I-601 and I-601A Hardship Waivers

Extreme hardship does not have any useful definition under immigration law in the U.S. Providing proof that your qualifying relative would definitely suffer extreme hardship is a key requirement for both I-601A and I-601 waivers. A I-601 waiver is often used by a U.S. citizen or permanent resident who has a recognized relationship with an undocumented immigrant who could get deported. 

I-601A waivers affect immigrants who have been unlawfully in the U.S. for a period that exceeds 180 days and who would normally be asked to leave the country for three or ten years in order to change immigration status. The I-601A waiver offers a way for an immigrant in this situation to stay with his or her family in the U.S. while obtaining legal residency. Certain close relatives of U.S. citizens can use this form to ask for a provisional waiver for unlawful presence under certain sections of the Immigration and Nationality Act before leaving the country to visit a U.S. embassy or consulate for an interview for an immigrant visa. The big difference is that with an I-601A, the immigrant knows before he leaves whether he will be allowed back in, assuming no other bars to entry apply.

The applicant is required to produce evidence that would indicate any forced return to his or her original country with any immediate family, which could be parents, spouse and children, that extreme hardship would result. As the term “extreme hardship” is not well defined in the Immigration and Nationality Act case law, previous applicants’ outcomes, as determined by the USCIS decisions, give an idea of what constitutes extreme hardship such as:

• health concerns, including mental health of family members left behind in the US who will be disadvantaged if a family member was forced out of the country;
  
  
• educational issues related to children especially if a child needs special help which would not be possible if returned to his or hers own country;
  
  
• family ties left behind in the U.S. would include most of the person’s family and would mean the family would be broken up;
  
  
• economic disadvantage to the family left behind in the U.S. if the relative told to leave is a breadwinner;
  
  
• the present economic and political conditions in the country where the alien would be repatriated;
  
  
• family ties in the country where the alien would be repatriated;
  
  
• the extent of integration into U.S. society.
  
  

When it comes to hearing immigration waiver cases related to I-601 and I-601A, a USCIS official or immigration judge makes the final decision on evaluating the term extreme hardship. As there are no hard and fast criteria, each case is judged on its individual merits.

To gain approval for a waiver, the family circumstances have to be clearly outlined and any negative cumulative aspects of extreme hardship should be emphasized. What has been discovered is that extreme hardship is not assessed on solely economic concerns.

Concentrate on the likely impact of extreme hardship of your qualifying relative

By statute related to the I-601 or I-601A waiver, persuasive evidence is necessary indicating that the qualifying relative of a U.S. citizen or legal permanent resident would suffer if deported. The effect on the relatives left behind in the U.S. is of importance too - but it is a mistake to focus only on the hardship to the foreign national. Your waiver will be denied.

There are two questions you should consider as follows:

1. If you were denied a I-601 or I-601A waiver and you were sent back to your country of origin, how would this impact your qualifying relative if he or she had to remain in the U.S. without you?
   
   
2. What would be the extent of the hardship suffered by a qualifying family member if the I-601 waiver was denied and he or she had to depart from the United States to reside with you overseas in the country you were made to go to?
   
   

Choose carefully, and take your time collecting evidence. Yes, the officers really do look through everything, so make sure it counts and is persuasive.

If you have a drunk driving (DUI or DWI) conviction, you still may be able to win an I-601 or I-601A approval.


Read more about family-based immigration.

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