Waivers of Inadmissibility and Standards of Hardship

By Attorneys Robert L. Reeves and Eric R. Welsh

In order to receive permanent residence status in the United States (i.e., a “green card”), an applicant must establish that he or she is “admissible.”  In order to demonstrate admissibility, the applicant must show that no event or status from that person’s past or present triggers a bar to admission to the United States.  If a bar applies, the applicant is only admissible if the applicant can demonstrate that he or she is eligible for a waiver as a matter of fact and law, and deserves a waiver as a matter of discretion. 

For example, if an alien is unlawfully present in the United States (e.g., overstays a visa) for more than six months or one year and then departs the United States, that alien is subject to a 3- or 10-year bar to admission as a permanent resident.  An alien who attempts to gain entry or an immigration benefit by using fraud or misrepresentation triggers a permanent bar to admission.  These bars to admission can be waived, and the standard for determining whether these aliens are eligible for a waiver is the same: “extreme hardship.”

Waivers are available if an alien has a parent or a spouse who is a lawful permanent resident or a U.S. citizen, but only if the applicant demonstrates that denial of a green card would cause the parent or spouse to suffer “extreme hardship.”   In determining whether the alien has met the “extreme hardship” standard, the adjudicator will consider: family ties in the United States; country conditions in the country of origin; the financial impact of departure or separation; significant health issues; and, the psychological or emotional impact of separation or removal. 

An alien seeking relief from removal in immigration court may have other waivers at his or her disposal, depending on the basis of removability and the alien’s eligibility for relief.  An alien who obtained a green card through fraud or misrepresentation may be permitted to keep his or her green card if the alien can demonstrate eligibility for a waiver under section 237(a)(1)(H) of the Immigration & Nationality Act.  The “237(a)(1)(H)” waiver is available to a person who is the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident, and unlike the inadmissibility waivers mentioned above, the “237(a)(1)(H)” waiver does not require a showing of “extreme hardship.”  However, the court must still make a discretionary determination, meaning the court will still look to the alien’s character and reputation, any hardship that may befall the “qualifying relative” or the alien, and the existence of ties to the United States.  The Ninth Circuit Court of Appeals recently found that an alien may be granted 237(a)(1)(H) relief even after the death of the qualifying relative. 

An alien in immigration court may also be eligible for cancellation of removal.  Cancellation of removal for permanent residents does not require a showing of “extreme hardship,” and does not require that the applicant have any family members with status in the United States.  However, like the 237(a)(1)(H) waiver, the applicant must still demonstrate that he or she deserves relief as a matter of discretion, meaning that the applicant should demonstrate that he or she is a person of good character with extensive ties to the United States. 

For an alien in immigration court who is not a permanent resident, cancellation of removal is still an option, but the standards are significantly higher.  The applicant for cancellation of removal for nonpermanent residents must demonstrate, among other factors, that he or she has a U.S. citizen or lawful permanent resident spouse, parent, or child who would suffer “exceptional and extremely unusual hardship” if the application were denied.  Although many of the same factors will be considered under either the “extreme hardship” or the “exceptional and extremely unusual hardship” standards, the latter will only be satisfied if those factors significantly exceed “extreme hardship.”        
The immigration laws provide for many different waivers depending on the circumstances of inadmissibility or removability, and the standards for eligibility vary widely from waiver to waiver.  It is important to consult with a qualified and experienced immigration expert if you believe that a bar to admissibility applies to you to determine which waiver is best suited to your case.