Immigration: How can I meet the "hardship" criteria for the new Family Unity Waiver?

An immigration attorney with 30 years of experience provides some guidance on the new Family Unity Waiver

The final rule for the Family Unity Hardship Waiver was published on January 3, 2013 and can be filed starting March 4, 2013. 

Many of my clients have asked me how do they know if they qualify for the “hardship”?

First, it appears that the hardship must be to a US citizen parent or spouse only.   This does not necessarily mean that the US citizen sponsored the Applicant, only that to qualify for the Family Unity Waiver, the Applicant must be the spouse or child of a US citizen relative.

The hardship must be to the US citizen spouse or parent only.  If the Applicant has 3 US citizen children and one of the children is very sick, this hardship does not appear to qualify because the hardship is not to a US citizen spouse or parent, but rather, to a US citizen child.

What is the definition of “hardship” in the context of the Family Unity Waiver?  A hardship may be a negative, such as a serious illness; or it may be a positive, such as a serious career.

For instance:  1) US citizen Mary marries Harold, from Ecuador, and Harold needs to qualify for the Family Unity Waiver in order to return to Ecuador for his personal
interview at the US Consulate in Guayaquil, and return to the US immediately
thereafter, without having to remain in Ecuador for a period of 10 years, as
required by our current immigration laws. 

Mary suffers from worsening diabetes and it has been increasingly difficult to care for their 3 US citizen children.  It would be a severe and unusual hardship for
Mary to move to Ecuador for 10 years with Harold because she would not be able
to continue to see her doctor and receive the treatment that her doctor
provides in the US for her diabetes.  She might not be able to obtain the insulin that she needs in Ecuador, she would not have access to hospitalization in Ecuador.  However, if she remains in the US alone, she would not be able to care
for her children without Harold; she can no longer walk around the supermarket
to do the shopping because she cannot stand on her feet for long periods of
time and she cannot lift the groceries, or the children, or make the house
repairs, etc.  Her diabetes may be enough to meet the standard of “hardship” required for the Family Unity Waiver.

                     2)  What if Mary has no medical issues at all, but one of their US citizen children has severe diabetes.  A hardship case may be able to be made for Mary who must care for the child, inject the insulin into the child, take the child to
medical appointments, hospitalizations, etc.  Although the sickness is not Mary’s sickness, a case may still be able to be made showing how the sickness becomes a severe hardship to Mary, the US citizen spouse who must care for the child.

3)  What if Mary has no medical issues, but she has been a nurse for 15 years.  She went to college for nursing; she worked her way up through her career and is now at the top of her career.  If she were to move to Ecuador, she would lose the entire career for which she studied, and worked so hard, for so many years.  To
force Mary to move to Ecuador and lose her career would be a severe hardship to
Mary. If Mary were to remain in the US while Harold stays in Ecuador for 10
years, this could also be a severe hardship to Mary’s career because she would
also have to care for 3 children all by herself, in addition to her career
which requires her to work some night and weekend shifts.

                  4) Mary is not a US citizen.  She is a lawful permanent resident, or “green card” holder.  However, Harold’s mother is a US citizen, elderly, and suffering from a number of medical issues.  The hardship could be to Harold’s mother, whom Harold supports and helps take care of her household repairs, drives her to her grocery shopping, shovels the snow in front of her house, etc. 

I have made “hardship” arguments in cases in which the US
citizen is currently in college and has not even completed educational studies
to start a career.  Mary could still be studying nursing courses, and we can still show a severe hardship to Mary to have to leave her studies and abandon her career opportunities in the US. 

Each “hardship” case is unique and distinct.  I listen to the background of each family situation.  I have the families meet with a local psychologist who writes up a detailed report for me.  Today, almost every family faces its own set
of hardships.   Creating a winning Family Unity Hardship Waiver means finding the particular hardships which each family faces, obtaining the documentation to support the hardships and explaining the hardships in detail so that they are easily understood and believed.






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