What is Extreme Hardship? How is it used in immigration waiver applications?

People who are inadmissible are not permitted by U.S. Immigration Law to enter the United States or get a green card or immigrant visa unless they apply for a waiver which "forgives" the person's inadmissibility. The most common categories of inadmissibility according to immigration law include health, criminal activity, national security, public charge, fraud and misrepresentation, prior deportation, and unlawful presence in the United States. This means that individuals found inadmissible, even if they have U.S. Citizen or Green Card Holder relatives, are unable to move forward with the green card process unless a waiver is granted. 

Immigration officers may waive or forgive these inadmissibilities as a matter of discretion for those who demonstrate extreme hardship to qualifying relatives, such as U.S. citizen or legal permanent resident, LPR (Green Card Holder) family members. 

What is Extreme Hardship?

Extreme Hardship is not clearly defined in U.S. immigration law. However, it has come to mean hardship that is greater than what your qualifying relative would normally experience if you were not allowed to enter or stay in the United States. When immigration officers review a waiver application based on extreme hardship to a U.S. Citizen or LPR family member, they do not use a bright-line test. Instead, the officer looks at the totality of the facts and circumstances specific to the case. Officers look at each situation on a case-by-case basis to determine whether there is a finding of extreme hardship. 

What Factors are Considered in Evaluating Extreme Hardship?

To help immigration officers in this determination, they have used certain factors in deciding whether there is an extreme hardship to a family member in a specific case. Some of the considerations include:

1. The age of the alien, both at the time of entry to the United States and at the time of application for suspension of deportation;

2. The age, number, and immigration status of the alien's children and their ability to speak the native language and adjust to life in another country;

3. The health condition of the alien or the alien's child, spouse, or parent and the availability of any required medical treatment in the country to which the alien would be returned;

4. The alien's ability to obtain employment in the country to which the alien would be returned;

5. The length of residence in the United States;

6. The existence of other family members who will be legally residing in the United States;

7. The financial impact of the alien's departure;

8. The impact of a disruption of educational opportunities;

9. The psychological impact of the alien's deportation or removal;

10. The current political and economic conditions in the country to which the alien would be returned;

11. Family and other ties to the country to which the alien would be returned;

12. Contributions to and ties to a community in the United States, including the degree of integration into society;

13. Immigration history, including authorized residence in the United States; and

14. The availability of other means of adjusting to permanent resident status.

We have summarized the Factors and Considerations for Extreme Hardship on a table here.

What is NOT considered to be Extreme Hardship?

The common consequences of denying admission, by themselves, do not warrant a finding of extreme hardship. The Board of Immigration Appeals (BIA) has held that the common consequences of denying admission include, but are not limited to, the following:

1. Family separation;

2. Economic detriment;

3. Difficulties of readjusting to life in the new country;

4. The quality and availability of educational opportunities abroad;

5. Inferior quality of medical services and facilities; and

6. Ability to pursue a chosen employment abroad.

While extreme hardship must involve more than the common consequences of denying admission, the extreme hardship standard is not as high as the significantly more burdensome “exceptional and extremely unusual” hardship standard that that applies to other forms of immigration applications. 

Applying for an immigration waiver is a discretionary application and it can be a complicated and lengthy process. If you are applying for a green card and have questions about immigration waivers and extreme hardship, please contact us. We are here to help.  Follow us on Instagram, Twitter, Facebook, LinkedIn and Tumblr, for up-to-date immigration news.

Torregoza Legal PLLC is the law firm for immigrants, by immigrants. We are founded on the motto of LegalEase: we do away with the legal jargon and make law easy to understand, so you can focus on what’s important to you – going for your American Dream.
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