Extreme Hardship,” for immigration purposes is hardship caused to the qualifying family member that is directly or indirectly caused by the inadmissibility of the alien from the USA. The qualifying family member must be a United States Citizen or Permanent Resident of the United States.

 

Certain grounds of inadmissibility may be waived at the discretion of the attorney general if extreme hardship is shown to the qualifying family member. Hardship to the alien is not relevant. Only the hardship caused to the qualifying family member is relevant.

The U.S. Code as it addresses waivers may be found at INA 212 and INA 237. The U.S. Code does not provide the possibility of a waiver under some circumstances such as when the alien has been convicted of drug trafficking, a weapons charge or a number of other aggravated felonies.

When requesting a waiver an application is required to be filed with the appropriate administrative body; the U.S. consulate where the alien resides, the immigration court if the person is in removal proceedings, or the USCIS.

The Attorney General in his discretion does not consider the common effects of deportation to be extreme hardship. The attorney general assumes the deportation of a family member will result in typical or normal hardship such as the separation of parents from their children, reduced income, loss of employment and loss of property.

How ironic that the government is harsh in the evidence required in demonstrating that an arriving alien will not become a public charge but shows no mercy when a family becomes a burden on the tax payer because the Attorney General deported their bread winner.

Below is a quote from the Board of Immigration Appeals, (BIA):

“U.S. court decisions have repeatedly held that the common results of deportation or exclusion are insufficient to prove extreme hardship. See Hassan v. INS, 927 F.2d 465, 468 (9th Cir. 1991). For example, Matter of Pilch, 21 I&N December 627 (BIA 1996), held that emotional hardship caused by severing family and community ties is a common result of deportation and does not constitute extreme hardship. In addition, Perez v. INS, 96 F.3d 390 (9th Cir. 1996), held that the common results of deportation are insufficient to prove extreme hardship and defined extreme hardship as hardship that was unusual or beyond that which would normally be expected upon deportation. Hassan v. INS, supra, held further that the uprooting of family and separation from friends does not necessarily amount to extreme hardship but rather represents the type of inconvenience and hardship experienced by the families of most aliens being deported. The AAO recognizes that the applicant’s spouse and/or children would likely endure hardship as a result of separation from the applicant…”

At least for now, we must work within the system that we currently have in place. This means that the qualifying relative must demonstrate extreme hardship for his or her family member to remain or return to the United States. The hardship must be more than the normal hardship suffered when a loved one is deported – as set forth above.

There is no set formula for determining whether a situation qualifies for a waiver. Each situation is unique. Consult with an experienced immigration attorney who handles waivers to determine if you may qualify.