based on the circumstances of the applicant's qualifying relative(s) and the immigration attorney's knowledge of precedents and policies relating to findings of extreme hardship. It is important to remember that since the grant of the waiver must be weighed against adverse factors, immigration adjudicators may find that adverse factors stemming from the inadmissibility ground or otherwise may ultimately way against granting an extreme hardship waiver even if the applicant demonstrates that his or her qualifying relative would suffer extreme hardship upon the applicant's removal.
Paraphrasing the list from Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999) [The majority cited: “Jong Ha Wang v. INS, 450 U.S. 139 (1981); Gutierrez-Centeno v. INS, 99 F.3d 1529 (9th Cir. 1996); Shooshtary v. INS, 39 F.3d 1049 (9th Cir. 1994); Palmer v. INS, 4 F.3d 482 (7th Cir. 1993); Cerrillo-Perez v. INS, 809 F.2d 1419 (9th Cir. 1987); Ramirez-Durazo v. INS, 794 F.2d 491 (9th Cir. 1986); Sanchez v. INS, 755 F.2d 1158 (5th Cir. 1985); Contreras-Buenfil v. INS, 712 F.2d 401 (9th Cir. 1983);Ramirez-Gonzalez v. INS, 695 F.2d 1208 (9th Cir. 1983); see also Matter of Pilch, 21 I&N Dec. 627 (BIA 1996); Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996); Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996); Matter of Ige, 20 I&N Dec. 880 (BIA 1994); Matter of Anderson, 16 I&N Dec. 596 (BIA 1978)”].
Paraphrasing the list from Judge Rosenberg's opinion in Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999) [Judge Rosenberg cited: “Mejia-Carrillo v. United States, 656 F.2d 520 (9th Cir. 1981) (relating to consideration of noneconomic hardships resulting from removal); Ravancho v. INS, 658 F.2d 169 (3d Cir. 1981) (relating to consideration of psychiatric information); see also Tukhowinich v. INS, 57 F.3d 869 (9th Cir. 1995) (relating to consideration of respondent's role as sole provider for her undocumented family here and abroad); Watkins v. INS, 63 F.3d 844 (9th Cir. 1995) (relating to consideration cumulatively of spouse's hardship, fear of persecution, child's inability to master a foreign language, and psychological factors); Salameda v. INS, 70 F.3d 447 (7th Cir. 1995) (relating to need to consider separation from community ties);Cerillo-Perez v. INS, 809 F.2d 1419 (9th Cir. 1987) (relating to consideration of hardship to other than qualifying family members)”]
. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014)123, citing, Matter of ___ (AAO Ciudad Juarez Oct. 30, 2009), 15 Bender's Immigr. Bull. 1141, 1163 (Aug 15, 2010) [son's condition was a substantial factor in demonstrating extreme hardship to qualifying relative spouse]
Kurzban 124, citing, Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996), and Matter of Marin, 16 I&N Dec. 581 (BIA 1978)
Kurzban 124, citing Policy Memo, USCIS, Exceptions for Permitting the Filing of Form I-601 and Any Associated Form I-212, PM-602-0062.1 (Nov. 30, 2012), published on AILA InfoNet at Doc. No. 12120568.
INA § 245(i)
Kurzban 124, citing 8 C.F.R. § 212.7(e)(3)
J. Ferguson, AILA's Focus on Waivers Under the Immigration & Nationality Act (AILA 2008) 119, citing INA § 212(a)(2)(A)(i)(1), INA § 212(a)(2)(A)(i)(II), INA § 212(a)(2)(B), (D), and (E)
Kurzban 166, citing INA § 212(h)(1)(A); Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992)
Kurzban 166, citing, Matter of Mendez-Morales (BIA 1996); Reyes-Cornejo v. Holder, 734 F.3d 636, 645-49 (7th Cir. 2013).
Kurzban 167, citing, Schroeck v. Gonzalez, 429 F.3d 947 (10th Cir. 2005)
Kurzban 167, citing 8 C.F.R. § 212.7(d), 8 C.F.R. §1212.7(d)
Kurzban 167, citing, Rivera-Peraza v. Holder, 684 F.3d 906 (9th Cir. 2012)
Kurzban 172, citing, Matter of ___ (AA) New York Aug. 16, 2013) at 5, published on AILA InfoNet at Doc. No. 13090348, Matter of ___ (AAO Portland, Oregon Oct. 7, 2010), published on AILA InfoNet at Doc. No. 11010333
Kurzban 173, citing, Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 569 (BIA 1999), aff'd, Cervantes-Gonzalez v. INS, 244 F.3d 1001 (9th Cir. 2001).
Kurzban 1367, citing, Matter of Recinas, 23 I&N Dec. 467, 471 (BIA 2002)
Kurzban 1367, citing, Matter of Isidro, 25 I&N Dec. 829, 832-833 (BIA 2012)
Ferguson 168, citing, Matter of Monreal, 23 I&N Dec. 56 (BIA 2001)
Ferguson, Julie C. AILA's Focus on Waivers Under the Immigration & Nationality Act. Washington D.C. AILA Publications, 2008. 119, 168, 171, Print. ALIA's Focus Series
Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 123-24, 166-68, 171-73, Print. Treatises & Primers.