What Is an I-601 Hardship Waiver?
If you are a would-be immigrant who is inadmissible to the U.S., you may be able to overcome this by applying for what’s called a waiver of inadmissibility, on Form I-601. The unlawful presence waiver application, once granted, will “forgive” the fact that you were out of status when you were in the United States and entered without a visa. If you meet the I-601 provisional waiver requirements, you could go ahead and take the steps to get legal status as the spouse of a U.S. citizen by applying for the waiver within the United States and attending the immigrant visa interview outside of the United States.
Who qualifies for an I-601 Hardship Waiver?
Most I-601 waiver applications are based on showing that a qualifying relative (a member of the immigrant-applicant’s immediate family) who is a U.S. citizen or permanent resident would suffer extreme hardship if the immigrant applicant were to be denied entry or removed from the U.S. or if the whole family had to move overseas in order to be together. The term “extreme hardship” is not defined in the Immigration and Nationality Act (I.N.A.). Consequently, the decision-makers have greater discretion to approve or deny I-601 waiver applications than they do with other U.S. immigration benefits.
Proving extreme hardship
One of the most common reasons that the U.S. immigration authorities deny an I-601 waiver application is for insufficient evidence of extreme hardship. Sometimes this is simply due to the applicant not having submitted enough convincing documentation. Your qualifying relative may truly be experiencing extreme hardship at the prospect of your being denied a visa or green card, but if you did not provide enough evidence with your application to convince the adjudicator reviewing your case, your application could be denied. In cases such as this, you can file a motion to reopen or reconsider, or you can file a new waiver application with the additional documentation that will demonstrate extreme hardship.
Extreme hardship means “greater than the normal hardship” that anyone would expect the relative to suffer if applicant is not given a visa. There is an important distinction between “Extreme” and “Normal” hardships. To get a basic understanding of circumstances that may go from the category of normal to extreme, please review the factors below:
- Prolonged experience of separation anxiety;
- Loss of job/income/education opportunities; or
- Difficulty for a U.S. citizen to move to the applicant’s home country due to financial constraints, dangerous political conditions, or cultural differences.
Evidence of hardship includes the following factors: Medical, Financial, Emotional/Mental health hardships and other extremes of hardship to US citizen or permanent resident.
Aggravating and mitigating factors
Even if extreme hardships are established, if the impact of mitigating and aggravating factors is not spelled out well, the I-601 waiver may be denied as a matter of discretion. Aggravating factors include, but are not limited to, prior violations of immigration law, criminal charges, arrests, convictions, and marriage fraud. If your spouse is from your home country or speaks your native language, any of these factors on his or her record could also be viewed as aggravating.
If you have aggravating factors present, you will need to show a much higher level of extreme hardship for your qualifying relative. You will also want to submit evidence of mitigating factors. Mitigating factors can overcome aggravating factors, particularly if they are directly related.
For example, if you have a criminal background, evidence that you participated in a rehabilitation program is a mitigating factor that could strengthen your application. If you are inadmissible because of unlawful presence, evidence that you acted in good faith and believed you were complying with immigration laws is a mitigating factor that could strengthen your application. If your spouse is from your home country and can speak your native language, evidence that he or she has to stay in the U.S. to care for a sick relative is a mitigating factor that could strengthen your application.
How can an attorney help in this process?
The adjudication process for I-601 waiver applications is somewhat subjective. The subjectivity involved in the adjudication process for I-601 applications means that the chance of your application being approved depends on the strength of the evidence you submit. Adjudicators will review your evidence and balance the hardships you present with the existence of any aggravating and mitigating factors. The level of discretion and subjectivity involved in adjudicating I-601 waiver applications means you can never guarantee a positive outcome. Applying for an I-601 Hardship Waiver can be time consuming and complicated. And it is commonly a source of anxiety due to the fact that the hardship decision carries so much impact on family members and timelines for reaching goals for the future.
It is always a good idea to consult with an immigration attorney who has extensive experience filing waiver applications. It is through experience that attorney can identify those factors that can make or break your application. It is possible to produce the best results for an I-601 waiver application when we combine immigration legal experience with your personal facts, arguments, and documentation.