Why Do You Require an Extreme Hardship Waiver?
If you have overstayed a visa by more than 180 days but less than a year, you are barred from the US for a period of 3years (Illegal Immigration Reform and Immigrant Responsibility Act of 1996, also known as IIRAIRA). If you overstay by a year or more, you are subject to a 10-year bar. Also, if you entered the US illegally, you will require an Extreme Hardship Waiver. The bars do not trigger until you leave the country. Therefore, if there is any way to adjust your problem while still in the United States, it would be highly advisable to do so. Call us if you’re not certain toll-free 1-877-223-4684.
Most people discover they require an immigration waiver when they marry a US citizen. As they are not here legally, they have to leave the country for their interview and are concerned about returning (because as we mentioned in the paragraph above, the bar will trigger). Other people know they will be deported shortly and want to begin a case that allows them to return. Still others want to legalize their stay, but as they are not lawfully present in the United States, they are forced to leave the country for their interview and are concerned about returning.
TWIST: If the government conducts “proceedings” to have you removed and you leave after they started them, or even completed them, you are not subject to a 3-year bar unless you remain over a year (in which case the 10-year bar is triggered).
What is the Code Section for an Extreme Hardship Waiver and Who Qualifies?
The code section is INA (Immigration and Nationality Act) 212(a)(9)(B)(v) and persons with a US citizen or Resident Alien (ie has a Green Card) spouse (ie husband or wife) or parent. Children do not help you in this case (or else everyone would have kids to remain in the US and that would be a disaster of different proportions). Therefore, an immigration waiver and immigration appeal is unlikely be issued.
What’s the Standard for an Extreme Hardship Waiver?
To win an extreme hardship case you must show that extreme hardship would occur to the parent or spouse mentioned above (ie the ‘Qualifying Relative’) if the applicant were not allowed to enter the United States. The challenge is in the two words ‘Extreme Hardship’. Nowhere does it define exactly what Extreme Hardship ‘is’ and that is what makes these cases so difficult. Two things will determine how strong a case you have: the immigration lawyer who prepares the case and the immigration officer who reads it.
The Code does not spell out what Extreme Hardship is, but does help us a bit by explaining what it ‘isn’t’. For example, the anxiety caused by the mere separation is not enough. The financial losses caused by the separation is not enough (although if the person is heavily indebted and it causes financial ruin, that is another story).
There are various factors the officers will examine, and the decision is based on a totality of the circumstances, so to speak. They will examine the health and age of the ‘qualifying relatives’. They will examine whether there is more than mere normal financial changes, destruction of career, crime rates, the level of emotional damage the separation causes, quality of education, safety, and various such other factors.
Our experience has demonstrated that preparing a detailed legal brief to support the facts has been helpful for our clients. If the person can offer any pictures, doctor’s reports, or affidavits, that would make the officer’s job a lot easier. Overdoing it will have the opposite effect.
CATCH: If you were in the US illegally for more than a year and then re-entered illegally, you are permanently barred. No immigration waivers or immigration appeals necessary.
Extreme Hardship Waiver Helpful Facts
- D/S or Duration of Status persons. Students primarily enter as D/S as it is not known exactly when their school ends. Canadians are treated as D/S as well. The good news is that for D/S persons unless a judge finds them removable or they violated their status (ie a Canadian who works without a work visa) [which is usually discovered when they try to change over to another visa], their unlawful presence does not start to accrue. If a D/S asks for a Change of Status (ie to another visa) and it is denied, the unlawful presence accrues (= starts) on the date of denial.
- Persons with Voluntary Departure: Acrual begins the day Voluntary Departure ends if the person does not leave.
- Removal proceedings do not change anything. If you were legal, be careful about your time. If you were illegal, the time still keeps on clicking so be careful you don’t go from a 3-year bar to a 10-year bar.
- If you are under 18, no period of unlawful presence accrues until you turn 18.
- If you are part of a battered woman or child case and the bad acts led to you being ere in unlawful status, that time will not be held against you.
- If you had a legitimate asylum application and did not work illegally, likewise a Family Unity Application under the 1990 Act, then the time of processing will not be held against you for the purposes of unlawful presence.
- Federal Court and AAO appeals do not count to stop the time from ticking for unlawful presence purposes.
- The date on your I94 card may not be controlling if a judge or the CIS discovers a status violation (ie working when you were supposed to be visiting). In that case, the date unlawful presence accrues could start sooner.
- The 3-year bar does not apply to people who leave after proceedings have started against them (but the 10-year bar might, depending on when they leave).
We hope this article has helped you to understand the convoluted area of law dealing with Extreme Hardship Waivers, Immigration Waivers, and Immigration appeals a bit better. If you feel you qualify for one, give us a call for a consultation at 1-877-223-4684 or (619) 677-5727.