Extreme Hardship for Inadmissibility Waivers

The U.S. government has strict regulations on who can enter the country or who can become a lawful permanent resident. Immigration officials can deny entry to foreign nationals for a variety of reasons, including past criminal convictions, communicable medical conditions, or threats to national security. 

However, there are waivers available based on a showing of extreme hardship.

Inadmissible immigrants have to show extreme hardship if they cannot enter the country to get a waiver. The standards for an extreme hardship waiver are high. To find out whether you can qualify for a waiver, talk to a deportation immigration lawyer.

What Are Extreme Hardship Waivers?

When foreign nationals seek a visa to enter the country or file for adjustment of status to get a green card, immigration officials look at their background to determine if they are eligible. Even if someone was eligible to enter the country on a non-immigrant status visa, immigration officials can deny an adjustment of status to prevent them from staying in the country or changing their immigration status.

Even if someone is deemed ineligible for entry or immigration, there are waivers available. Other forms of relief or status, such as benefits under the Violence Against Women Act (VAWA) or for trafficking victims (T-visas), also have their own specific waiver provisions for certain grounds of inadmissibility.

An extreme hardship is another type of waiver. A waiver of inadmissibility based on extreme hardship allows someone to enter the U.S. or get lawful status. To determine whether someone is eligible for a waiver, immigration officials consider a variety of factors. However, some grounds for inadmissibility are not eligible for waivers.

What Are Grounds for Inadmissibility?

Inadmissibility means the U.S. Citizenship and Immigration Services (USCIS) does not think you should stay in the country or get admission for an immigrant visa or non-immigrant visa.

There are several grounds for inadmissibility under the Immigration and Nationality Act (INA). Grounds for inadmissibility include:

• Health conditions (communicable diseases of public health concern, failure to show proof of required vaccinations, or physical and mental disorders with associated harmful behavior)
• Criminal activity (crimes involving moral turpitude, drug crimes, prostitution, multiple convictions)
• Immigration fraud or misrepresentation (fraud or misrepresentation in immigration documents),
• Unlawful entry and unlawful presence
• Other disqualifying factors

Some grounds for inadmissibility do not have waiver eligibility. Grounds that generally cannot be waived include immigrants involved in drug trafficking, espionage, or terrorist activities, with very limited exceptions in specific cases.

Unlawful presence makes non-citizens inadmissible for a period of time, depending on how long they were unlawfully present in the U.S. Being unlawfully present for less than 180 days does not trigger a statutory inadmissibility period, but it can still affect future immigration benefits or decisions. You are inadmissible if present in the U.S. for:

• Less than 180 days: No ban
• More than 180 days but less than one year: 3-year inadmissibility period
• More than one year: 10-year inadmissibility period

If you are inadmissible because of unlawful presence, you can apply for an unlawful presence waiver. Form I-601A is an Application for Provisional Unlawful Presence Waiver to waive the penalties for unlawful presence. This is generally for people in the U.S. before deportation or self-removal to avoid inadmissibility when they apply to re-enter.

Some ways to get a waiver depend on the grounds for inadmissibility. For example, you can apply for a waiver for inadmissibility based on criminal activity if more than 15 years have passed, you show rehabilitation, and admission is not against public safety or security.

To apply for a waiver, talk to an immigration lawyer to find out if you are eligible and how to apply for a waiver of inadmissibility.

The Extreme Hardship Standard

When determining whether an immigrant meets the extreme hardship standard, immigration officers look at the totality of the circumstances. Extreme hardship is a discretionary waiver. It is up to the USCIS official to decide if you meet the standard.

Common examples of extreme hardship factors to consider include:

• Family separation and hardship for the U.S. citizen spouse and other family members
• Economic problems in their home country and the financial impact on their family in the U.S.
• Country conditions and difficulties readjusting to returning to a foreign country
• Inferior medical care and health conditions of the qualifying relative
• Employment and educational opportunities

Depending on the grounds for inadmissibility, family ties to the U.S. are a compelling factor for an immigration waiver. You can show you are related to a qualifying family member U.S. citizen or lawful permanent resident (LPR) as a spouse, parent, or child. However, family separation alone may not be enough to show extreme hardship.

Application for Waiver of Grounds of Inadmissibility

You can file for a waiver request if a consular officer finds you are inadmissible during your visa interview or if immigration officials deny your adjustment of status to lawful permanent residence.

You can apply for a waiver of inadmissibility and file the form with USCIS. Use Form I-601, Application for Waiver of Grounds of Inadmissibility. When you apply for an extreme hardship waiver, you must show evidence to support your claim of extreme hardship. Supporting evidence can include:

• Affidavits from other individuals (employers, doctors, friends, and relatives)
• Family relationship to a U.S. citizen or LPR family member
• Acting as a caregiver for a citizen or LPR relative
• Evidence of financial impact
• Qualifying child’s special education needs
• Medical records
• Evidence of rehabilitation
• Employment records and income tax returns
• Home country conditions

After filing the I-601 waiver application, USCIS will review the record and notify you of the decision. If the immigration officer denies your application, you can file an appeal, a motion to reopen, or a motion to reconsider.
U.S. immigration laws can change at any time. The government can change inadmissibility standards or the requirements to show extreme hardship. An immigration lawyer can explain the current legal requirements and help you with your immigration court filings. For legal advice about your extreme hardship waiver case to avoid removal, contact a local immigration attorney.