how to file for Hardship Waiver Cases

Exceptional Hardship Waivers and Similar Cases

We often meet with clients who believe they need a hardship waiver and they tend to ask “what do I need to bring you in order to file my case?” The answer is that it depends on the reason you need a waiver and on your particular circumstances. There are generally two categories of people who can file for a waiver: (1) Individuals who are outside of the U.S. who have been found inadmissible at their visa interview and (2) Individuals who are inside the U.S. and are applying for adjustment of status (to get their greencard) and have an issue in their past which makes them inadmissible.

Here we are going to review, discuss and understand whether you will require a Waiver and on the types of papers you need to produce in order to strengthen your case. Here is a brief summary of some of the more common cases we see in our offices:

Health related grounds: Some individuals require a Waiver because of a health issue, for example, if you have gonorrhea, some cases of tuberculosis, and some cases of syphilis, all require a hardship Waiver. If you have a physical or mental disorder with associated harmful behavior (your behavior is a threat to the property, safety, or welfare of yourself or others) you will require a Waiver. Also, if you’d like a Waiver of one of the U.S.’s vaccination requirements you will require a Waiver based on sincere religious beliefs or moral convictions, not hardship. We have the sensitivity to handle your personal medical information professionally and confidentially.

Criminal convictions: We have successfully obtained Waivers for many clients with past criminal issues. Some of the more common criminal issues for which we seek Waivers include possession of 30 grams or less of marijuana, two or more convictions for which the aggregate sentences to confinement were five years or more, prostitution (for a successful Waiver based on prostitution you only need to show rehabilitation and that your admission to the U.S. will not be contrary to the national welfare, safety, or security of the U.S.), and crimes involving moral turpitude (includes most common offenses including many different types of theft offenses and simple assault/battery convictions). If more than 15 years have passed since the conviction you are seeking a Waiver for then you only need to prove that you have been rehabilitated and that your admission to the U.S. will not be contrary to the national welfare, safety, or security of the U.S. If less than 15 years have passed, then you need to prove extreme hardship to your U.S citizen or lawful permanent resident (greencard holder) spouse, child, or parent if your case were denied. Note that if your conviction was particularly violent or dangerous, your Waiver may still be denied even if you prove extreme hardship (denials can be appealed). On the flip side, there is an exception in the law for some truly petty crimes. This latter category of convictions does not require a Waiver.

You will need a Waiver for a crime both if you admit you committed the crime (even if you weren’t convicted) or if you were convicted (even if wrongfully convicted). For immigration purposes, pleading guilty is considered a conviction and so is a “withhold of adjudication.” If your crime falls into the category that requires a Waiver, you will need a Waiver even if you pleaded “nolo contendere” or “no contest.” You do not need a Waiver if you do not admit to the crime and the case was dropped or you were found not guilty.

Membership in a totalitarian party: This reason for requiring a Waiver is fairly common with immigrants from Cuba who are often required to join a communist group as part of their school, community, or job. To obtain a Waiver you only have to be a parent, spouse, child, or sibling of a U.S. Citizen, or a spouse or child of a lawful permanent resident, or the fiancé(e) or a U.S. citizen. The Waiver is granted for humanitarian purposes, to assure family unity, or when otherwise in the public interest. No showing of hardship required.

Immigration fraud or misrepresentation: Typically we see clients who entered with a fake passport/fake visas or someone else’s passport or visa. Also we see clients who lied on some prior immigration form. To obtain a Waiver of immigration fraud or misrepresentation you must prove extreme hardship to your spouse or parent, extreme hardship to your child only counts insofar as it affects your spouse or parent. Again, note that the spouse or parent used for the Waiver must be a U.S. Citizen or lawful permanent resident. This Waiver is generally not available if you falsely claimed to be a U.S. citizen. For example, if you used a fake U.S. passport or someone else’s U.S. passport to enter the U.S. you cannot apply for a Waiver.

Smugglers: Generally, is you were involved in smuggling your spouse, parent, or child illegally into the U.S. you can obtain a Waiver for humanitarian purposes, to assure family unity, or when otherwise in the public interest. Again, no showing of hardship required.

3 or 10 year bar due to previous unlawful presence in the U.S.: If you were unlawfully present in the U.S. in excess of 180 days you face a three year bar prior to being able to return to the U.S. If you were unlawfully present in the U.S. in excess of 1 year you face a ten year bar prior to being able to return to the U.S. You can seek a Waiver of the 3 or 10 year bar based on hardship to your U.S. citizen or lawful permanent resident (greencard holder) spouse or parent. Like with immigration fraud/misrepresentation, extreme hardship to your child only counts insofar as it affects your spouse or parent.

The above constitute some of the more common reasons for seeking a Waiver and summarizes the type of Waivers available for each reason. The papers you need to prove your case depends on the type of case and the particular facts in your case. For example, if you are inadmissible for a criminal conviction, you will want to include police report/s, court records, evidence of rehabilitation (paying of fines as ordered, successful completion of probation or a court ordered program, clearance showing no further crimes), and affidavits from you and witnesses (if applicable) describing the circumstances resulting in your conviction and your regrets.

If your Waiver case is based on hardship you will want to include doctors’ notes, copies of medical records, and even prescriptions if there is an element of health hardship. If you are claiming financial hardship you will want to include proof of income (pay stubs, income tax returns) and expenses (bills, statements).

Generally, it is always a good idea to include proof of your good moral character. Achievements in education or work can be documented with certificates and diplomas or proof of promotions. Proof of your involvement in community service or involvement in a religious community can also be beneficial to your case. Along these lines, if possible, it is good to show evidence of additional family ties in the U.S.

In law, there are always little nuances and exceptions which may or may not apply to your case. You should contact us at (916) 613-3553 to discuss whether your case meets the general rule or whether there is an exception that applies to you. Additionally, note that the above laws are generally slightly different for those benefiting from VAWA (the Violence Against Women Act), T nonimmigrant status, or TPS (Temporary Protected Status).

We have experience handling the most sensitive and personal issues and your Waiver case will be completely confidential, meaning we won’t tell anyone about it besides the immigration authorities. It is important that you are honest and open with us because the approval of your Waiver is only for the crimes, incidents, events, or conditions we list in your application. So, for example, if we seek a Waiver based on a criminal conviction the approval of that Waiver is only for that criminal conviction, not for a lie you may have told on a previous visa application, for example. You would need a separate Waiver if you didn’t disclose everything on your first Waiver, causing additional delay and money.

If you’ve already filed your Waiver and it was denied with another attorney, please contact us at (916) 613-3553 to discuss your options.

We have extensive appellate experience, meaning that we can guide you through the appeal or a motion on your denial.

We can also re-file the case for you.