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A waiver is an immigration filing that waives a factor that would otherwise make someone inadmissible as an immigrant to the United States. There are many reasons that USCIS may determine someone is inadmissible. Here is a short list of some common examples: • Being present in the U.S. unlawfully (without a visa) • Committing certain crimes or spending time in prison • Helping to bring others to the U.S. unlawfully • Being found to have lied to law enforcement or immigration officials (entering the U.S. with false papers, misrepresenting facts at a visa interview) Not all reasons for inadmissibility are eligible to be waived. Also, to be eligible for a waiver, applicants must have a ‘qualifying relative,’ defined as a U.S. citizen or lawful permanent resident spouse or parent. Waivers are typically part of a larger case strategy that involves other filings and ultimately attending an interview at the U.S. consulate in the applicant’s home country. This post outlines the most common types of waiver filings, but as with many areas of immigration law, there are exceptions, outliers, and special circumstances that may affect an applicant’s eligibility to qualify for a waiver or the particulars of any given waiver process. Types of Waivers There are two main types of waivers, typically referred to by their USCIS form names: I-601 Waivers can waive any reason for inadmissibility (as long as it’s eligible to be waived). They typically must be filed while the applicant is out of the country unless they are being filed as a response to a Request for Evidence issued after an adjustment of status interview. I-601A Provisional Waivers can only waive unlawful presence but have the advantage of being able to be filed in the U.S. before an applicant departs for their consular interview. This allows the applicant to remain with their family while they wait for the waiver approval and an interview date. Extreme Hardship The standard that most waivers are trying to prove is called Extreme Hardship. This standard is not clearly defined in immigration law but is rather up to the discretion of waiver adjudicators and interviewing officers. Basically, a waiver must prove that the applicant’s qualifying relative (spouse or parent) would suffer more than expected if the applicant is denied entry into the U.S. after their consular interview or if the qualifying relative had to move to the applicant’s home country in order to avoid separation. Of course, people are expected to suffer when separated from their family or upending their lives to move to a new country, but extreme hardship dictates that this suffering must be beyond the normal scope of emotional, financial, medical, or other hardship. It is important to cover both the separation and relocation scenarios when demonstrating extreme hardship. There are a number of factors that adjudicators are instructed to consider when evaluating extreme hardship and they must weigh the sum of these factors rather than looking at each factor individually. So, what factors can be used to show extreme hardship? USCIS’s guidelines on this subject are fairly comprehensive. There are particularly significant factors (which weigh heavily in supporting a finding of extreme hardship) and specifically enumerated factors (which can each be considered in meeting the standard of extreme hardship). Examples of each are as follows: Particularly Significant Factors (Comprehensive List) • QR (Qualifying Relative) previously granted Iraqi or Afghan Special Immigrant Status, T Nonimmigrant Status, Asylum or Refugee Status, or Withholding or CAT • QR or related family member disability • QR’s military service • U.S. Department of State travel warnings for applicant’s home country (must have a high level of risk) • Substantial displacement of care of applicant’s children Specifically Enumerated Factors (Non-Comprehensive List) • QR’s family ties in the U.S. • QR’s responsibility to care for family members • Nature of the relationship between the QR and applicant that would make separation more difficult • QR’s length of residence in the U.S. and/or integration into U.S. culture • Fear of persecution (religious or otherwise) in applicant’s home country • Loss of job, education, or training opportunities • Language or cultural differences • Economic impact such as having to sell a home, termination of a professional practice, significant loss of income, inability to pay debts, or large additional expenses • Medical conditions of QR or children and quality/availability of medical care in applicant’s home country • Psychological impact on QR including past traumas that would make the separation more difficult What Goes into a Waiver? If it is determined that an applicant is eligible for a waiver and that they have a qualifying relative, the attorney will then outline the documents needed to prove the extreme hardship. Typically, the documents requested are from the qualifying relative, as that is who needs to show extreme hardship, but some attorneys will also request documents from the applicant. These documents will vary by attorney’s office but will usually include the following: • Medical and/or mental health records • Financial documents, such as bills, pay stubs, and taxes • Proof of health insurance • Rental agreements or mortgage documents • Letters of support from family members, friends, and others in the community • Any criminal records related to the applicant • Birth certificates for any children born to the applicant and/ or their qualifying relative spouse These documents from the applicant are supplemented by documents that they attorney will create or provide such as: • Documents related to living conditions and/or safety concerns in the applicant’s home country • Articles or documentation related to financial burdens, such as the cost of traveling to the applicant’s home country or the cost of childcare in the qualifying relative’s home state • Affidavits or declarations from the applicant and their qualifying relative The above documents make up an evidence packet that is used to support the narrative of extreme hardship. This narrative is laid out in the affidavits/declarations from the applicant and qualifying relative and is written out in the form of a legal brief or cover letter by the attorney. The goal of the narrative is to show how the evidence packet supports the extreme hardship that would occur if the applicant and qualifying relative were separated or if the qualifying relative moved to the applicant’s home country. What Makes a Strong Waiver? The most important thing to demonstrate in a waiver is that the case rises to the level of extreme hardship. The narrative detailed in the affidavits/declarations and cover letter is what ultimately makes the case for extreme hardship. These documents will reference items in the evidence packet to bolster the case and to provide concrete proof of any claims made. This narrative is written with an aim to convince the reader that the case meets the guidelines and also to sway the reader towards granting a favorable outcome. Because there is no concrete definition of extreme hardship, the adjudicator’s discretion plays a large role in deciding whether to approve or deny waivers. Here, discretion means the freedom to decide according to their own personal judgement. In this sense, getting across a moving story and appealing to the adjudicator’s humanity is an important aspect of a waiver filing. Because discretion plays such a large role, it can be tricky to guess if any given waiver will be approved. Though adjudicators are following guidelines, there is a lot of room for their own feelings and biases to influence their decisions. Attorneys will work with the applicant and their qualifying relative to craft the strongest case possible for each individual’s circumstances. -------- This has been a fairly broad overview of the waiver requirements, structure, and process. Like most areas of immigration law, waivers are complicated and the general rules at play have plenty of exceptions. We hope this has been helpful in understanding some of the basics and please do not hesitate to contact our waiver experts here at Parker Butte & Lane!