An I-601A waiver affects those immigrants who would, due to being unlawfully present in the U.S. for more than 180 days, normally be required to move out of the United States for three or ten years in order to adjust his/her immigration status.The I-601A waiver provides a way for the immigrant to remain with his/her family in the United States while gaining legal residency.
In order to prevail on an I-601A waiver application, the applicant must show that if he/she were forced to return to his/her country of origin and if the applicant’s immediate family (spouse, parents, children) were to move with the immigrant to his/her country of origin, that his/her U.S. citizen immediate family members would suffer “extreme hardship.”The term “extreme hardship” is not specifically defined in the Immigration and Nationality Act and is interpreted with a significant degree of subjectivity.However, case law and past experiences of clients have given us a good idea of what factors the USCIS considers in deciding whether “extreme hardship” exists.These factors include:
- Physical health concerns of the U.S. citizen’s immediate family members (e.g. the immigrant is needed in the U.S. to care for her U.S. citizen husband’s severe diabetes)
- Mental health concerns of the U.S. citizen’s immediate family members (e.g. the immigrant is needed in the U.S. to care for her U.S. citizen husband’s depression and anxiety)
- Educational issues pertaining to the U.S. citizen children (e.g. the U.S. citizen child is in special education classes and would suffer if moved to another country)
- Family ties in the U.S. (e.g. the great majority of the immigrant’s family are legally present in the U.S.)
- Economic concerns (e.g. the family would not be able to support themselves in the immigrant’s country of origin; e.g. the U.S. citizen spouse would not be able to support him/herself in the U.S. without the immigrant spouse)
- Length of presence in the U.S.
- Special assistance/contribution to the U.S. community
Although “extreme hardship” is not specifically defined by law, the USCIS and case law has made clear that family separation and financial difficulty alone are insufficient to establish extreme hardship. However, those arguments are commonly included because applications are evaluated based on all the relevant factors taken together.