The Hardship Waiver: A Must-Have for Those With Time-Related Bars of Admissibility

In today’s immigration climate involving massive crackdowns on the employment of undocumented workers, it is practically impossible for foreign nationals to live and work in the United States without lawful status. 

While some try to elude the authorities as they wait for immigration reform, others attempt to legalize their status under current laws. Unfortunately, foreign nationals who entered the country illegally without a visa or without inspection may not seek permanent residence from within the United States. Even if they have a U.S. citizen spouse or parent to petition for them, it is will be difficult unless the pending petition was filed before April 30, 2001.  Instead, they must leave the United States to obtain an immigrant visa at a consulate abroad. But once they leave the country, they generally trigger a three-year or 10-year bar to re-entering the country. 

While there are many bars to inadmissibility and permanent residence in the United States, such as past criminal convictions and the commission of fraud or misrepresentations to obtain immigration benefits, the most common one relates to illegal entry and unlawful presence in the country. A 1996 immigration law created two significant bars: A three-year bar for those who were unlawfully present in the United States for more than 180 days and departed the United States, and a ten-year bar for those who were unlawfully present for one year or more before they left the country.  No one’s “unlawful presence,” however, counted until April 1, 1997, when the law took effect.

Foreign nationals who are subject to the bars must obtain a “hardship waiver” to get their green card, re-enter the United States, and get on the road to citizenship, in spite of past immigration violations. To qualify for a hardship waiver, they must prove that their qualifying relative – a U.S. citizen or permanent resident spouse or parent – would suffer “extreme hardship” if they were not allowed to return to the United States. Children are not qualifying relatives.

A hardship waiver is required once the adjudications officer determines that the foreign national is barred from obtaining permanent residence in the United States as a result of past unlawful presence. The foreign national must then submit a Form I-601, Application for Waiver of Ground of Inadmissibility (filing fee of $545), to the U.S. Citizenship & Immigration Services that adjudicates waivers for that consulate. The foreign national must also submit a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal (filing fee of $545), if they are seeking admission after removal or deportation.

While there is no clear definition of “extreme hardship,” mere separation from a qualifying relative and the normal sadness and stress that accompany the separation are insufficient. Rather, the foreign national must present additional factors that rise to the level of extreme hardship. These include:

Health factors: A spouse or parent has a serious medical condition, cannot travel abroad, and needs the foreign national to provide care. Personal circumstances: The spouse or parent cares for an elderly or ill relative and needs the foreign national’s assistance. Financial situation: The spouse or parent is financially dependent on the foreign national. Political and economic conditions in the home country: There is unrest or other significant problems in the foreign national’s home country that would make it extremely difficult for the foreign national and the petitioning relative to relocate there.

This is by no means an exhaustive list of the factors that will prove extreme hardship.

Every case is different and it is important to account for all the ways, whether large or small, in which the petitioning spouse or parent will suffer if the foreign national is not allowed to return to the United States. The adjudications officer decides how to weigh the evidence, both positive and negative, and the grant of a waiver is a matter of discretion. Therefore, the applicant must present as many affidavits and supporting documents as possible to establish the extreme hardship the petitioning spouse or parent will experience. 

In one recent case, Igbanugo Partners Int’l Law Firm successfully obtained a hardship waiver for a foreign national who would have otherwise been separated for a long period of time from his U.S. citizen spouse, son and stepdaughter.  He hoped to obtain permanent residence based on his marriage to a U.S. citizen, but had to return to his home country to apply for an immigrant visa because of his unlawful entry into the United States. Igbanugo Partners prepared the I-601 waiver application and established, among other factors, that the couple’s son required special education classes and the foreign national was deeply involved in providing the son with the care he needed. His I-601 application was granted and he was able to return to the United States, obtain his green card, and be re-united with his family.

About Igbanugo Partners International Law Firm

Igbanugo Partners Int'l Law Firm is based in Minneapolis, Minnesota. It focuses on (1) U.S. immigration law and (2) international trade law in Sub-Saharan Africa.

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