Hardship Waivers

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Hardship Waivers

When trying to bring a relative to the United States, they may face inadmissibility and need to consider a hardship waiver to rectify the issue. A hardship waiver allows a relative that would typically be inadmissible to enter the United States because of the extreme hardship that the relative will face if they remain abroad.

This waiver is specific in that factors and considerations that the government will consider to determine if the relative will face extreme hardship if forced to stay in their home country. Immigration attorneys understand the factors and considerations that go into the waiver and how a relative overseas may use the waiver. They can help relatives in the United States evaluate if the waiver is a good fit for the family.

First, however, it can help to understand the process to prepare for and know when to ask for an attorney to consider a hardship waiver.
This article will outline the instances where a hardship waiver may need to be used, explain the extreme hardship waiver, and the factors and considerations that will go into the decision.

Understanding Inadmissibility:

To understand an extreme hardship waiver, it is also essential to know why a family may need to consider the waiver in the first place. The hardship waiver is used in immigration practice when a relative that would typically be admitted to the United States based on their familial status is deemed inadmissible.

This means that an aspect in the person’s history that the United States has decided makes them ineligible for immigration to the United States. Some reasons that a person may be inadmissible include:

  • Health: The United States has deemed certain infectious diseases as reasons for people’s inadmissibility, such as tuberculosis. A person may be able to get around this requirement with specific treatments or with a hardship waiver.  
  • Mental Health: A person may be inadmissible if they have specific mental health issues that could cause them to harm others or themselves. Treatment options or a hardship waiver may be a solution.  
  • Drugs: If a person has a history of trafficking or abusing certain medications, the United States will deem them inadmissible. This type of inadmissibility can generally not be waived.  
  • Moral Turpitude: A person convicted of or admitted to a vial crime would be prohibited. Moral turpitude generally refers to a crime committed recklessly or with intent. This usually means crimes that harm or threaten to harm another. This inadmissibility can be waived.
  • Prior Violations: Another way someone can be inadmissible is if they have violated immigration laws in the past or have given fraudulent materials to immigration officers. A common occurrence that may lead to this type of inadmissibility is when a relative visits the United States and overstays their visa. This type of inadmissibility can be waived.  
  • Multiple Crimes: People convicted of numerous crimes, including sex workers and repeat offenders, will be deemed inadmissible. This type of inadmissibility can be waived.  
  • Spies, Terrorists, and Nazis: This category of inadmissibility is for people who have gone against their home states, the United States, or committed crimes against humanity. This type of inadmissibility cannot be waived.  
  • Public Charge: This type of inadmissibility has been debatable. It is still why someone may be inadmissible. A person must be at risk of needing need-based government assistance to be deemed a public charge. This type of inadmissibility can be waived, especially for elderly relatives needing care in the United States.  

Based on these issues, there are a variety of reasons that a person can be deemed inadmissible. 

Understanding these reasons is essential when deciding whether a hardship waiver is possible. Additionally, depending on the type of visa that one is applying for, not all kinds of inadmissibility will apply.

Understanding Extreme Hardship:

The hardship waiver can help a relative get past a finding of inadmissibility. But this requires that the relative and the family member in the United States can prove an extreme hardship that would result from the relatives not being together in the United States. There are two ways that the relatives can prove hardship. 

These options are:

  • United States: The parties can prove that the relative in the United States would suffer extreme hardship if they would not be able to reunite with their relative. Often when it is a close relationship or someone who could provide financially for the United States resident. It is essential to note that the relative who would suffer hardship in the United States does not have to be the person applying for the relative overseas. But anyone with a qualified relationship with the overseas person.  
  • Home Country: This option is where the relative in the home country would suffer extreme hardship if they are not allowed to join the relative in the United States. Various reasons will be discussed below.  

To apply for the hardship waiver, the relatives must prove the hardship would exist in either situation or possibly in both.  

Factors and Considerations:

To suffer an extreme hardship means that the difficulty faced by the relative in regular life would be greater than the effects of not being allowed to come to the United States. This is defined by a list of factors and considerations that immigration officials use when determining if a family member is eligible for the waiver.

Immigration officers are to look at all the factors and judge the hardship by the totality of the circumstances, which means not letting one aspect be the only one considered. Notably, the Board of Immigration Appeals has determined that the consequences of being denied admissibility do not count toward the hardship. This means that a person cannot apply for a hardship waiver based only on the denial. 

They will not consider these consequences toward the factors unless the denial of admissibility does not cause them. Some common effects that the officers will look for and eliminate as factors for the waiver include:

  • Family Separation: A likely consequence of being denied admissibility is that the family will be separated from each other as one relative is in the United States.  
  • Economic Detriment: If one or both parties would suffer an economic detriment from not living together based on the denial, the board will not consider this.  
  • Readjustment: When a person returns to their home country, they will often have difficulty adjusting, but this is not a factor contributing to extreme hardship in itself.  
  • Educational Opportunities: Denial may cause someone to lose out on the educational opportunities they would hope to pursue in the United States, but this alone is not a reason for hardship.  
  • Medical Services: A person denied admission to the United States might face medical treatment of a lower quality than they would in the United States.  
  • Employment: The employment opportunities for the denied application may differ from what would be available in the United States and can cause the rejected applicant to lose out on their chosen employment.  

Immigration agents will only consider these factors if they are not based solely on the denial of the applicant. Officers and applicants must present evidence and weigh each factor for hardship.

Officers will consider each factor individually if any aspect results in extreme hardship. Suppose the totality of the factors results in hardship. In that case, the person may gain entry despite being deemed inadmissible through the hardship waiver. 

For this reason, it is best when applicants list all of the reasons that they could apply. The factors that the officers consider include:

  • Family Ties and Impact: Immigration officers will consider factors that have to do with the family ties that will impact the relative unable to enter the United States. This can include the age of admissible children and the connections remaining in the home country. Factors that aggravate the relationship between the relatives, the length of the qualified relative’s stay, and the burden of replacing the disqualified relative with another caregiver must also be considered. Here, the officer will evaluate the impact that family members may feel if separated or forced to return to their country of origin.
  • Access to Justice: Immigration officers will consider how removing the relative will impact the person’s access to the justice system in the United States. Particularly if they hope to request or provide testimony in a criminal case, they also look at possible family law proceedings or employment, labor, or civil rights cases. These proceedings can be necessary when looking at the impact because they can affect the relative in their lives moving forward, and they should be able to access these systems.  
  • Social and Cultural Impact: Immigration officers will also look at the social and cultural impact of the relative’s exclusion. Impacts include fear of persecution or societal discrimination, laws that would punish a returning immigrant, access to officials to handle these issues should they arise, ties in the community in the United States and their country of origin, integration in the United States culture, expense of travel if the qualifying relative does not travel with the applicant, and education opportunities for the qualifying relative. Here, the officer is looking at the options and necessary protections that would not be available or would be difficult if the family was separated or forced to relocate.  
  • Economic Impact: The officer will also examine the economic impact on the qualifying relative and the applicant. Some examples include the ability of either party to obtain employment and sell assets, the closing of personal businesses, the impact on the standard and cost of living, the ability to recoup losses, and the cost of care for family members.
  • Health Conditions and Care: Another factor that immigration officers will consider is the health impacts that would result from denial. This includes the presence of health conditions, necessary care available in the country of relocation, psychological effects on the qualifying relative due to either separation or forced relocation, the psychological impacts on the qualifying relative because of the suffering of the applicant, and previous trauma suffered by the qualifying relative that may aggravate the effect of separation or forced relocation.  
  • Country Conditions: Finally, the immigration officer will evaluate the conditions in the country of relocation and assess any impacts that could have, such as civil unrest, violence, military operations, sanctions, environmental catastrophes, dangerous pay for US workers in that country, withdrawal of the Peace Corps, DOS travel warnings, and other socioeconomic or political conditions that could jeopardize the safety of the family.  

In addition to these factors, there are several factors that immigration has deemed “particularly significant factors. This means that a finding of one of these factors will likely lead to a conclusion of extreme hardship. These factors are:

  • Safety Status of Qualifying Relative: If the qualifying relative was granted status in the United States through Iraqi or Afghan Special Immigrant Status, T Nonimmigrant Status, or refugee or asylum status. This type of status is often granted due to significant safety issues in the country of relocation.  
  • Disability: If the qualifying relative or someone dependent on the qualifying relative has been formally designated as disabled, the application will likely find extreme hardship. IF the applicant has a disability, they will often have to prove that they cannot receive the same standard of care.  
  • Military Service: If the qualifying relative is a member of any armed forces and is denied, the Board of Immigration Appeals has found that this impacts their ability to perform. And as a result, it could create a significant hardship.   
  • Displacement of Care for Children: Understanding that it is a goal for families to stay together, if the hardship created for current caregivers is too great, or the applicant needs to take on new caregiving duties for the children, then there would likely be an extreme hardship. 

The hardship waiver is a great resource for families that need to overcome inadmissibility. 

If considering using the hardship waiver, it is crucial to speak with an immigration attorney and ensure that all necessary considerations are made. The hardship faced is highlighted in a way to ensure entry.  

 

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