Extreme Hardship Waiver

In some instances, an individual may try to get a U.S. visa or green card but is inadmissible on certain grounds. This may include something like an inadmissible crime on the individual’s record. In certain cases, the United States Citizenship, and Immigration Services (USCIS) can exercise discretion and waive what would otherwise be an inadmissible condition on a person seeking to immigrate to the U.S. in certain cases, however, a waiver may only be available in cases of “extreme hardship.”

What is an Extreme Hardship Waiver?

Extreme hardship waivers may be available in certain instances where a person who is otherwise inadmissible to the U.S. can show that not be admitted into the country would cause extreme hardship for a qualifying relative. The USCIS maintains that strong evidence that the relative would face extreme hardship in the U.S. if the otherwise inadmissible individual was not let into the country or strong evidence that the relative would face extreme hardship in the home country.

There is no clear definition of “extreme hardship” in U.S. law. Instead, USCIS adjudicators will consider a range of factors to decide if extreme hardship exists in each case. In fact, USCIS must consider all relevant factors in rendering this decision. Relevant factors to consider in determining if a waiver should be granted based on extreme hardship include:

  • The immigrant’s age at the time of entry into the United States as well as at the time the application for relief is filed
  • The ages of the waiver applicant’s children
  • The ability of the applicant’s children to speak the native language should they be forced to return
  • The ability of the applicant’s children to adjust to life in the country of origin should they be forced to return
  • The availability of medical treatment needed by a qualifying relative in the country of origin
  • The applicant’s length of U.S. residency
  • Contributions the applicant has made to the U.S. community
  • Ties the applicant has to the U.S. community

Not all factors will be given the same weight. It is within the discretion of the USCIS officer reviewing the application to determine whether or not a waiver pursuant to extreme hardship is merited.

With extreme hardship waivers, a qualifying relative usually means a spouse, parent, or child. The extreme hardship test is applicable to several different types of waivers, including

  • Waiver of deportation or barred entry (Form I-601)
  • Provisional unlawful presence waiver (Form I-601(a))
  • Waiver of inadmissibility for certain crimes (Immigration and National Act (INA) 212(h))
  • Waiver of conditions on lawful permanent resident status (INA 212(i))