I-601 “Extreme Hardship” Waiver Approved after Comprehensive Request for Evidence (RFE) Response

I-601 "Extreme Hardship" Waiver Approved after Comprehensive Request for Evidence (RFE) Response

I was contacted by a couple after their I-601 “extreme hardship” waiver application (prepared and filed by another law firm) was deemed insufficient for approval of their I-601 waiver.  The waiver applicant from Turkey previously overstayed in the United States by more than one year due to a misunderstanding of how long his authorized period of stay was granted for.  He later departed the U.S. due to a family emergency.  While abroad, he married his U.S. citizen fiancee and attempted to return to the United States, whereupon he was informed that he was subject to the 10 year unlawful presence bar.

The couple retained our law firm to prepare a thorough response to the Request for Evidence (RFE) issued by the USCIS.  We prepared a comprehensive 29 page response to the Request for Evidence (RFE), addressing each of the issues raised by the USCIS and providing supporting documentation to objectively prove every important assertion made in our response.

The Request for Evidence issued by the USCIS is instructive to examine in more detail as it shows the level of detail and preparation needed to obtain approval of an I-601 waiver.  Relevant portions of the RFE is provided below:

You have been found inadmissible to the United States under Section 212(a)(9)(8) of the Immigration and Nationality Act (INA) because you had previously been unlawfully present in the United States in excess of either 180 days, or for one year or more.

To be eligible for a waiver under section 212(a)(9)(B)(v) of the INA, you must show that:

  • You have a U.S. citizen or lawful permanent resident spouse or parent or a U.S. citizen fiance(e) who petitioned for your K visa who would experience extreme hardship if you were denied admission, and
  • Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

Your application does not include sufficient evidence that your qualifying relative spouse would suffer extreme hardship if you are refused admission to the United States.

Although it appears your qualifying relative spouse is experiencing some type of hardship; we are unable to determine whether or not the hardship rises to the level of extreme hardship. An affidavit is not enough to establish extreme hardship because it lacks sufficient detail, is general in nature, and is absent accompanying documentation. The evidence should explain how the hardship is greater the common results of family separation due to a visa refusal.

An affidavit was not submitted by your qualifying relative spouse.  Therefore we do not have enough evidence to establish extreme hardship to your qualifying relative spouse.  Provide evidence to explain why it would be an “extreme hardship” for your qualifying relative spouse to be absent your financial support as well as evidence of any emotional problems you are experiencing that would rise to the level of an “extreme hardship” if you were not allowed to relocate to the U.S.  ln his affidavit he says that you will struggle on several levels; however, you did not submit any proof of financial obligations, a breakdown of your income and expenses and more detail of the hardship.

Absent from the record is an explanation of how traveling to visit you would rise to the level of an  “extreme hardship”.

The evidence does not indicate that your qualifying relative spouse is facing any one hardship that is extreme (in and of itself). It also does not establish that there are sufficient hardships (cumulatively) that would rise to the level of extreme in the aggregate. (If your spouse is facing additional hardships, please submit evidence of them.)

Note: Extreme Hardship is required for the approval of Form 1-601, not just hardship. Extreme hardship is a hardship that is unusual or beyond that which would normally be expected upon removal or exclusion.

Factors USCIS considers when determining extreme hardship include but are not limited to:

  • Health – Ongoing or specialized treatment required for a physical or mental condition; availability and quality of such treatment in the country to which removed; anticipated duration of the treatment; chronic vs. acute vs. long or short-term.
  • Financial Considerations – Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (elderly and sick parents).
  • Education – Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time or grade; availability of special requirements, such as training programs or internships in specific fields.
  • Personal Considerations – Close relatives in the United States and country of removal; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
  • Special Factors – Cultural, language, religious. and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures (official or unofficial) for support, guidance, or protection.

1) Please submit a statement explaining in detail the hardships your qualifying relative would experience if you are denied admission to the United States. The statement should explain how the hardship is greater than the common results of family separation due to a visa refusal.

2) Please submit evidence to support the statements made. Such evidence may include but is not limited to:

  • Affidavits from the qualifying relative or other individuals with personal knowledge of the claimed hardships
  • Expert opinions
  • Evidence of employment or business ties such as payroll records or tax statements
  • Evidence of monthly expenditures such as mortgage, rental agreement, bills and invoices. etc.
  • Other financial records supporting any claimed financial hardships
  • Medical documentation and/or evaluations by medical professionals supporting any claimed medical hardships
  • Records of membership in community organizations, volunteer confirmation, and evidence of cultural affiliations
  • Birth/marriage/adoption certificates supporting any claimed family ties
  • Country condition reports
  • Any other evidence you believe supports the claimed hardships

Please note that USCIS will only consider hardships that affect the qualifying relative(s) upon which you are basing your eligibility. If you describe hardship to yourself or another individual, you must also explain how those factors affect the qualifying relative(s).

Your application does not include sufficient evidence that a favorable exercise of discretion is warranted in your case.

3) Please submit a statement explaining the favorable factors of your case and why you believe the favorable factors outweigh unfavorable factors in your case (including the initial inadmissibility finding).

4) Please submit any evidence to support your statement.

Favorable factors may include, but are not limited to:

  • Family ties in the United States and the closeness of the underlying relationships
  • Unusual hardship to yourself or to U.S. citizen or lawful permanent resident relatives and employers
  • Evidence of reformation and rehabilitation
  • Length of lawful residence in the United States and status held during that residence (particularly where the applicant began his or her residency at a young age)
  • Evidence of respect for law and order, good moral character, and intent to hold family responsibilities (such as affidavits from family, friends, and responsible community representatives)
  • Considerable passage of time since the activities occurred which were the basis of the inadmissibility finding
  • The absence of significant undesirable or negative factors

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id . at 566.

The Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of O-J-O-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882). The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Id.

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships. See, e.g., Matter of Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch regarding hardship faced by qualifying relatives on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which they would relocate).

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

Therefore, the AAO considers the totality of the circumstances in determining whether denial of admission would result in extreme hardship to a qualifying relative.

As part of our response to the USCIS-issued Request for Evidence (RFE), we demonstrated that the US citizen suffers from both physical and psychiatric disorders that significantly impairs her daily functioning at home, work, and in the community.  We also highlighted the fact that she has suffered from psychiatric disorder since childhood, with a long history of anxiety, depression, and substance abuse, which also runs in her family.

We showed how the U.S. citizen is at serious risk of lapsing back into substance abuse without the daily physical, emotional, and psychological support provided by her husband.  We also analyzed her household income, expenses, and debt, and showed the financial disaster she would suffer should she be forced to relocate to her husband’s home country of Turkey; or alternatively, remain in the U.S. without her spouse and be subject to the inevitable consequences of her worsening psychological and physical health without his daily support.  We also presented a detailed country conditions report of Turkey, demonstrating how the specific circumstances of our client’s health, financial status, and background would be impacted by her possible re-location to Turkey.

As a result of our efforts in responding to a very difficult Request for Evidence (RFE), this I-601 waiver was approved and the couple now reside lawfully inside the U.S.