Extreme Hardship Waivers for fraud, criminal activity and 3/10 year bar
What is an Extreme Hardship Waiver?
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.
When is an Extreme Hardship Waiver Required?
You must file an I-601 or I-601A extreme hardship waiver if you are “inadmissible” to the United States for one or more of the following reasons: unlawful presence, misrepresentation/fraud, or crimes involving moral turpitude.
Unlawful Presence (3-year bar, 10-year bar): Unlawful presence is accrued when a person is in the United States without lawful status. If you have entered the United States “without inspection,” meaning you entered the United States without interacting with a Customs and Border Protection officer, you begin accruing unlawful presence the moment you arrive in United States. If you enter the United States with a visa and overstay the amount of time in the United States allowed by that visa, you are accruing unlawful presence. If you have accrued more than six months but less than one year of unlawful presence, you face a three-year bar of inadmissibility. If you have accrued more than one year of unlawful presence, you face a ten-year bar of inadmissibility.
Misrepresentation/Fraud: If you have obtained or attempted to obtain an immigration benefit by willfully presenting fraudulent documents or false information to an immigration officer or on an immigration application, you are inadmissible. The misrepresentation/fraud inadmissibility bar is a lifetime bar.
Crimes Involving Moral Turpitude: If you have been convicted of or admitted to committing a crime involving moral turpitude (CIMT), you are inadmissible. A CIMT involves engaging in morally reprehensible and intrinsically wrong conduct with willful, reckless, or malicious intent.
How do I get my Extreme Hardship Case Approved?
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. The ‘qualifying relative’ 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.
There is no clear definition of “extreme hardship” in U.S. law. Instead, USCIS adjudicators will take into account a range of factors in order to decide if extreme hardship exists in each case. In fact, USCIS must take into account all relevant factors in rendering this decision. Relevant factors to consider in determining if a waiver should be granted on the basis of 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.
Do I Need A Lawyer for an Extreme Hardship Waiver?
If you are interested in learning more about obtaining an extreme hardship waiver, the Law Office of Christine Troy is here to help. Our immigration attorneys are well-versed in inadmissibility and waiver issues and will help you understand the hardship requirement and application process, work with you on the gathering of evidentiary documents, and draft and prepare a detailed waiver application based on your individual situation.
To learn more how the Law Office of Christine Troy can help you obtain an extreme hardship waiver, please call us at (415) 399-9490 or schedule a consultation online.