Tips for Arguing Financial Hardship in I-601 “Extreme Hardship” Waiver and I-601A Provisional Waiver Cases

Tips for Arguing Financial Hardship in I-601A Waiver Cases

The AILA National Benefits Center Committee recently provided tips on  establishing that a U.S. citizen spouse would suffer financial hardship in an I-601A, provisional unlawful presence waiver case.  It should be noted that these tips also generally apply when arguing financial hardship in I-601 “extreme hardship” waiver cases.

Demonstrating that a U.S. citizen (USC) spouse would suffer financial hardship can help support a provisional unlawful presence waiver application (Form I-601A).  The applicant must show that the USC spouse will not have the income to support him/herself or close family members as a result of the applicant’s departure from the U.S. or if the USC were to accompany the applicant to his or her home country.

It is critical that the applicant provide clear documentary evidence to substantiate a claim of extreme financial hardship.

Below are recommendations on how to present a claim of financial hardship:

  • Compare monthly income against expenses. Do not rely on USCIS to sort through the couple’s income and expenses for you. Itemize the monthly expenses and all sources of income and explain how the USC would not be able to cover all fixed expenses without the support of the applicant. Be sure to include supporting documentation, such as billing/credit card statements, receipts, paystubs, and tax returns.
  • Do not rely on recently acquired large expenses that could have been avoided. A reviewing officer may not be persuaded by the potential of a US Citizen (“USC”) losing their home if it was purchased recently and relied partially or wholly on the applicant’s U.S.-based income.
  • Show additional expenses related to raising children without the applicant’s care. It may not be sufficient to simply state that the applicant’s absence would result in a burden to the USC because the USC would be solely responsible for childcare. Explain if and why alternatives such as a nanny, daycare, or after school care are either not available or are insufficient. Document why the USC cannot afford the expense of childcare alternatives and address why other family members cannot help with childcare. Also address why the children cannot go with the applicant to the foreign country if he or she is their primary caretaker. This is number crunching at its finest; you must closely weigh all sides to the financial argument.
  • Do not rely on expenses that are not considered “basic necessities.” USCIS officers may not be convinced if the household expenses include items such as cable television; dining out, hotels, vacations, private school tuition, high cell phone bills, electronics, gym memberships, etc.
  • Explain the additional financial burden to the USC to support two households. It may be helpful to show the extra financial burden that would result from helping to maintain a household for the immigrant abroad as well as a household for the family in the U.S. Document the typical expenses the applicant would have in the foreign country (rent, utilities, transportation, etc.) and explain why family members in the home country would not be able to house the applicant. Also explain why the applicant would be unable to support him/herself, for example a lack of employment opportunities, lack of skills or education, etc.
  • Address why the USC would be unable to find work abroad. Though the USC spouse will of course have to give up his or her job if forced to relocate to the applicant’s home country, it might not be viewed as “extreme” hardship if the USC could find work in another field. Discuss the challenges the USC may face finding work abroad given language barriers, physical limitations, and financial needs and provide evidence to support your claim. For example, if the USC is a mechanical engineer who suffers from severe back problems, an argument could be made that she will have difficulty finding work because she does not have the language skills to use the necessary technical words and is unable to perform physical labor because of her back problems. This would need to be supported by medical records and recent job postings in the foreign country that describe the necessary skills for the position.
  • Review all receipts and financial records before filing. Carefully analyze all supporting documentation prior to filing. It is very difficult to respond to a Request for Evidence that points to documents that undermine your arguments.

I provide all of my I-601, I-601A, I-212, and 212(d)(3) waiver clients with extremely detailed Waiver Worksheets customized to their particular case type.  The Waiver Worksheets contain a comprehensive list of questions for my clients to answer.  It also contains a full checklist of supporting documents I recommend they gather to be used in support of their waiver application.

This process helps me identify all of the relevant hardship and persuasive factors to be discussed in their waiver, including a mathematical calculation of financial hardships and the impact separation (or relocation) caused by inadmissibility would have upon the qualifying relative and his/her immediate family.

As the above tips show, it is crucial that each and every hardship be analyzed in minute detail and that the impact on extreme hardship discussed in an organized, methodical, and comprehensive manner.