Proving Extreme Hardship for an I-601 or I-601A Waiver of Inadmissibility Application

Certain people can be barred from re-entering the US for various reasons – overstaying their visa for at least six months, multiple criminal convictions, etc. If such a bar is placed on you, you are in a difficult situation – if you are outside the US you will find yourself unable to return, while if you are inside the US you will find yourself unable to leave without facing a bar on re-entering the US, even if you are issued an immigration visa at a US embassy overseas.

The I-601 and I-601A waivers are designed to waive some of the grounds of inadmissibility. Neither one will waive all possible grounds of inadmissibility – some grounds simply cannot be waived under any circumstances, except perhaps special permission from the US Secretary of State (even Nelson Mandela required special permission to enter the US, for example).

Proving extreme hardship can be – well, extremely hard. Not impossible, mind you, but difficult enough to require you to exercise great care when putting together your application. Two important principles to observe are (i) err on the side of providing too much information rather than not enough, and (ii) provide as much supporting documentation as you can get your hands on. Your story must be compelling and well-documented.

The legal requirements for proving extreme hardship are:

• You must have a “qualifying relative” who is a U.S. citizen or permanent resident.
• The USCIS considers extreme hardship to your qualifying relative, not to you. Your own hardship is relevant only to the extent that it also causes extreme hardship to your qualifying relative. One of the most common mistakes on an I-601 or I-601A application is to talk about the extreme hardship that exclusion from the US would cause you, rather than your qualifying relative.
• Your qualifying relative does not have to be the person who sponsored you for immigration. If your spouse sponsored you and your mother is terminally ill, you might use your mother as your qualifying relative.
• Exclusion from the US will inevitably cause a certain amount of hardship due to family separation, etc. This degree of hardship is not enough to support your application. For your hardship to be considered “extreme”, it must go beyond the ordinary hardship ordinarily suffered by people who are excluded from the US.

Following are some examples of extreme hardship cases might qualify:

• You have several children who do not speak the native language of your home country and would have to be educated in a foreign language;
• You and your qualifying relative spouse are members of a minority ethnic group that suffers persecution in your home country;
• The country to which you would be deported is experiencing political upheaval or catastrophic economic conditions (Syria or Venezuela, for example);
• You are your family’s sole breadwinner, but you would be unlikely to locate employment in your home country;
• Your aging US citizen mother is too ill to relocate and you are her primary caretaker; and
• Many other similar hardships.

When in doubt, document everything, preferably with original documents, certified copies or affidavits. Do everything you can to make your application as persuasive as possible. Extreme hardship is an inherently subjective standard, and no matter how persuasive your application, it could still be rejected. The determination is based on the “totality of the circumstances” of your particular case, and the examining officer is vested with a high degree of discretion.