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Hardship Waiver

What is a hardship waiver? Under United States immigration laws, the effects of certain issues that can give rise to deportability or inadmissibility can be waived at the discretion of the United States Citizenship and Immigration Services (USCIS) or immigration court. There are many different types of waivers under immigration law. Most commonly, waivers are needed because a noncitizen has done something that makes him or her ineligible for a visa or another benefit.

Hardship Waivers for Noncitizens in the U.S. Illegally

One type of waiver, called the I-601 waiver, allows an applicant who is unlawfully present in the United States to ask for a waiver from certain immigration requirements. Until March 2013, illegal aliens who were immediate relatives of United States citizens were not eligible to adjust their status in the U.S. to become lawful permanent residents. They were required to leave the country to adjust their status and obtain their immigrant visas abroad. This requirement presented problems for those individuals who had overstayed their visas and were therefore barred from re-entering the U.S. for 3 to 10 years. People in this situation have had to spend years away from their immediate relatives.

Key Changes to Hardship Waiver Requirements

The Obama Administration adopted a rule that changed the process of obtaining a hardship waiver in this type of situation. The new rule took effect on March 4, 2013. It allows certain illegal aliens to apply for provisional unlawful presence waivers while remaining in the country. The applicant must:

  • Be an immediate relative of a U.S. citizen;
  • Be inadmissible only because of unlawful presence; and
  • Show the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse, child, or parent.

The most critical part of this test is demonstrating extreme hardship, which usually means more hardship than the applicant’s family member would usually be expected to experience based upon the absence of the noncitizen. Ordinary emotional impact and vague financial difficulty may not qualify. The rule says that the USCIS will look “at the totality of the applicant's circumstances and any supporting evidence" to determine if extreme hardship exists. The applicant must be careful to demonstrate specific hardships to the immediate relative who is already a U.S. citizen, rather than demonstrate the hardship he personally will experience.

The process created by the new waiver does not alter the immigrant visa process. Illegal aliens must still attend an interview with the consulate in his or her country of origin. But rather than be separated from his or her family for several years, the waiver permits shorter separations, including separations as short as a week in some cases. Those who have had hardship waivers denied previously are eligible to apply for the new hardship waiver.

If the waiver is approved, it only takes effect after:

  • The interview for an immigrant visa; and
  • A consular officer determines an applicant is eligible for an immigrant visa.

In addition to the type of waiver described above, there are also waivers for deportation, waivers for specific types of physical or mental disorders, waivers for certain kinds of misrepresentations, and others.

A knowledgeable immigration attorney can help you determine whether you qualify for a hardship waiver. We recommend that you contact the experienced Maryland immigration lawyers at the office of Anthony A. Fatemi, LLC so that we can help you navigate the complex immigration laws of the United States. Call us at (301) 519-2801, or submit our online contact form today.

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