Extreme hardship waivers are a specific type of immigration waivers that use the same legal standard: extreme hardship. Not all waivers use this standard. Generally speaking, proving extreme hardship means showing that the hardship suffered by someone is above and beyond that which a normal person might suffer. This same standard is used for a variety of waiver types, including those for unlawful presence in the US, misrepresentation or immigration fraud, and certain criminal convictions.
Why Request an Extreme Hardship Waiver?
The reason why someone requests a waiver is because they are considered to be inadmissible and ineligible to get a visa or green card without a waiver. If someone is told they need a waiver, it’s not optional and there may be tight deadlines. In ideal circumstances someone will be aware of the waiver requirement before they need to prepare one. They are time consuming, and it is not fun to prepare a waiver that has to be filed within 30 days.
What Types of Waivers Use the Extreme Hardship Standard?
Extreme hardship is a waiver standard, not a type of waiver. The types of waivers correspond with the grounds of inadmissibility. For example, someone who had unlawful presence in the US needs an unlawful presence waiver. That waiver uses the extreme hardship standard. A waiver for fraud or misrepresentation uses the same standard. Some criminal waivers also use the same standard. Because inadmissibility and waivers are complex issues, it is highly recommended to schedule a consultation to review the situation.
What is Extreme Hardship for Immigration Waivers?
Extreme hardship is just a standard that the immigration law requires someone to prove in order to be approved for a waiver. You might ask, extreme hardship to whom? It actually depends on the type of waiver. But, generally, the standard is referring to someone other than the person who is trying to immigrate or get a benefit. It is frequently a US Citizen or Permanent Resident spouse or parent. Notably, children are not usually included. But, hardships to children can be an important part nevertheless, because hardships to children are frequently hardships to spouses and parents.
An experienced attorney will be able to fit a family’s situation into the extreme hardships standard. This requires a good understanding of the case law and how USCIS has interpreted it. Failing to understand the standard may well mean denial of the waiver. The standards are actually well documented and can be reviewed by anyone at the USCIS Policy Manual, available at https://www.uscis.gov/policy-manual/volume-9-part-b
In particular, it’s very important to review the list of hardship factors that USCIS should consider. USCIS does not, in fact, always consider these factors. It’s likely that some of the people who decide waivers have not reviewed the factors. As a result, it might be helpful to use the hardship factors as a checklist for documenting and arguing the case: https://www.uscis.gov/policy-manual/volume-9-part-b-chapter-5
Additionally, some factors are really important. They are so important that USCIS considers them “particularly significant” and will generally approve a case if those factors are present. That’s important when approval of a waiver is the key step to approval of a green card. Every single waiver case should evaluate whether there are any of the “particularly significant factors” present. Those can also be found at https://www.uscis.gov/policy-manual/volume-9-part-b-chapter-5
Do I Need A Lawyer for an Extreme Hardship Waiver?
Lawyers are not required for immigration cases, but you can gain a lot by speaking to an experienced professional who has prepared and received approvals for many extreme hardship waivers. A lawyer who works on waivers will know how likely it is to be approved and how to make the waiver stronger. There’s no reason to file a case without scheduling a free consultation.