“Extreme Hardship” Waivers Following an Immigrant Visa Denial

Under certain circumstances when a visa is denied, the applicant may be able to overcome the denial by requesting what is often referred to as an “extreme hardship waiver.” The extreme hardship standard applies to immigrant visas used to live permanently in the U.S. — for example, after having been petitioned by a U.S.-based family member or employer. The most important thing to realize, however, as we’ll discuss below, is that claiming extreme hardship to the immigrant after a denial gets you nowhere — the only available waivers involve proving extreme hardship to a U.S. family member, not the immigrant.

What Is an Extreme Hardship Waiver?

An extreme hardship waiver means that you’ve asked the U.S. government to approve your visa application despite you having been determined inadmissible to the U.S. and therefore ineligible for a visa, and it has agreed to do so.

You would most likely request this waiver by preparing Form I-601, Application for Waiver of Grounds of Inadmissibility, with accompanying documents backing up your request. You would file this with either the U.S. embassy or consulate processing your visa application abroad, or with U.S. Citizenship and Immigration Services (USCIS) if you are already residing in the United States and eligible to have your application for a green card processed there (in other words, you are “adjusting status”).

Note: If you are currently abroad, but you have an I-485 pending with USCIS (for adjustment of status) or you are filing Form I-360 or for a T nonimmigrant visa, you would also file your waiver request with USCIS.

Or, if you are the immediate relative of a U.S. citizen applying for a waiver of the unlawful presence ground of inadmissibility, you apply using USCIS Form I-601A, and send it to USCIS before departing to your home country for your consular interview for an immigrant visa. For details on who might choose this stateside procedure and why it’s beneficial, see “Staying in the U.S. With The I-601A Provisional Waiver of Inadmissibility

The Purpose of the Waiver of Inadmissibility

The waiver of inadmissibility is intended to protect certain U.S. citizens and lawful permanent residents (green card holders) from experiencing extreme hardship as a result of their foreign-national relations having been denied entry into the United States. It is important to notice what is not included in that purpose, namely protection of the immigrant from extreme hardship. For all practical purposes, any hardship the immigrant might face if denied the visa or green card does not count toward granting the waiver (unless it loops back into becoming extreme hardship for the U.S. relative — such as if the immigrant were the main wage earner for the family, would cease to make money, and the U.S. relation would suffer extreme hardship as a result).

Who Qualifies to Request a Waiver?

A visa applicant can request the waiver if a U.S. citizen or lawful permanent resident residing in the U.S. is also the applicant’s:

  1. spouse
  2. parent, or
  3. fiancé(e).

In addition, to succeed with the waiver request, the applicant must show that the qualifying relative would experience extreme hardship if the waiver, and thus the visa or green card, were denied. The “extreme hardship” standard is a high one, as discussed below.

This waiver is also, however, available if the reason for the visa denial was because of a crime or criminal activity that occurred more than 15 years prior to filing the visa application. In that case, the government will consider the applicant’s rehabilitation, and will investigate any incidents that have occurred since that time to establish that the applicant is now a law-abiding person of good moral character. However, there are some crimes cannot be waived regardless of when they occurred.

How Can I Prove Extreme Hardship?

Meeting the extreme hardship standard is no easy task! You must explain in what way your qualifying relative will suffer if you are denied entry into the U.S., and submit extensive evidence to convince the government that the suffering will truly be extreme. For example, if you will be claiming that your child has medical troubles that would worsen if he or she was removed from the U.S., you would want to submit copies of medical records and a doctor’s letter verifying this.

Any time families are separated, hardships occur as a result of the separation itself and the financial issues associated with the separation. Those hardships are considered common and therefore, not usually regarded as “extreme.”

What About Hardship to the Applicant?

Unfortunately, hardship that you, the foreign national, will experience is not considered in the decision process. And, any negative factors relating to you will be considered and weighed against all favorable hardship factors. But, does that mean you should leave out details as to hardship to you? Absolutely not! Because the waiver is discretionary, you should provide evidence of all hardships that will occur even if you believe it will not be considered. Hardship that may occur to you could also be proven to ultimately result in hardship to your U.S. relative.

What Are the Chances I Will Receive a Waiver?

It is not possible to predict the outcome of your case without an in-depth analysis of the facts surrounding your individual situation. The chances of denial are very high.

Because of the high level of difficulty in proving extreme hardship, you should not attempt to rely solely on this or any of the other articles to guide you in a successful waiver application. Seek help from an attorney to assist you in determining what constitutes hardship in your situation and to help you gather the proper documentation.