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How To Prove Extreme Hardship For A Waiver (Part 1) - A Guide To Plan Your I-601 Waiver Case - YouTube
Channel: BataraImmigrationLaw
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Are you trying to win an I-601 waiver
for an immigrant spouse through a green card
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marriage? Well, today is your lucky day. I'm
going to share some secrets that I have learned
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over the last two plus decades fighting waiver
cases. So let's get started. Oftentimes individuals
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come to my office. And they are seeking a
waiver, but they are not really sure what
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a waiver is. Many do not even know that they
are supposed to seek a waiver, and so they
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are really lost at that first interview. When
I explain that a waiver is a form of forgiveness,
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they start to understand the process a little.
But then the question is, what is that forgiveness
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dependent upon? What is the basis of winning
that hardship? And that again takes people
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into an area where they are not really understanding
what they need to do to prevail. Some may
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have been told that all they need to do is
to prepare a hardship letter and include a
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few relevant documents like birth certificates
and marriage certificates and similar materials.
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And the package, they have been told, should
be about 20 or 30 pages. Wrong. Wrong. Wrong.
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A hardship letter will not win a waiver. A
hardship packet is needed, which takes us
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then to, what is necessary to win a hardship
analysis? Evidence. But if you do not know
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what hardship is, how can you know what documents
to file? How can you know possibly what to
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write? And if you do not know what documents
to put into your packet, and you do not know
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what to write about, how can you possibly
hope to win? I'm going to take a four-step
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approach today. Here is what I'm going to
cover. First, how you should approach I-601
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waiver cases. Second, who among your family
members count, in terms of showing the level
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of hardship, extreme hardship, that the government
wants to know about. Third, what evidence
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can be included when you present your case,
when you prepare your package. And last but
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not least, why you should avoid sterile, robotic
formulas for presenting your hardship case.
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One size does not fit all when it comes to
winning hardship waivers. Instead, you should
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focus on your story, on your immigrant spouse
s story, on your family story. And that is
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what we are going to discuss today. So how
should you approach your case? Well, you have
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to approach it knowing that it is not just
hardship that will win your case. It is extreme
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hardship. The difference between ordinary
hardship and extreme hardship is a difference
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between losing and winning. Government, courts,
and judges have all noted that ordinary hardship,
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average hardship, is not enough. You have
to show a degree of suffering, a magnitude
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of pain, greater than the average immigrant
or a greater than the average immigrant family
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in order to win a hardship waiver. Here is
Secret Number One. The difference between
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extreme and ordinary is often far less than
people imagine. Personally, I do not think
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there is any such thing as an ordinary case.
I do not think there is anyone who qualifies
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as an ordinary, average immigrant. All cases
can be made special. All cases can show a
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higher degree of hardship over this imaginary
average, ordinary hardship level. But is your
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job to prove it. That is Secret Number One.
That ordinary and extreme hardship can coexist
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in a case. It is a matter of bringing the
evidence to show that your hardship is truly
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extreme. Then you just do not leave it in
the category of being classified as ordinary.
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Second, who counts? Well, under the law for
waivers, there are only two individuals that
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count. Spouses and parents. And the spouses
and the parents of the immigrant must be a
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lawful permanent resident or a United States
citizen. If you do not have either one of
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those individuals, then you do not have a
qualifying relative. Case over. You lose.
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But even if you have one of those individuals,
the law says that the direct hardship you
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show, the evidence they want to see, must
be a hardship that impacts your spouse or
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your parent. And by and far, most I-601 waiver
cases that I see, or that any attorney in
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the United States sees, has to deal with the
spouse. Normally, a United States citizen
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spouse. These are the cases where there is
hardship lurking. But it is not direct to
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the U.S. citizen spouse in many, many aspects.
And that is Secret Number Two. That you can
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show hardship even if it, even if the direct
hardship, does not impact just the spouse
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or the parent of the immigrant, if you can
make it relevant and have it connect to the
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qualifying relative. When I was in college,
I had a Dean who told me, Carlos, do you know
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the shortest distance between two points?
And she drew a line. I said, yes, I do know.
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No, do you know it is often the long way around?
That is the way to look at hardship. The shortest
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distance between proving that the loss of
an immigrant, the impact on the American spouse,
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is going to be the long way around. Because
the long way around, you are going to touch
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on other factors. Other individuals, children,
almost always in waiver cases, there are children.
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Are you telling me that the hardships of the
children do not count? Of course they count.
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And, of course, when that immigrant spouse
is removed from their lives, there is going
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to be a great impact, a tremendous burden
imposed upon the United States citizen spouse.
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So sometimes you have to go the long way around.
You have to use the back door to prove your
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hardship. That is Secret Number Two. Secret
Number Three is what evidence counts? Under
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immigration law, the concept of totality of
circumstances is how evaluators are supposed
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to look at hardship cases. This means that
all relevant evidence should be considered.
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The problem is, as an immigration appeals
lawyer, I see a lot of cases after individuals
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have lost, and it is my job to try to resurrect
them, to try to fix them, to revitalize them,
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to get them another day in court or a new
application in front of an adjudicating officer.
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In those instances, what I normally find is
that individuals who have fallen, have followed
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a robotic, systematic, sterile approach to
laying out their hardship factors. Three things
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you have to know about totality of circumstances.
One, all relevant hardship factors must be
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considered. Plug that into your popper upstairs.
All relevant hardship factors must be considered.
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Secondly, each relevant hardship factor must
be evaluated individually. Stress on the word
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individually . Three, the cumulative effect
of all relevant hardship factors must be assessed.
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So when individuals are taking this sterile
approach, and this is very common in cases
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where individuals have lawyers and they end
up losing. There is this ABC formula that
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they follow and they lay out, maybe, some
information about the children. Maybe some
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economic information. Maybe some medical and
health information. But it is laid out ABC.
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The totality is never captured so that the
evaluator, so that the immigration officer,
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can fully understand the whole picture. It
is the same thing with children. Oftentimes
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you will see in these cases, presentations
like Joey who is in the second grade, Jimmy
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who is in the fourth grade, and Jane who is
in the sixth grade, will all suffer educationally,
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academically from the loss of the father in
their lives. And a little bit of evidence
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is given and provided to the government to
review. What is wrong with that? They are
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all put together. They have not been separated.
The hardship that Joey suffers by missing
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his father is not the same hardship that Jimmy
will suffer from not being able to be with
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his father. Or that Jane will suffer. Each
child has a different relationship with their
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parents. Each child has certain skills and
needs, and all of those items must be weighed
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individually. But it is up to the person preparing
the application to separate those, so that
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they are evaluated separately. Then, when
they are all put together in the big picture,
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in the totality of the circumstances, then
they are going to have a bigger impact on
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the officer reviewing the case because they
now see all these separate individual hardships
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suffered by separate individuals. And of course,
you have to wrap that around the qualifying
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relative, the mother, the U.S. citizen spouse.
You have to show that each child's hardship
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is going to impact their mother. And if you
have three of them, and they impact the mother
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a different way, then her hardship will increase.
But it is the cumulative effect of what is
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going on here with the spouse, with the children,
with the family. Do not and this is Secret
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Number Three, do not lump everything together.
Separate it out. And remember, as we learned
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in Secret Number Two, the long way around
is often the shortest way to the goalpost.
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In this situation, showing the hardship to
the children that will result from the father
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will not count. But then you keep bringing
it through the back door, and you show how
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it affects the American spouse mother, and
it will count. That's Secret Number Three.
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Do not lump everything together until you
have assessed them individually. Secret Number
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Four. The big one. Story. Tell your story.
Tell the immigrant s story. Tell the family
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s story. Storytelling. That is Secret Number
Four. Storytelling. Tell your story. When
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people follow this robotic formula of just
listing factors. Or I know there are some
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offices where they do a tier one hardship,
tier two hardship, tier three hardship type
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of analysis. They are still segmenting things,
dividing things in a way that the adjudicator
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won't see the whole picture. You are asking
the adjudicator to compartmentalize. When
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you tell a story, you show those same elements.
You show those same factors. But you wrap
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them around the key players in the story,
which in this case would be the United States
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citizen spouse. And you bring them in through
the back door. You bring them in when you
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tell the story. And so the officer reviewing
the case now sees the case in an entirely
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different light. They see the big picture.
Yes, they see the factors, but there is something
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else they see that is more important. They
see how closely knit the family is. They see
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how close the parents, how codependent the
two spouses are. They see how the entire family
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and their little community will suffer. And
so even though their evaluation is supposed
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to only focus on the direct hardship to the
parent, if you can bring it in through the
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back door, it does affect the United States
citizen parent. And when they see that big
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picture, they see more factors and they have
more reason to approve the hardship waiver.
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And when they see your family like that, they
see a difference between your family and this
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other family where everything has been presented
somewhat robotically. In the next video in
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this series, I am going to dive into a variety
of hardship factors, a variety of pieces of
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evidence that you should present. And I am
going to discuss how we can use these four
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secrets, how we can tell a story that will
persuade an immigration officer to be more
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likely to approve the hardship waiver for
your immigrant spouse through a green card
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marriage. Good luck. I will talk to you soon
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