US visas can be difficult to obtain, especially immigrant visas. In fact, the standards for some types of US visas are so ambiguous and subject to an interpretation that it can be difficult to determine whether or not you qualify. Other types of visas, such as immigrant visas based on I-130 immediate relative petitions, are more straightforward.
It is particularly discouraging to be told that even though you otherwise qualify for a US immigrant visa based on, say, an immediate relative petition, your visa application has been rejected because you are subject to one of the “grounds of inadmissibility” listed in the US immigration law.
Grounds in inadmissibility are external factors, distinct from the qualifications for a visa, that render you ineligible to enter the United States, either on an immigrant visa or a nonimmigrant visa. Even an immediate relative petition on your behalf will not get you into the US if, for example, you have a serious criminal record.
Grounds of Inadmissibility
You can be declared inadmissible to the United States for a number of reasons that are set forth in US immigration law, including (but not limited to):
- a contagious disease such as tuberculosis (HIV is no longer included among the diseases that render you inadmissible to the United States, however);
- some other physical condition that represents a danger to self or others;
- a mental disorder that represents a danger to self or others;
- certain criminal offenses, especially multiple convictions;
- drug abuser or prostitution;
- lack of proper vaccinations;
- serious violations of US immigration laws in the past; particularly a fraudulent immediate relative petition;
- likelihood of becoming economically dependent on public assistance (“public charges”);
- terrorists; and
The Great Loophole: How a Hardship Waiver Works
Some of the foregoing grounds of inadmissibility can be overcome, and some cannot be. If you have a contagious disease, for example, medical treatment might bring a cure. If you are a terrorist, on the other hand, you will never be allowed to enter the United States.
Other people who are permanently inadmissible to the US include (but are not limited to) drug addicts, drug traffickers, people who have committed severe and repeated violations of immigration law.
The situation is complex, however, because certain classes of people are not restricted by the same grounds for inadmissibility that other classes of people are restricted by. They may even be issued immigrant visas and become permanent residents or US citizens, while other classes of people with the same grounds of inadmissibility may not be allowed to enter the US under any visa category.
Between the two extremes of temporary inadmissibility on one hand, and unconditional permanent inadmissibility on the other lies a class of grounds for inadmissibility that may be waived under certain circumstances. This will allow you to enter the United States if you apply for and receive a waiver. In such a case, you might eventually qualify as a US citizen or lawful permanent resident.
Filing Form I-601, Application for Waiver of Grounds of Inadmissibility could allow you to do exactly that, as long as you otherwise qualify for the immigration benefit you are seeking.
It is possible to waive some (but not all) grounds of inadmissibility if you can prove that your inadmissibility would cause “extreme hardship” to a “qualifying relative.”. The I-601 hardship waiver is thought to be granted for the sake of the qualifying relative, not for the beneficiary’s sake because the qualifying relative must be either a US citizen or a lawful permanent resident.
Which types of immigration benefits may qualify for a waiver?
Only people applying for certain types of immigration benefits are eligible to seek a waiver. These immigration benefits include:
- Certain types of immigration visas;
- Adjustment of status to lawful permanent resident petitions (Form I-485);
- K visas;
- V visas;
- Temporary Protected Status; and
- certain other immigration benefits.
Since a Form I-601 hardship waiver is designed to allow you to enter the U.S., you must be located outside the US to apply for such a waiver. An I-601a waiver, however, can be granted to certain classes of people who are located inside the U.S. (see below for further explanation).
Which grounds of inadmissibility can be waived?
Quite a number of grounds of inadmissibility are potentially subject to the Form I-601 waiver, including:
- Certain health-related grounds;
- Certain violations of immigration law;
- 3-year or 10-year entry bar due to unlawful presence in the U.S.;
- Certain people who were previously removed/deported from the U.S.; and
- Certain other classes of people.
- Who counts as a “qualifying relative”?
Who counts as a “qualifying relative”?
Under US immigration law, a “qualifying relative” generally means a spouse or parent who is either a US citizen or lawful permanent resident. In certain cases, a US citizen or lawful permanent resident child counts as a qualifying relative as well. Other relatives do not qualify, even if they are US citizens, and their circumstances will not be considered when you apply for an extreme hardship waiver.
What is “extreme hardship” and how do you prove it?
Unfortunately, there is no precise definition of “extreme hardship.” — the facts of each individual case determine the outcome. Some hardship is normal and expected when relatives are separated by international boundaries, or when one person has to leave the U.S. to reunite with a relative who is not allowed to enter the US. None of this is considered “extreme.”
The degree of hardship that your qualifying US citizen or lawful permanent resident relative would endure if you were not admitted to the United States must exceed the normal and expected amount by a considerable degree in order to support an I-601 waiver. Two types of extreme hardship may be established:
The hardship that your qualifying relative would face if they were forced to live apart from you; and
The hardship that your qualifying relative would face if he/she was forced to relocate abroad in order to live with you.
Circumstances That Might Qualify You for a Waiver
Following are some examples of extreme hardship that have resulted in I-601 waivers in the past. Even if your situation resembles some of the following examples, however, there is no guarantee that your application will be accepted. A lot depends on the discretion of the individual immigration officer as well as the political landscape at the time the application is filed. The most important factor you can control is the persuasiveness of your application.
- Your relative depends on you to provide him/her with medical care;
- Your relative is suffering from a serious medical condition that cannot be adequately treated if he/she joins you in your home country;
- A family member of yours is ill, and your qualifying relative cannot provide care unless you are admitted to the United States;
- Your qualifying relative has been diagnosed with clinical depression due to your inadmissibility and the associated immigration restrictions;
- Your relative has children who he/she will not be able to afford to financially support unless you are admitted to the United States;
- Your relative is financially dependent on you or depends on you to pay debts, and you cannot provide sufficient support from overseas;
- Your home country is at war or is suffering from political instability or chaos;
- Your relative will be mistreated (due to racism, religious discrimination, etc.) in your home country;
- Your relative cannot speak the language of your country;
- Your relative will not be able to secure employment in your home country;
- Your relative will not be able to continue his/her schooling if you are not admitted to the United States or if he/she is forced to relocate to your country;
- Your relative has children from a previous marriage who will not be able to come to your home country to visit him/her due to custody issues;
- Your home country suffers from an unusually high violent crime rate; and
- Other forms of extreme hardship.
Keep in mind that the USCIS will consider the cumulative extreme hardship to your qualifying relative, which means that the more forms of extreme hardship you can list and prove, the better your chances are that the USCIS will consider them, taken together, to be “extreme.”
When it comes to immigration law, the burden of proving that you qualify for an I-601 waiver is on you and your qualifying relative, not the USCIS. The more severe your inadmissibility category, the greater will be your burden of proof will be. If your inadmissibility is based on a year of unlawful presence, for example, you may bear a greater burden of proof than you would if your inadmissibility was based on only six months of unlawful presence.
It is essential that your qualifying relative submit a personal statement that describes in detail all of the hardship that he/she will experience if you are not granted an I-601 waiver. Your waiver application cannot succeed without this critical item of evidence, because it is the centerpiece of the entire application. It is best to have this statement drafted by a skilled and experienced immigration attorney and signed by your qualifying relative.
Other evidence that you might submit includes:
- Your own personal statement, especially one that includes a statement of conditions in your home country if they would cause hardship to your qualifying relative were he/she to relocate there;
- Country reports, preferably issued by the U.S. Department of State, Amnesty International, or some other reputable organization, that detail the conditions in your home country that may be relevant to your claim;
- Letters from doctors or other health care providers concerning the health of you or your qualifying relative, to the extent that your hardship claim is medically related;
- Copies of tax returns and other financial documents that may establish the economic circumstances that are relevant to your hardship claim;
- Copies of your qualifying relative’s educational and professional credentials;
Media reports (news articles, etc.) that report on events in your home country, that may be relevant to your hardship claim;
- Letters from third parties such as therapists, relatives, and close friends, that may serve to confirm the specific elements of your hardship claim.
Try to back up every statement or claim that appears in the hardship waiver application with solid evidence. You may need to organize your evidence into separate exhibits, so that you may refer to them in your application by their exhibit number. The easier you make it for the USCIS to understand your application and your claims, the more likely you are to be successful.
The Heman Legal Group
At the Herman Legal Group, we are no “new kids on the block.” We’ve been practicing immigration law for over a quarter of a century now, longer than some of our clients have been alive. We have helped many clients deal with the USCIS, the National Visa Center, and US embassies and consulates overseas.
Our firm was founded by nationally-known immigration attorney and author Richard Herman.
Richard has published on immigration topics by the Huffington Post, the New York Times, and many other prominent publications.
Frequently Asked Questions (FAQs)
I don’t speak English well. Will I need to hire a translator to communicate with you effectively?
Probably not. Our attorneys and staff are fluent in over a dozen languages, representing more than half the world’s population. Languages we speak (in addition to English) include Mandarin Chinese, Spanish, Russian, Arabic, and several other languages.
How is the Herman Legal Group regarded by clients and peers?
Good enough to be named “Best Law Firm” in the immigration law category by the US News and World Report. Our long track record of success has earned us respect in many quarters.
Couldn’t I save some money by trusting my case to an immigration consultant of a notario instead of a fully qualified immigration lawyer?
Perhaps, but remember — you get what you pay for. “Immigration consultants” and “notarios” are amateurs, not professionals. Many offer services that amount to nothing more than filling out immigration forms for people with limited English language ability. Even if they do possess certain skills, they are likely to miss nuances that could make all the difference in your case. You wouldn’t cut corners with a neurosurgeon — don’t do it with an immigration lawyer either.
Contact Us Today
If you need help filing for a hardship waiver, or if you have other immigration needs, contact us any time from anywhere in the world by calling (+1) (800) 808-4013 or (+1)(614) 300-1131 or by completing our online contact form). Although we serve clients nationwide, if you are in Ohio or Michigan, you could visit one of our offices in Columbus, Cleveland, or Detroit. No matter how you contact us, be aware that we can schedule you a free, confidential initial consultation if you need one.