‘Extreme hardship’ waivers

Recently, a Ninth Circuit Court of Appeal opinion offers new hope for people who are required to file a waiver demonstrating “extreme hardship” on certain close relatives. If you or someone you know is required to file a hardship waiver, this case will be of interest to you.

By way of background, in certain cases, a person may be ineligible for a visa or be inadmissible based on various immigration violations. This can include a fraud waiver if the person committed fraud or misrepresentation, such as entering the US under an assumed or different name, submitting bogus, altered or forged documents, etc. A hardship waiver is also required if a person is subject to the 3/10-year bar or they are seeking a provisional waiver.

If a hardship waiver is required, the person must demonstrate that they have a spouse or parent who is a US citizen or lawful permanent resident (called “qualifying relatives”), who would suffer “extreme hardship” if the waiver is not granted. USCIS (US Citizenship and Immigration Services) has a policy manual and has devoted an entire chapter on extreme hardship, such as what constitutes extreme hardship, the type of proof necessary, the type of documents needed, etc.

One of the basic factors is demonstrating the extreme hardship a qualifying relative would suffer if required to relocate to their family member’s home country. In other words, the stress, trauma and anxiety a US citizen would have to endure if they were to uproot themselves from the United States, leaving behind their job, other family members, health care, etc.

What makes this Ninth Circuit decision so important is that the court said it is basically a violation of the qualifying relative’s constitutional rights if they are required to relocate. Therefore, I would argue that not only does relocation result in a qualifying relative suffering extreme hardship, but it also violates his or her due process rights under the US Constitution, and USCIS requiring a qualifying relative to relocate is unconstitutional.

That court case dealt with a different issue, which was the doctrine of consular non-reviewability, which I will discuss in a different article. But the case had very helpful language in connection with people being required to file a hardship waiver.

The court noted that marriage is a constitutionally protected right or liberty interest: “[f]reedom of personal choice in matters of marriage and family life is … one of the liberties protected by the Due Process Clause.”

The court further noted that not only does a US citizen spouse have a constitutionally protected right in their marriage, they also have a constitutionally protected right to live in their country of citizenship: “In addition to having a fundamental liberty interest in their marriage, US citizens also possess a liberty interest in residing in their country of citizenship.”

The court further pointed out that it is wrong to require a US citizen to choose between living with their spouse in a foreign country and living in their country of citizenship, which is the United States: “The cumulative effect of such a denial is a direct restraint on the citizen’s liberty interests protected under the Due Process Clause because it conditions enjoyment of one fundamental right (marriage) on the sacrifice of another (residing in one’s country of citizenship)….The denial of an immigrant visa to the spouse of a US citizen deprives that citizen of the ability to enjoy the benefits of her marriage and to live in her country of citizenship.”

This case is extremely helpful for people seeking hardship waivers because it basically says that requiring a US citizen to relocate violates their constitutional rights.

If you or someone you know requires a hardship waiver, I would suggest you consult with an attorney who can, of course, help you package the hardship waiver. But as for me, I am going to be using this case for my clients and argue that demonstrating extreme hardship based on relocation is unconstitutional, and the waiver should definitely be approved. This is something really worth fighting for on behalf of clients.

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