Smart Immigration Lawyer

601 Waiver Legal News: AAO Overturns USCIS Decision on 601 Waiver

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601 Waiver

I personally try to review every 601, 601A, and 212 waiver case that is made available, as they provide a valuable insight into the discretionary standards applied in deciding immigration waiver applications.

This case is instructive in the persuasive importance of medical hardship when waiver cases are adjudicated.  It involves a citizen of the Philippines who was found inadmissible to the U.S. under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act. The applicant is the spouse of a U.S. citizen who previously entered the United States using a fraudulent passport.

Section 212(a)(6)(C) of the Act provides, in pertinent part: (i) Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

The applicant applied for a 601 waiver pursuant to Section 212(i) of the INA which provides: (1) The [Secretary] may, in the discretion of the [Secretary], waive the application of clause (i) of subsection (a)(6)(C) in the case of an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.

The USCIS Field Director concluded that the applicant had failed to demonstrate extreme hardship to her qualifying spouse and denied the application.  The AAO overturned the decision on appeal and granted the waiver.

The AAO stated that 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).

The AAO also cited Matter of Cervantes-Gonzalez, in which the Board of Immigration Appeals (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 U.S. 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 following factors in this case were deemed persuasive in granting the 601 waiver:

  • The applicant suffered from reproductive health issues since 2000
  • The applicant has resided for a long period of time in the U.S. and has a husband and family members who are U.S. citizens
  • A letter from her doctor and medical records showed that she has been attempting to have a child with her U.S. citizen husband through in vitro fertilization since 2006.
  • The letter from her doctor stated that she must avoid stress and remain in the U.S. for fertility treatments if she wishes to ever have a child in the future.
  • She has undergone surgeries due to her reproductive health issue, and takes medication for depression and anxiety.
  • Bank statements, mortgage payments, and utility bills showed that the U.S. citizen husband could not afford fertility treatments for his wife if she were forced to live in the Philippines.
  • They demonstrated that the applicant moving to the Philippines would prevent the couple from having the child they so desperately wanted, which would in turn cause tremendous emotional stress on the U.S. citizen husband
  • They demonstrated that the U.S. citizen husband could not afford to make mortgage payments on their family home or afford his other monthly payments without his wife’s financial contributions.
  • The U.S. citizen husband has significant family ties to the United States, including parents, sisters, nieces, aunts, and uncles.
  • The U.S. citizen husband has enjoyed long-term employment in the U.S.
  • The U.S. citizen husband provided medical documentation showing a severe allergic reaction he suffered during his last visit to the Philippines due to pollution

Learn more: I-601 Waiver (Extreme Hardship)

I-601A Provisional Waiver

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Update (October 2026): When this post was written, the I-601A was available only to immediate relatives of U.S. citizens. Since 2016, it has been open to all statutorily eligible immigrant visa applicants, including family-based, employment-based and Diversity Visa applicants, who can show extreme hardship to a U.S. citizen or permanent resident spouse or parent. Learn more on our I-601A Provisional Waiver page.

I601A Waiver

None of my clients have yet been denied on the I-601A Provisional Waiver Applications that I prepared and filed on their behalf. However, the current trend based on I-601A provisional waiver applications filed by others nationally appears to be that the USCIS is denying I-601A waivers when it has “reason to believe” that the applicant may be found inadmissible by a Department of State or consular officer at the time of his/her immigrant visa interview for a reason other than unlawful presence.

The American Immigration Lawyers Association, of which I am a member, is currently working with the USCIS in an attempt to have I-601A provisional waivers adjudicated in a more flexible and meaningful manner.

Unfortunately, the USCIS seems to be denying I-601A provisional waivers in two common situations: when applicants have had encounters with criminal law enforcement authorities in the past that do NOT constitute grounds of inadmissibility under INA Section 212; and when applicants allegedly gave false names, biographic data, or other information to the INS or DHS authorities, where such false information was NOT given in an effort to procure a visa, other documentation, or admission in violation of INA Section 212(a)(6)(C).

My current recommendation as of 08/10/2013 is to be absolutely sure NONE of the situations described below apply to you before you submit your I-601A provisional waiver application.  This means you never had any encounter whatsoever with criminal law enforcement authorities and never submitted any type of false information to the INS or DHS in the past.  Should the USCIS adopt the more flexible and meaningful approach advocated by AILA, this blog and my clients will be updated.

Denials Based on Criminal Acts That Do Not Form the Basis for an Inadmissibility Determination

Numerous reports indicate that USCIS is relying on the “reason to believe” standard to deny applications involving any prior criminal issue, no matter how minor or how long ago the incident took place.  AILA has also received reports of denials where the only offense involved a traffic citation or traffic violation.

Denials Based on Alleged Misrepresentations That Do Not Form the Basis for an Inadmissibility Determination

AILA has also received a number of examples of I-601A waiver applications that were denied based on an allegation that the applicant provided a false name or date of birth when apprehended at the border for attempting to enter without inspection.  Though some of these denials contain limited information specific to the alleged incident (year, border station), most of them are formulaic, and none acknowledge evidence that might have been submitted to explain why the incident does not render the person inadmissible.

USCIS Needlessly Denies Provisional Waiver Applications Where a Meaningful Review of the Evidence Would Reveal No Inadmissibility Concerns Other Than Unlawful Presence

Driving Under the Influence (DUI)

It is well-established that a simple DUI, without more, is not a crime involving moral turpitude and therefore, does not render a person inadmissible. See Matter of Lopez-Meza, 22 I&N Dec. 1188, 1194 (BIA 1999); Murillo-Salmeron v. INS, 327 F.3d 898 (9th Cir. 2003). This position has been acknowledged and cited by the USCIS Administrative Appeals Office in several non-precedent decisions. Moreover, a conviction for an aggravated DUI (based on multiple simple DUIs) under a statute that does not require a culpable mental state is also not a crime involving moral turpitude. Matter of Torres Varela, 23 I&N Dec. 78, 82-86 (BIA 2001).

AILA has received numerous examples of provisional waiver denials where the only incident from the applicant’s past involved a simple DUI conviction.  In many of these cases, the applicant acknowledged the incident on the I-601A form and submitted the record of conviction which revealed no aggravating factors. In at least one case, the conviction was ultimately dismissed and in most cases, the DUI occurred more than five years ago.  However, despite well-documented efforts demonstrating that the conviction would not render the applicant inadmissible, these provisional waiver applications were denied.

The Petty Offense Exception

AILA has also received numerous denials involving minor offenses that would clearly fall under the “petty offense exception” for a single crime involving moral turpitude.  An offense falls under the petty offense exception if (1) the crime was committed when the alien was under age 18, and the crime was committed (and the alien was released from confinement) more than five years before the date of the application; or (2) the maximum penalty possible for the crime did not exceed one year of imprisonment and if convicted, the alien was not sentenced to more than 6 months in prison.

Traffic Violations

Question 29 on Form I-601A seems to indicate that traffic violations are not considered when evaluating eligibility for a provisional waiver.  Yet, AILA has received troubling reports of cases that have been denied where the only offense involved appears to be one or more traffic violations.  Even if such violations could be considered relevant, they will almost always qualify for the petty offense exception.

Allegations of Providing a False Name or Date of Birth When Apprehended After Attempting to Enter without Inspection

AILA has also received many reports of denials based on a “reason to believe” the applicant is inadmissible under INA §212(a)(6)(C) for allegedly providing a false name or date of birth when the applicant was apprehended at the border for attempting to enter without inspection.  While providing a false name in conjunction with the formal inspection and admission process may certainly raise concerns regarding admissibility (for example, presenting a false passport at a port of entry), in most circumstances, simply providing a false name after an arrest for attempting to enter without inspection does not support a finding of inadmissibility under INA §212(a)(6)(C)(i) because it is not made in an attempt to “procure … a visa, other documentation, or admission into the United States” or other benefit under the INA.  Moreover, the Department of State takes the approach that misrepresentations regarding identity are material only if the alien is “inadmissible on the true facts or the misrepresentation tends to cut off a relevant line of inquiry which might have led to a proper finding of ineligibility.”  Providing a false name or date of birth after arrest (in a “catch and release” or “voluntary return” situation) when it has already been determined that the individual is inadmissible is not, by definition “material.”

Learn more: I-601A Provisional Waiver

I-601 Extreme Hardship Waiver Approved

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I601 Waiver

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a Mexican client who was subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B).  She was also subject to the fraud/misrepresentation ground of inadmissibility under INA Section 212(a)(6)(C)(i) due to the use of a false document to enter the United States.

I prepared and filed three separate I-130 immediate relative petitions and ultimately received approval for three immigrant visas: for the Mexican wife who required the I-601 waiver, and her two Mexican children who did not require unlawful presence waivers since they were both under the age of 18.  Any period of time spent unlawfully in the U.S. while under the age of 18 does not count toward calculating unlawful presence under INA Section 212(a)(9)(B) [9 FAM 40.92 N 4.1].

An I-601 Application for Waiver of Grounds of Inadmissibility requires a showing that the applicant’s U.S. citizen spouse or parent would suffer “extreme hardship” if the applicant is refused admission into the United States.  A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

”Extreme hardship” has a special meaning under U.S. immigration law.  The factors considered relevant in determining extreme hardship include:

  • Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or 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 caring for family members (i.e., elderly and infirm 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 in grade; availability of special requirements, such as training programs or internships in specific fields.
  • Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
  • Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
  • Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

Spouses must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.

In support of her I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to define “extreme hardship.”  I also discussed and presented evidence of her rehabilitation, good moral character, and overall dedication as a wife and mother who was integral to the daily care of her ill U.S. citizen husband (and his elderly mother).  Since this was her second marriage to a U.S. citizen, I presented compelling evidence that both marriages were genuine when entered into as well as the reasons why her previous marriage ended in divorce.  A table of exhibits also listed a variety of evidence in support of a showing of “extreme hardship” including:

  • Letter and medical records from the physician of the U.S. citizen husband’s mother, confirming her diabetes, hip surgery, frequent infections, low blood sugar, and overall precarious health
  • Affidavits attesting to the U.S. citizen husband’s daily care of his elderly mother with the assistance of his Mexican wife, including hand-feeding her meals on a regular basis
  • U.S. citizen husband being evaluated as 100% disabled for post-traumatic stress disorder by the Dept. of Veterans Affairs resulting from his tours of duty during the Vietnam War
  • Letter from a psychiatrist confirming long-term treatment of the U.S. citizen husband for post-traumatic stress disorder
  •  War decorations awarded to the U.S. citizen husband during his service during the Vietnam War

As a result of our efforts, our client was approved for the I-601 and subsequently, received her lawful permanent residence together with her two children.

Learn more: I-601 Waiver (Extreme Hardship)

Past results do not guarantee, warrant, or predict the outcome of any future legal matter.

I-601 Waiver Approved by I-601 Attorney Michael Cho

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I601 Waiver

Our office received approval of the I-601 waiver on behalf of the Brazilian wife of a U.S. citizen.   She had previously entered the U.S. as the K-1 fiancee of her U.S. citizen husband.  However, the couple attempted to handle her adjustment of status themselves, leading  to mistakes in the filing of the application.  She then departed the U.S. after exceeding her authorized period of stay by over one year.  Our office was contacted after she was deemed inadmissible to the U.S. based on Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, for having been unlawfully present in the United States for more than one year and seeking readmission within 10 years of her last departure from the United States.

INA Section 212(a)(9)(B)(v) provides that a waiver, under INA Section 212(a)(9)(B)(i)(II), is applicable solely where the applicant establishes extreme hardship to her U.S. citizen or lawfully resident spouse or parent.  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, 22 I&N Dec. 560, 565-66 (BIA 1999), the Board of Immigration Appeals (BIA) provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative.  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.

The Board of Immigration Appeals has also made it clear that although hardships may not be extreme when considered abstractly or individually,  “relevant 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.”

The Board of Immigration Appeals has also held that hardship factors such as family separation, economic disadvantage, cultural readjustment, et cetera, differ 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).

As an example, the Board of Immigration Appeals has found family separation, a common result of inadmissibility or removal, can also be the most important single hardship factor in considering hardship in the aggregate. See Salcido-Salcido, 138 F.3d at 1293 (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983; but see Matter of Ngai, 19 I&N Dec. at 247 (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).

In support of my client’s I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to define “extreme hardship.”  This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief.

The positive factors in this case included:

  • The U.S. citizen husband suffered from high blood pressure, which was shown to be a hereditary disease influenced by lifestyle factors.  He was also diagnosed with Clinical Depression, with a rapidly deteriorating condition as a result of a miscarriage suffered by his wife during the immigration process.  
  • The U.S. citizen husband’s mother recently suffered two heart attacks and was now dependent on her son to take care of her, hand-feed her meals, and provide for her financially.  He could not move to Brazil without abandoning his U.S. citizen mother and putting her health at risk.
  • The U.S. citizen husband received medical care for his high blood pressure and clinical depression through the insurance provided by his U.S. employer.  We demonstrated that his work performance had suffered noticeably due to the stress and emotional toll caused by the separation from his wife.

As a result of the I-601 waiver prepared and submitted by our office, she has received her lawful permanent resident status and the couple is now re-united inside the United States.

Learn more: I-601 Waiver (Extreme Hardship)

Past results do not guarantee, warrant, or predict the outcome of any future legal matter.

I-601 Waiver Approval

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I601 Waiver Approval

Our office received approval of an I-601 waiver filed on behalf of a Mexican wife and her U.S. citizen husband.  Our client entered the United States without inspection over 12 years ago with her family and has lived in the U.S. since then.   She was deemed inadmissible to the U.S. based on Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, for having been unlawfully present in the United States for more than one year and seeking readmission within 10 years of her last departure from the United States.

This case was decided before the current I-601A provisional waiver came into effect.  As a result, we first obtained approval of the I-130 Petition for Alien Relative.  Our client then traveled to the U.S. consulate in Ciudad Juarez to attend her consular interview where she submitted the I-601 waiver package I prepared on her behalf.  In support of her I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to define “extreme hardship.”  This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief.

INA Section 212(a)(9)(B)(v) provides that a waiver, under INA Section 212(a)(9)(B)(i)(II), is applicable solely where the applicant establishes extreme hardship to her U.S. citizen or lawfully resident spouse or parent.  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, 22 I&N Dec. 560, 565-66 (BIA 1999), the Board of Immigration Appeals (BIA) provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative.  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.

This case was particularly challenging because our client and her husband had no children.  The U.S. citizen husband also had no medical problems of note, and his U.S. citizen parents were in relatively good health.  However, the U.S. citizen husband was in the U.S. Navy serving on board a guided missile cruiser.  Among a variety of extreme hardships discussed, we showed that the extreme psychological hardship he would suffer upon separation from his wife would seriously impact his ability to perform his critical military duties.  Alternatively, moving to Mexico to be with his wife would not be possible since that would be considered desertion and lead to a court marshal.  This case was approved and our client now resides legally inside the United States as a lawful permanent resident.

Learn more: I-601 Waiver (Extreme Hardship)

Past results do not guarantee, warrant, or predict the outcome of any future legal matter.

I-601 Waiver Approved by Waiver Attorney Michael Cho

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I-601 Waiver Approved

We received approval of a client’s immigrant visa petition and I-601 Application for Waiver of Grounds of Inadmissibility.  Our office  prepared and filed the I-130 petition, secured its approval, then put together a comprehensive I-601 waiver package that was submitted to the USCIS for adjudication.  The I-601 waiver was approved and our client obtained his immigrant visa at the U.S. consulate in Ciudad Juarez before returning to the U.S. as a lawful permanent resident.

Our client was a native of Mexico who entered the U.S. without inspection over 11 years ago.  He subsequently married a U.S. citizen and they had a daughter together.  He required the I-601 Application of Waiver of Grounds of Inadmissibility due to his unlawful presence of over 1 year inside the United States, which made him subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B).

An I-601 Application for Waiver of Grounds of Inadmissibility requires a showing that the applicant’s U.S. citizen spouse or parent would suffer “extreme hardship” if the applicant is refused admission into the United States.  “Extreme hardship” has a special meaning under U.S. immigration law.  The factors considered relevant in determining extreme hardship include:

  • Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or 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 caring for family members (i.e., elderly and infirm 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 in grade; availability of special requirements, such as training programs or internships in specific fields.
  • Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
  • Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
  • Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

Spouses must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.

In support of his I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of his situation met the legal standards used to define “extreme hardship.”  This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief.

Factors in the favor of our client were the following:

  • Our client had no criminal record and was a law-abiding individual his entire life except for the immigration mistake he made to enter and live illegally inside the U.S.
  • His U.S. citizen wife had suffered from severe kidney and bladder infections her entire life.  We obtained a letter from her physician confirming her chronic condition and recommending regular check-ups and treatment inside the United States
  • Their daughter had been diagnosed with jaundice.  We obtained a letter from her physician confirming her illness and recommending regular check-ups inside the United States.
  • We provided a report of the Mexican health system and demonstrated that the U.S. citizen wife and daughter would not be able to receive reliable and adequate medical care for their conditions in rural Mexico where the Mexican husband was from.
  • The U.S. citizen wife and child received medical care in the United States through health insurance provided by the Mexican husband’s employment in the United States.  Without his presence and employment in the U.S., they would lose their medical coverage.  On the other hand, moving to Mexico would also mean no longer being able to obtain medical treatments since she could not afford private health insurance given their pre-existing conditions.
  • Our client was a devoted husband and father who took care of his U.S. citizen wife and child on a daily basis and worked hard to pay for their rent, food, and other living expenses.  They would suffer financial hardship without his presence given their health problems and the U.S. citizen wife serving as the primary care-giver for their young daughter.
  • We submitted a psychological report which diagnosed the U.S. citizen wife with Clinical Anxiety Disorder.  We showed the interrelationship between psychological and physical disease, and presented evidence to show that her condition would worsen without the presence of her husband together with her in the United States.

As a result of the I-601 waiver approval, this family now lives inside the United States as lawful, contributing citizens of the United States.

Learn more: I-601 Waiver (Extreme Hardship)

Past results do not guarantee, warrant, or predict the outcome of any future legal matter.

Defining Extreme Hardship in I-601 Waiver Cases

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Update (October 2026): USCIS issued formal extreme hardship guidance in October 2016, now in the USCIS Policy Manual (Volume 9, Part B), listing the factors officers consider. Learn more on our I-601 Waiver page.

Michael Cho Immigration Lawyer

According to Section 212(a)(9)(B) of the Immigration & Nationality Act, an alien unlawfully present in the United States for one year or more who again seeks admission to the U.S. within 10 years of the date of alien’s departure or removal from the U.S. is inadmissible.

However, Section 212(a)(9)(B)(v) of the Act provides for a waiver of section 212(a)(9)(B)(i) inadmissibility if the inadmissible alien can establish that refusal of admission would result in extreme hardship to the U.S. citizen or lawfully resident spouse or parent of the alien.  This is also referred to as the I-601 waiver, or the I-601 “extreme hardship” waiver.

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 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

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.

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 “relevant 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.”

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 Kau and Aiei Tsui Un, 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. See Salcido-Salcido, 138 F.3d at 1293 ( quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 247 (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, when adjudicating I-601 waivers, it is the totality of the circumstances that will determine whether denial of admission would result in extreme hardship to a qualifying relative.

Learn more: I-601 Waiver (Extreme Hardship)

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