Section 212(a) of the Immigration and Nationality Act (INA) provides that certain individuals are inadmissible and thus ineligible to receive visas or admission into the United States. This includes individuals who have, among other things, been unlawfully present1 in the United States and/or committed certain crimes. Such inadmissibility can be waived, or pardoned, in certain circumstances, allowing the individual to be admitted to the United States, if the individual can demonstrate hardship to a U.S. citizen or Lawful Permanent Resident (LPR) qualifying relative.
IS A WAIVER AVAILABLE FOR ME?
The first step is to determine whether a waiver is even available for the specific ground of inadmissibility. Individuals who are unlawfully present in the United States for one year or more on or after April 1, 1997, are subject to a 10-year bar to re-entry. Because, subject to exceptions, immigration law requires individuals with unlawful entries to process permanent residency abroad, the bar most
often arises when the alien returns abroad for processing. The alien may obtain a waiver of the bar, however, if he or she can demonstrate that a U.S. citizen or LPR qualifying relative would suffer extreme hardship should the individual not be granted a waiver of inadmissibility. But, if the individual was unlawfully present for one year or more and left the United States but returned, or attempted to return, illegally, he or she is not eligible for a waiver until he or she has remained outside of the United States for 10 years. Likewise, certain criminal grounds of inadmissibility can be waived, including crimes involving moral turpitude, a single offense for simple possession of marijuana under 30 grams, multiple criminal convictions where the aggregate sentence is five years or more, serious criminal offenses involving a grant of immunity, and prostitution and commercial vice activities. To qualify for the waiver in all cases except prostitution, the applicant must demonstrate that the inadmissible offense occurred more than 15 years prior to the date of the alien’s application for a visa, admission, or adjustment of status. Moreover, the individual must demonstrate that he or she is rehabilitated and his or her admission would not adversely affect the national welfare, safety, or security. Otherwise, the applicant must demonstrate that he or she is either a Violence Against Women Act (VAWA) self petitioner, or his or her removal would result in extreme hardship to a U.S. citizen or LPR qualifying relative.
No waiver is available to individuals who have been convicted of or who have admitted to committing acts that constitute murder or criminal acts involving torture, or conspiracy to commit such acts. It is important to note that in cases involving violent or dangerous crimes, the Attorney General may deny the waiver on discretion unless the applicant demonstrates extraordinary circumstances, including national security or foreign policy considerations or where the applicant demonstrates “exceptional and extremely unusual hardship.” Additionally, “there may be stronger negative factors to consider in the analysis of discretion in cases involving criminal activity or misrepresentation” in general.
WHO IS A QUALIFYING RELATIVE?
The qualifying relative for purposes of hardship differs depending on the ground of inadmissibility being waived. For instance, individuals subject to a bar of admission due to unlawful presence can have the bar waived if they can demonstrate extreme hardship to a U.S. citizen or Legal Permanent Resident (LPR) spouse, or parent. Children are not qualifying relatives for purposes of unlawful presence waivers. Children are, however, qualifying relatives for purposes of waivers for criminal grounds of inadmissibility. Thus, if the applicant can demonstrate extreme hardship to a U.S. citizen or LPR child, spouse, or parent, he or she can obtain a waiver of inadmissibility. However, while children are not qualifying relatives for purposes of the unlawful presence or fraud waivers, an alien can argue that the
hardship to the children is imputed to the qualifying relative, usually the spouse, because what the child suffers adds to the qualifying relative’s hardship. For example, if the child has a medical issue, the child’s hardship causes additional strain on the qualifying relative including additional medical bills, time off from work, and emotional distress.
WHAT IS “EXTREME HARDSHIP?”
The law does not define “Extreme Hardship.” USCIS enumerates a few factors considered as “hardship” on its instructions provided to applicants, which include health, financial consideration, educational considerations, and personal considerations but it does not actually define “extreme hardship.”
The Board of Immigration Appeals (BIA) has shed some light on what constitutes “extreme hardship.” In Matter of Anderson, the BIA discussed the term “extreme hardship” in the context of an application for suspension of deportation under former INA §244(a)(1). The decision includes a cautionary comment about relying too heavily on “mere economic detriment” as a basis for a claim of extreme hardship. USCIS holds the opinion that most deported aliens will suffer some degree of economic hardship and that most will be unable to maintain the standard of living at home which they managed to achieve in the U.S.
Conditions in an alien’s homeland are relevant in determining hardship, such as adverse economic and political situations. High rates of crime an the homeland also are a factor in determining extreme hardship.
Clearly, it is only when other factors such as advanced age, severe illness, family ties, etc. combine with economic detriment to make deportation extremely hard on the alien or the citizen or permanent resident members of his family that Congress has authorized suspension of the deportation order.
The Anderson factors (some of which are more relevant to the issue of discretion than the level of hardship) are:
- Age of subject;
- Family ties in the United States and abroad;
- Length of residence in the United States;
- Health of subject;
- Economic and political conditions in country to which alien is returning;
- Financial (business and occupation) status of subject;
- Possibility of other means of adjustment of status;
- Whether subject is of special assistance to the United States or local community; and
- Subject’s position in the community.
This office normally provide a detailed letter from the qualifying relative(s) describing in their own words what the hardships to them may be if their relative is deported. Often when there is no evidence of a major hardship (medical, etc.), the letter from the qualifying relative is very persuasive.
Additionally, the Board of Immigration Appeals has held that hardship should be determined in the aggregate. The Board stated that “relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.”
In Matter of Pilch, the Board enumerated the hardship factors set forth in Anderson and expanded on them. In Pilch, the Board upheld the denial of a suspension of deportation application in included the following factors:
- the length of the alien’s presence over the minimum requirement of seven years;
- the alien’s age, both at entry and at the time of application for relief;
- the presence of lawful permanent resident or U.S. citizen family ties in the United States;
- the alien’s family ties outside the United States;
- the conditions in the country or countries to which the alien is returnable and the extent of the alien’s ties to such countries;
- the financial impact of departure from this country;
- significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the alien will return; and
- the possibility of other means of adjustment of status or future entry into this country.
If there is no medical hardship we normally submit a psychological evaluation of the qualifying relative. Even if the qualifying relative does not have a history of ongoing mental illness, a psychological evaluation may reveal information that the relative can incorporate into his or her own hardship declaration.