A hardship waiver application can be an intimidating and overwhelming process; Caruso Law Group can help you navigate the many steps involved. The Caruso Law Group team works hard to determine every hardship factor your family’s unique situation. Hardship waiver applications prepared by the Caruso Law Group office are thorough and compelling. Caruso Law Group’s senior paralegal, Allison Rowland, has more than six years of experience in assisting with the preparation of hardship waiver applications. She has managed more than 100 successful hardship waiver applications. Attorney Vanessa Caruso will help you determine if you are eligible to file a hardship waiver application. Caruso Law Group will help you and your family members tell your story, explain your situation, and ensure your application includes sufficient evidence to substantiate your hardship arguments.

What is a hardship waiver?

A hardship waiver application, regardless of the type (I-601, I-601A, or J-1), is your opportunity to explain how your U.S. citizen or permanent resident family member would experience hardship if you were not able to reside in the United States. There are three types of hardship considered in every waiver application: psychological hardship, physical hardship, and financial hardship. A complete hardship waiver application describes how your family member would experience hardship whether he or she relocates to your country to reside with you, or if he or she resides in the United States without you. For I-601 and I-601A hardship waivers, you also must explain why your application should be approved as a matter of discretion, i.e. why should you be forgiven for committing the acts that led to your inadmissibility?

Why do I need to file a hardship waiver?

You must file an I-601 or I-601A hardship waiver if you are “inadmissible” to the United States for one or more of the following reasons: unlawful presence, misrepresentation/fraud, or crimes involving moral turpitude. The standard of hardship for I-601 and I-601A waivers is “extreme.” [Note: Some I-601 hardship waivers for crimes involving moral turpitude must meet the higher standard of “extraordinary and extremely unusual” if the crime was an aggravated felony.]

J-1 hardship waivers are for J-1 visa holders who are required to fulfill a two-year residency period in their home country before receiving lawful permanent resident status in the United States. The standard of hardship for a J-1 hardship waiver is “exceptional.”

Why am I inadmissible?

Unlawful Presence (3-year bar, 10-year bar): Unlawful presence is accrued when a person is in the United States without lawful status. If you have entered the United States “without inspection,” meaning you entered the United States without interacting with a Customs and Border Protection officer, you begin accruing unlawful presence the moment you arrive in United States. If you enter the United States with a visa and overstay the amount of time in the United States allowed by that visa, you are accruing unlawful presence. If you have accrued more than six months but less than one year of unlawful presence, you face a three-year bar of inadmissibility. If you have accrued more than one year of unlawful presence, you face a ten-year bar of inadmissibility.

Misrepresentation/Fraud: If you have obtained or attempted to obtain an immigration benefit by willfully presenting fraudulent documents or false information to an immigration officer or on an immigration application, you are inadmissible. The misrepresentation/fraud inadmissibility bar is a lifetime bar.

Crimes Involving Moral Turpitude: If you have been convicted of or admitted to committing a crime involving moral turpitude (CIMT), you are inadmissible. A CIMT involves engaging in morally reprehensible and intrinsically wrong conduct with willful, reckless, or malicious intent. Some examples of CIMTs include: a) crimes against property - shoplifting, theft, fraud, forgery, robbery; b) crimes against a person - aggravated battery, aggravated assault with a deadly weapon, statutory rape; c) sexual and family crimes - aggravated domestic assault, child abuse; and d) crimes against the government - bribery, willful tax evasion, counterfeiting. The CIMT inadmissibility is a lifetime bar.

  • There are some special circumstances for CIMT waivers. If your crime occurred more than fifteen years ago, you may be eligible for a rehabilitation waiver. If your crime is considered a “petty offense,” you may not be required to file a hardship waiver. If your crime is considered an “aggravated felony,” you must prove a much higher standard of hardship: extraordinary and extremely unusual.

What is a qualifying relative, and do I have one?

In order to submit a hardship waiver, you must have a qualifying relative. Your qualifying relative is the person who you have to prove will experience extreme hardship if you cannot reside in the United States. For I-601 and I-601A applications, United States citizen and lawful permanent resident spouses and parents are most often the qualifying relative in a hardship waiver application. There are some instances, however, when United States citizen and lawful permanent resident children can be qualifying relatives as well. A hardship waiver application can have more than one qualifying relative. J-1 hardship waiver qualifying relatives can be United States citizen or lawful permanent resident spouses and children.

What are the hardship factors?

Psychological Hardship: How your qualifying relative will suffer emotionally/mentally if you are not able to remain in the United States. Will your qualifying relative experience depression and/or anxiety? Is your qualifying relative able to speak the native language in your country? Will your qualifying relative experience a disruption in educational pursuits? Will your qualifying relative’s other family members (e.g., children or parents) suffer as result of your inability to remain in the United States?

Physical Hardship: How your qualifying relative’s physical health and well-being will suffer if you are not able to remain in the United States. Does your qualifying relative have serious health issues that would be negatively affected by relocation to your home country or by your absence? Does your home country have adequate health care? Will your qualifying relative’s safety be in jeopardy in your home country? Will your qualifying relative be affected negatively by losing your physical support in the United States?

Financial Hardship: How your qualifying relative’s financial stability will suffer if you are not able to remain in the United States. Will your qualifying relative experience career disruption if you are unable to remain in the United States? Will your qualifying relative suffer a loss of income if you must return to your home country? Will your qualifying relative be able to cover all of his or her monthly expenses – including debt repayment – if you are not able to remain in the United States? Will your qualifying relative be able to afford the cost of travel between the United States and your home country?

What is the difference between I-601 and I-601A hardship waivers?

An I-601 hardship waiver applies to all three inadmissibilities (unlawful presence, misrepresentation/fraud, a crime involving moral turpitude). An I-601A hardship waiver can only be filed in instances of unlawful presence. The I-601A hardship waiver cannot be filed if you have been found inadmissible for misrepresentation/fraud or a crime involving moral turpitude.

What is the process for filing a hardship waiver?

There are several processes that include the filing of a hardship waiver:

  • If your immigrant visa was denied by a Consular Officer at a United States Embassy or Consulate, your I-601 hardship waiver application is filed to a USCIS lockbox in the United States. If USCIS approves your I-601 hardship waiver application, the Embassy or Consulate will be notified, and your immigrant visa will be issued. After entering the United States with your immigrant visa, you will be a lawful permanent resident and will receive your green card in the mail.
  • If you have accrued unlawful presence in the United States, and it is your only inadmissibility, you can file an I-601A provisional hardship waiver application to a USCIS lockbox in the United States. You can only file an I-601A provisional hardship waiver application after an I-130 Petition has been approved with you as the beneficiary. If your I-601A provisional hardship waiver application is approved, you will then submit an Immigrant Visa application through the National Visa Center. You are required to depart the United States to attend your Immigrant Visa interview at the U.S. Embassy or Consulate in your country of citizenship. At the conclusion of a successful interview, your immigrant visa will be issued. After entering the United States with your immigrant visa, you will be a lawful permanent resident and will receive your green card in the mail.
  • If USCIS issues a Request for Evidence following your I-485 interview asking for an I-601 hardship waiver application, you will submit your I-601 application to a USCIS lockbox in the United States and a copy of the application to your local USCIS office. If your I-601 application is approved, your I-485 application will also be approved, and you will become a lawful permanent resident and receive a green card.

What’s a rehabilitation waiver?

If you are inadmissible due to a crime involving moral turpitude, and the crime occurred more than fifteen years ago, you may be eligible to file a rehabilitation waiver. You do not have to prove hardship to a qualifying relative in a rehabilitation waiver. Instead, you must show evidence of your “rehabilitation” and of your good moral character.

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