The Meaning of “Extreme Hardship”

Thứ Tư, 06 Tháng Hai 201300:00(Xem: 15423)
The Meaning of “Extreme Hardship”
There are several situations in which a visa applicant needs to demonstrate “extreme hardship” to his or her petitioner if a visa is not granted.

Demonstration of “extreme hardship” is needed for I-601 applicants in Vietnam who have been denied a visa and told to file a waiver, for I-601A applicants in the US, for an overseas applicant in a Family Sponsor Act case in which the petitioner has died and a substitute sponsor is requested, and a 204 (l) applicant whose petitioner has died while the applicant is in the US.

The meaning of extreme hardship is not what hardship the visa applicant might face, but rather the hardship that the sponsor would face if the alien did not obtain a visa. The visa applicant mustdemonstrate that being separated from their U.S. citizen spouse or parent would cause the U.S. citizen relative extreme hardship. Or, the applicant must show that it would be an extreme hardship if the petitioner had to move to Vietnam in order to be with the alien spouse or child.

Just saying that the alien and the petitioner will miss each other is never enough, unless there is psychiatric evidence that such a separation would be harmful to the petitioner. In short, extensive documentation is required to convince CIS of “extreme hardship”. Extreme hardship can be demonstrated in many aspects of the petitioner’s life such as:

HEALTH – The most successful claims of extreme hardship are related to health issues. For example, the petitioner has requirements for ongoing or specialized treatment requirements for a physical or mental condition and good quality treatment is not available in Vietnam. This condition makes the petitioner unable to move abroad and the petitioner absolutely needs the Alien in the US to help take care of him/her.

Or, the petitioner is caring an elderly, chronically ill, or disabled relative who needs constant care and whose condition is bad enough that the petitioner MUST live with the relative. This makes the petitioner unable to move abroad and makes him/her really need the Alien in the US to help care for the relative and manage other responsibilities.

FINANCIAL CONSIDERATIONS for the petitioner could also be causes of extreme hardship. If the Alien could not get an immigrant visa and the petitioner had to move to Vietnam, what about the petitioner’s future employability? Loss due to sale of home or business or termination of a professional practice? Decline in standard of living? Cost of extraordinary needs such as special education or training for children in Vietnam? Cost of care for the petitioner’s elderly and infirm parents who remain in the US?

EDUCATION. For example, if the petitioner is currently attending university in the US, what would happen if he or she had to move back to Vietnam to be with the lien spouse? Loss of opportunity for higher education? Lower quality or limited scope of education options? Requirement to be educated in the Vietnamese language?

PERSONAL CONSIDERATIONS - Close relatives in the United States and /or Vietnam. Separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.

There are also special factors of culture, language and social structures which could have a serious impact on an American citizen moving to Vietnam.

Here is a story about an American-Mexican couple who were involved in a long battle to win an I-601 case. The Mexican husband entered the US illegally and stayed long enough in the US to make him subject to a ten year bar to re-entry. Since the husband could not return to California, the American wife tried moving to Mexico to be with him but she developed a severe bronchitis condition, which was not effectively treated by the doctors in Mexico. She could not get a teaching job in Mexico and was experiencing financial hardship. The house that the couple lived in got robbed. She was scared for her safety and unable to manage her chronic illness in Mexico, so she returned to live in San Diego while her husband continued to live in Tijuana.

After their son was born, the wife was working a full-time job as an elementary school teacher and crossed the US-Mexico border every day in order for her husband to take care of their son during the day while Samantha worked. The life got harder when Samantha’s and Enrique’s son was diagnosed with autism and required special treatment that was unavailable in Mexico.
With Samantha’s full-time job, childcare, and crossing the border twice per day, she had only 4 hours of sleep each day. This schedule began to wear on her and impacted her ability to function efficiently at work and in the home. Samantha lost her job teaching and took a part-time position in the school office, a position that was less demanding but less paying. After the couple had their second child, an unplanned pregnancy, the life got even harder. Samantha started experiencing symptoms of severe anxiety and depression.

It was not difficult to document the wife’s extree hardship when trying to live in Mexico and her hardship when living in the US without her husband. It was easy to show that she would not be able to relocate to Mexico and that it would be equally impossible for her to continue living away from Enrique in the U.S. There were the issues of her chronic illness in Mexico, unavailable special treatment for the child with autism, her inability to continue her career as an elementary school teacher, her strong family and community ties in the U.S. and other important factors. Documentation was provided to show that it would be impossible to raise a child with autism without both parents present.

The I-601, based on voluminous documentation, was finally approved and the couple was re-united. From this case, it is clear that reason for claiming extreme hardship must be serious and must be verifiable. Just missing each other is never enough reason to expect CIS to approve a waiver.

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Q. 1. Wasn’t there a time when people could pay CIS a penalty fee to have their green card application approved?
A.1. That was with the 245(i) rule. It allowed immediate relatives of US citizens to adjust to permanent residents even if they had been in the country illegally. This rule is no longer in effect. Now, Immediate relatives who are in the US illegally must go back to their country to apply for an immigrant visa.

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Q.2. Doesn’t marriage to an American citizen give any special rights to aliens who are in the US illegally?
A.2. Just being married is not enough to avoid the requirement to leave the US to apply for an immigrant visa. Approval of an I-601A waiver might be easier to get after the couple has been married for some time, and has children. Then they would have a better chance of demonstrating “extreme hardship” if the alien spouse does not receive her immigrant visa.

 
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