I601 Hardship Waiver Legal Standards

Ame Coats: Hello everyone.  I’m Ame Coats.  I’m an immigration attorney with Bashyam Spiro.  And I’m here with our managing partner Murali Bashyam.  Bashyam Spiro is a fully serviced immigration law firm located in Raleigh, North Carolina.  We represent clients in all 50 states and around the world.  Today, we’re gonna talk about I601 waivers.  We’re gonna split this webinar down into three different segments.

 

Now, our second section in our webinar today is to discuss the actual legal standard for an I601 waiver.  And there’s two main things.  First of all, an applicant for an I601 waiver has to have a qualifying relative, and there also has to be extreme hardship.  For pretty much any cases, it’s always going to be your U.S. citizen or permanent resident’s spouse or parent.  Sometimes a U.S. citizen or permanent resident’s child is also a qualifying relative, but not in most cases.

 

So that’s one – I don’t want to call it ‘mistake’, but maybe a misunderstanding.  People will often think that they can use their U.S. citizen child as a qualified resident, but most times, that child is not a qualified relative for this type of case.

 

Murali Bashyam: And what type of hardship are we speaking about here, Ame?

 

Ame Coats: Well, we’re talking about extreme hardship.  But going back to the qualifying relative, I also wanted to mention that a U.S. citizen’s fiancé is also a qualified relative; however, I don’t recommend that a U.S. citizen try to get a waiver for their fiancé.  Because to me, if you’re not married, it shows a lack of commitment, and I think it would be much more difficult for a consular officer to approve a waiver case if you’re not married.

The hardship standard is tough.  I mean it’s definitely greater – I mean any family and any family member is going to suffer some degree of hardship if they’re put into this situation.  So it’s gotta go above that; it’s gotta go above an average level of hardship.  And, also, when you do one of these cases, you gotta present the case in two ways.  You have to talk about the extreme hardship that U.S. citizen or permanent resident relative is going to face if they relocate to the foreigner’s actual home country or to another country.  You also have the to talk about the extreme hardship that a U.S. citizen or permanent resident relative will face if they choose to stay in the U.S. without their relatives.

 

So, now, I kind of wanted to go through some of the things that I talk about when clients come in.  When a client has made a decision that they’re gonna go for this, maybe they’ve made the decision or they’re here, and we have no choice; we have to file a waiver.  But, regardless, the first thing we do is we sit and then we have a brainstorming session and we talk about every possible argument that might exist for their case.  Now, some arguments hold much more weight than another.  So when we go through these, it’s not that – in most cases, one of these factors is not going to be enough.

 

Now, having said that, if you have leukemia – if you’re a U.S. citizen and you have leukemia, and you absolutely need for your foreign national spouse here to help you get to your doctor’s appointments and just to help you get around the house and do your daily activities, then that one thing is very, very extreme, and that’s probably going to be enough to win a case.

 

Murali Bashyam: Or maybe even if the medical treatment you are receiving here is not available in the home country…

 

Ame Coats: Oh yeah, that’s true.  That’s true.  So for many of these folks with extreme health-related hardship, one thing might be enough.  So the first thing I ask a client to the U.S. citizen – to the permanent resident, “Do you have any illness?  Do you have any physical disabilities?”  Is someone is maybe 75-80 years old, that might be something that we can use, as well.

 

Mental illness, emotional hardships, these are things that we always talk about.  Different attorneys have different opinions on this one.  My feeling is that I’m not a licensed counselor or a therapist, and I do not have the capability to assess whether or not my U.S. citizen or permanent resident client is going to have emotional issues and hardships that go beyond most any other person.  So I ask them to go see a therapist, usually, and see what the therapist or the professional says about that.  I don’t try to make that judgment.

 

Murali Bashyam: I would think, though, if you were split up from your spouse, it would ultimately cause a significant amount of emotional hardship.

 

Ame Coats: Right.  But again, it’s gotta go beyond the hardship that any spouse is going to face.

 

Murali Bashyam: So just missing somebody is not enough?

 

Ame Coats: No, that’s not going to be enough.  Absolutely not.  And, also, if the U.S. citizen or one of – the wife in the case is around the age of 33, 34, 35, 36, or even a little older, I definitely think that if the couple wants to have children, then that can be an issue as well.

 

The next thing that I ask clients about is do they have any relatives that they’re responsible for caring for?  If you have aging parents, if you have children that you’re responsible for, or children from another relationship, where you know that the father or the other of that child, there’s no way they’re gonna let the child relocate to another county, those are all things that we can use.

 

As far as miscellaneous arguments go, the U.S. citizen or the permanent resident’s family’s ties to in the United States.  I recently had a very interesting case where the U.S. citizen, he lived within one to two miles of six brothers and sisters.

 

Murali Bashyam: That’s pretty amazing.

 

Ame Coats: It is.  So you know what I did?  I got a map from Yahoo! and I plotted their addresses on the map and I actually calculated the distances.  And I think – I don’t know, but I want to believe that when the immigration officer saw that, that made it very concrete for that officer that this U.S. citizen, his entire family is here in the United States.  And not only are they here, but they’re very close, they all live with two miles of each other.

 

Murali Bashyam: I’ve got a question for you, Ame, when you’re trying to prove extreme hardship; hardship to who, is it the U.S. citizen, is it the foreign national, or is it both?

 

Ame Coats: It’s the U.S. citizen or the permanent resident; it’s not to the person who’s applying to permanent resident status.  I mean I guess there are some arguments that could be made that if the U.S. citizen or the permanent resident sees their spouse in a difficult situation that in turn back causes them hardship.

 

Murali Bashyam: Especially if a country condition is bad.

 

Ame Coats: Right.  Exactly.  If you know that your spouse is being sent back to somewhere that’s just a horrible place to live right now.  For sure.  Okay, economic hardship.  Financial hardship in and of it self is not going to be enough to win a case.  If you’re just trying to make an argument that you rely on your spouse’s salary to pay the bills, I don’t think that’s gonna work.  But if you’ve got a mortgage, if you got school loans, if you have credit card debt, and maybe car lease; lots of debt that you’re responsible for, then I think, sure, those things can be used, as well.

Professional hardship, this one might be a little bit tricky.  It really depends.  If you have a demonstrated career path in something that’s pretty impressive, or a business that you own, I think you can use that.  So, for example, if you own a car dealership and you relied on your foreign national spouse to help with you the dealership even, then that might be something that we could use.

 

Murali Bashyam: Didn’t we have a case similar to that?

 

Ame Coats: Yes, we did.  Yes.  And of course I used that to the best of my ability to try to get that case approved, but it was one of the major factors that I used in the argument.  Spiritual reasons, as well.  I also had a case where I had a client who was very involved with his church here in the United States, very involved, and it was documented.  He had been on mission’s trips; he was in the band at the church.  And if he had had to relocate to the foreign national home country, the Christian religion in this country just isn’t represented.  And he would have waltzed out on his community of – his church community, and being able to go to services on a regular basis.

 

Murali Bashyam: That’s pretty interesting.  So the bottom line is you really have to look at every angle in one of these cases to see how many of these factors work in the client’s favor.

 

Ame Coats: Yeah.  And I can’t tell you how important that initial brainstorming session is.  And even after the brainstorming session, it doesn’t stop there.  As we’re working on the case, when then think of other things to include in.  And finally, of course, country conditions.  Now, if you’re from France, I’m not going to try to make a big argument that you’re gonna suffer.  I mean any argument you put here has gotta pass a straight-face test and also –.  But these are things that you see on the PowerPoint, these are all issues I look into depending on the foreign national home country.

 

Murali Bashyam: We wanna thank everybody for attending this webinar.  We hope you found it helpful.  If you have any other questions related to this topic or any other immigration topic, please feel free to e-mail Ame at ame@bashyamspiro.com or, myself, murali@bashyamspiro.com.  And we thank you for attending this webinar.

 

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