Determining Extreme Hardship for Purposes of an I-601A Unlawful Presence Waiver

January 29, 2016

“My spouse entered the country illegally and has remained here ever since…”

The Provisional Unlawful Presence Waiver is a valuable tool for the immediate relatives of U.S. citizens present in the country without status. To be eligible for the waiver, an applicant must be at least 17 years of age, physically present in the United States, and be the beneficiary of an approved I-130 immediate relative petition. An applicant must also be seeking a waiver of unlawful presence accrued only in a single stay of 6 months or more. The most important – and most difficult to prove – requirement, however, is the applicant’s burden of demonstrating that his or her U.S. citizen spouse or parent (the “qualifying relative”) would experience extreme hardship if the applicant was refused admission to the United States. Specifically, the applicant must establish that refusal of admission would result in extreme hardship to the U.S. citizen spouse or parent if the qualifying relative chooses to remain the United States without the applicant or chooses to relocate abroad to live with the applicant outside the country. The applicant must also establish that his or her case warrants a favorable exercise of discretion – essentially that the applicant is deserving of the waiver – by showing that favorable factors outweigh unfavorable factors in a specific situation.

USCIS has provided guidance on what it considers relevant to proof of extreme hardship. The evidence can be divided into 5 categories. Some examples of what type of evidence would be acceptable follow:

1. Health – evidence that the qualifying relative is receiving specialized medical treatment in the United States that is not available overseas or not available at the same standard as in the United States.
2. Financial Status – whether or not the qualifying relative could find employment overseas that would offer similar financial benefits as in the United States; whether the qualifying relative has financial obligations that would be costly or impossible to terminate; whether the qualifying relative has special healthcare or education costs related to elderly or young dependents, for example.
3. Education – interruption in a U.S. higher education program; lower quality education options overseas; foreign language training to become employable overseas and corresponding loss of income.
4. Personal Considerations – close ties to the United States and to a particular community.
5. Special Factors – socioeconomic conditions overseas, fears of persecution, barriers to social integration.

The key to a successful I-601A Application is the strength of its documentation. Please contact us for a consultation in this complex area of immigration law.

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