Hardship Waivers

Waivers of Inadmissibility – Hardship Waivers

Applying for a Hardship Waiver is a means by which an individual facing deportation is able to remain in the United States. Teplen Law Group has won many landmark cases that have resulted in the cancellation of removal proceedings, permitting the individual to remain in the United States.

According to US immigration law, certain circumstances make an individual inadmissible for entry into the US. These circumstances are most often because of previous criminal history or because an individual accrued an unlawful or illegal presence. However, if they are able to demonstrate that their deportation would inflict a hardship on a US citizen or legal permanent resident, this inadmissibility may be waived, and they are granted a hardship waiver.

Is a Hardship Waiver Available For Me?

In these types of cases, it is absolutely essential to work with an experienced and competent attorney, who is well-versed in the preparation of hardship waivers and who is able to determine whether an individual qualifies for this kind of deportation relief.

Individuals who have been in the US illegally are subject to a 10 year bar on re-entry to the United States. However, most immigration law requires that those who entered the country illegally undergo visa processing in their home countries, at which point the 10 year bar is often triggered.

Generally speaking the individual may obtain a waiver of the 10 year bar, if he/she can demonstrate that a US citizen or lawful permanent resident (LPR) qualifying relative would suffer extreme hardship should the individual not be granted a waiver of inadmissibility.

Certain criminal grounds of inadmissibility may also be waived, including crimes involving moral turpitude, a single offence for simple possession of marijuana under 30 grams, multiple criminal convictions, some serious criminal offences and prostitution and commercial vice.

The essential element of all waiver considerations is whether inadmissibility to the United States would result in extreme hardship to a US citizen or LPR qualifying relative.  A knowledgeable immigration attorney will be able to determine if the criteria of a particular case makes an individual eligible for a waiver.

Who is a Qualifying Relative?

The qualifying relative, for purposes of hardship, differs depending on the grounds of inadmissibility being waived. Individuals subject to a bar of admission due to unlawful presence can have the bar waived if they can demonstrate extreme hardship to a US citizen or LPR spouse or parent.

Children are not qualifying relatives for purposes of unlawful presence waivers.

Children are, however, qualifying relatives for purposes of waivers for criminal grounds of inadmissibility. Therefore, if the individual can demonstrate extreme hardship to a US citizen or LPR child, spouse or parent, he/she can possibly obtain a waiver of inadmissibility.

However while children are not qualifying relatives for purposes of unlawful presence or fraud waivers, it still should be argued that hardship to the children is imputed to the qualifying relative, (usually the spouse), because what the child suffers, adds to the qualifying relative’s extreme hardship. For example, if the child has a  medical issue, the child’s hardship causes added emotional strain on the qualifying relative including medical bills, time off from work, and psychological distress.

What is “Extreme Hardship?”

US immigration law does not define extreme hardship. United States Customs and Immigration (USCIS) sets forth a few factors considered as “hardship,” including health, financial consideration, educational considerations and personal considerations, but it does not actually define “extreme hardship.

Generally speaking, USCIS adheres to the opinion that most individuals, who are deported, will suffer some degree of economic hardship. Thus, using this factor alone will never be sufficient as a showing of extreme hardship. Conditions in an individual’s home country are relevant in determining hardship, such as adverse economic and political situations, but they must rise to an extreme level. High rates of crime in the home country may also serve as one factor in determining extreme hardship. To be stronger, the hardship should also be demonstrated or shown in the aggregate whenever possible.

The strongest arguments for hardship waivers are made using a combination of different, comprehensive factors. For a hardship waiver application to have the best chance of success, factors such as advanced age, severe illness, family ties, and possible persecution or harm etc. when combined with the economic component, would appear to offer the strongest argument.

New Stateside Provisional Waiver Procedures

Provisional hardship waivers were introduced under rulemaking proposed by USCIS on March 30, 2012. (The rulemaking is not final as yet.)

Although the hardship waiver application discussed here is currently available, an individual must still depart the US and undergo visa processing in their home country. If granted a provisional waiver here in the United States, the individual must still return to their home country but time spent away from their family would be considerably lower. Most importantly, an individual would know in advance before departing the US, whether the waiver of inadmissibility was granted, significantly improving the chances of being granted a new visa (assuming that no other grounds of inadmissibility exist.)

It is important to note that this new procedure when finally implemented does not change the existing standards for unlawful presence and extreme hardship.

To find out if you could potentially qualify for a Hardship Waiver please call our offices in New York City at 212-401-4040 or toll-free at 800-244-5260. You can also contact us online.


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