W. John Yahya Vandenberg, Esq.

In our previous post we dealt with Provisional Waivers.  So our readers should have a pretty good idea of who may qualify to file one; if you don’t, our article and the fact sheet from the U.S. Citizenship & Immigration Service (“USCIS”) can be found here.

But the next issue with Provisional Waivers, if you meet the criteria to file one, is that the immigrant has to show “extreme hardship.”  Now, what is “extreme hardship?”  That’s a legal matter, and if you haven’t made up your mind to get a good, experienced immigration attorney to help you, I hope this article will encourage you to do so.

Here’s why: “extreme hardship” in the case of Provisional Waivers will only accept “extreme hardship” to the U.S. citizen or Lawful Permanent Resident (a greencard holder, also called an “LPR”) spouse or parent of the immigrant.  That means that if the immigrant needing a Provisional Waiver is the single mother of 10 U.S. citizen children, and her parents have died, she is not going to be able to get a Provisional Waiver no matter how sorry the USCIS officer feels for her.  Hardship to the immigrant his or herself doesn’t count; USCIS generally just doesn’t care, at least for the purposes of a waiver.  And hardship to U.S. citizen or LPR children doesn’t count directly, either.  Bottom line: no U.S. citizen or LPR spouse or parent, no Provisional Waiver.

Now, if the immigrant does have a qualifying relative – a U.S. Citizen or LPR spouse or parent, they get to the next step: a chance to demonstrate that if they leave the qualifying relative in the USA alone, or the qualifying relative relocates to the foreign country, the qualifying relative will experience “extreme hardship.”

What is extreme hardship?  That’s a nebulous term that is more often determined by what it’s not.  The USCIS is quick to point out that extreme hardship is not “the normal hardship” that one would expect a spouse or parent to experience if the immigrant doesn’t get the waiver.  “Normal hardship” is generally viewed by USCIS as economic disadvantage, inability to maintain one’s present standard of living, separation from family members, or cultural readjustment.  These “normal hardships” alone won’t generally constitute “extreme hardship.”

Helpfully, we do have some guidance on the factors that can show “extreme hardship.”  The classic analysis for “extreme hardship” is set out in the precedential case Matter of Cervantes-Gonzales.  There, the Board of Immigration Appeals set out the standards taken into account.  They are:

1)      If the immigrant has U.S. citizen or LPR family members, and how many;

2)      The qualifying relative’s family ties outside the United States;

3)      The country conditions where the qualifying relative would have to relocate, and their ties to that country, if any;

4)      The financial impact that the qualifying relative and/or the immigrant’s departure from the United States will cause;

5)      Significant conditions of health in the qualifying relative, particularly when tied to the unavailability of suitable medical care in the foreign country.

This list is not exhaustive, but it’s where the USCIS will start when analyzing an I-601A Provisional Waiver application seeking approval based on “extreme hardship.”  Not all of the factors have to be in the immigrant’s favor to get an approval, and the list is not all-inclusive.

It is also good to keep in mind that the above factors, and others, can also demonstrate “extreme hardship” when they are taken in the aggregate.  So there is a “totality” of the factors that is taken into account.  This means even though the qualifying relative may not have any one big, serious hardship, if they can show a lot of lesser ones, they may still meet the “extreme hardship” standard.

So what do you do, Mr. Vandenberg, when someone asks us if they qualify for a Provisional Waiver?  Well, the first thing we do is run through the qualifying factors we write about above.  Does the immigrant meet the qualifications for a Provisional Waiver?  If yes, we move to the next question: does the immigrant have one or more “qualifying relatives?”  If yes, then we go through the Cervantes Gonzales factors above.  We also have our own checklist, and here’s what I’ll be particularly interested in:

1)      If the immigrant has U.S. citizen or LPR relatives in the USA, how many do they have?  Are they all, or are many of them, willing to write a letter about how much the immigrant means to them and the qualifying relative(s)?

2)      What kind of health problems – physical, mental, emotional – do the immigrants’ relatives have?  Remember also that the qualifying relative doesn’t necessarily have to have a health problem.  The problem could be of someone who is not a qualifying relative, but someone the qualifying relative must care for.  For example, an immigrant’s wife may have to care for her ailing and elderly parent.  Or their sick child, or child who has autism or a learning disability.  And I’ll need to research if that condition be adequately treated in the foreign country.  This factor can provide very strong support for a waiver if the illness is serious and supported by trustworthy evidence.

3)      What does the qualifying relative do for the community?  Is the qualifying relative a nurse?  A social worker?  Someone who volunteers their time for their mosque or church or synagogue, or a local community organization? This is viewed very positively by USCIS, and also demonstrates the loss to the community if the waiver is not granted and the qualifying relative relocates to the foreign country.  And if the immigrant themselves is an integral part of the community it can at least be considered as a matter of discretion by USCIS.

4)      What are the education and/or career disruptions to the qualifying relative?  This can also be very powerful for demonstrating “extreme hardship.”  We might be able to argue that the if qualifying relative is without the immigrant, they will neither be able to complete a degree they are working on, nor be able to complete it in the foreign country because of language, cultural, or equivalency issues.  Or perhaps their degree or experience is only useful in the United States, no they would be unable to obtain meaningful work in the foreign country.

5)      Would there be serious financial problems caused by leaving the USA to be with the immigrant, or staying here alone?  Is a mortgage going to go into default?  Is the family going to lose their car or apartment?  Will a spouse or child have to drop out of school to help the family support itself?  While merely having to change a standard of living is not usually “extreme hardship,” losing a home or significant property or assets would likely rise to extreme hardship.

6)      What are social or cultural conditions like in the home country for the qualifying relative?   Is sexual harassment in the workplace rampant and generally accepted?  Are female students given the same chance to attend school and succeed as male students?  Would the qualifying relative be able to function if they don’t speak the language?

7)      What are the political conditions?  Is it a real possibility that if the qualifying relative relocates to the foreign country they could be targeted for political violence?  Is there a difference of religion, or a danger just in being identifiably an “American?”

Once we have the answers to these questions – and usually many more that come about because of the immigrants’ answers – we’re ready to move on to the hard work: proving it.

You can’t just fill out an I-601 form, pay the fee, and send in a letter that the qualifying relatives are really going to miss the immigrant.  A good, successful waiver application is a mix of “subjective” and “objective” evidence.  The affidavits (sworn statements) of the qualifying relative(s), other family members, witnesses, and professionals serve as a type of evidence, and help the USCIS understand the documentation.  The words in an affidavit may be personal views, but even so they can be taken into account.  The key to making those affidavits truly work as persuasive evidence is to accompany them with good quality evidence.

Talk is cheap when it comes to waivers.  USCIS officers have read more than a few exaggerations or even outright lies, so they can be skeptical.  To get an approval, the immigrant is going to have to prove each and every hardship.  Does the qualifying relative have a medical problem or disability?  USCIS wants to see the medical records and a detailed letter from the physician.  Your house is going to be foreclosed without the immigrant’s income? USCIS is going to have to see the mortgage paperwork, details of all your bills and income, and exactly how much money comes in and where it goes.  Qualifying relative suffers from depression?  USCIS will generally only give real weight to proof that shows that depression has been present over a longer term, and a one-time visit to a psychologist who you paid for an “evaluation” is unlikely to be trusted.

And a word to everyone here about proof.  USCIS officers are by and large good folks.  They believe in doing the right thing.  They are good at what they do, and don’t like it when applicants treat them as if they are foolish or gullible.  The USCIS officers believe, like most everyone else, that honesty is the best policy.  ALWAYS be truthful in everything you tell or submit to immigration, and to your lawyer for that matter.  If any lawyer ever asks you to lie about something, or they tell a lie, then immediately go to someone else.  Lying does not have any part in the immigration process, including waivers.  If you can’t tell the truth, you shouldn’t be submitting anything to USCIS or any other government agency for that matter.  And if your lawyer can’t give you a good chance of success by telling the truth, that means they are a bad lawyer, or just a crook who’s only after your money. To learn more about these crooks, the damage they cause, and how to spot them, go to the AILA’s Stop Notario Fraud website.

We are well aware that waivers are difficult.  We have had success with our waivers both locally and overseas.  Here is an I-601 Waiver Grant for Unlawful Presence by the AAO that we won; it shows how an actual USCIS adjudicator examined extreme hardship in a real case.  Our client, from El Salvador, was on Temporary Protected Status.  His wife is a U.S. citizen.  In order to get his greencard, he traveled back to El Salvador and came back for his adjustment of status (greencard) interview.  This exit and re-entry using Advance Parole made him eligible for Adjustment of Status, but triggered the 10 year bar due to unlawful presence (note that today, after Matter of Arabally and Yerrabelly was issued on April 17, 2012, that one brief, casual, and innocent trip abroad wouldn’t be a problem).  USCIS Philadelphia denied his greencard, saying he didn’t show “extreme hardship.”  We disagreed, so we appealed it to the USCIS Administrative Appeals Office.  After a long wait, the Administrative Appeals Office sided with us, found extreme hardship, and sent the file back to Philadelphia.  Today, our client has his greencard because we showed extreme hardship in his case.

The Provisional Waiver program is trickier than the above client’s case.  For starters, there is no appeal if your Provisional Waiver is denied.  If you are denied, you are not eligible any more for the program.  You would at that point be stuck with the regular processing as it is now – meaning a long wait in the foreign country, if you still wished to proceed.

The bottom line: if you believe you or someone you know qualifies for the Provisional Waiver program, contact us and let’s sit down for a consultation.  We have coloring books for your children, my office is quiet, and we can see if the Provisional Waiver program works for you.  If you only speak Spanish, or Portuguese, or French, or Arabic, or Urdu, we have translators on staff.  The Provisional Waiver program is one of the most significant USCIS policy changes in a decade, and it’s important to utilize its full, humanitarian use.  However, even if you or your loved one do not qualify, a consultation is still a good idea.  There may be other options that we can explore; perhaps a waiver isn’t even necessary, or there is a better option.  Or my advice may be to just wait and see what happens next; Comprehensive Immigration Reform may be coming, and if it is, it will help even more families stay strong together.

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