Under the Immigration and Nationality Act, an alien who, by fraud or willfully misrepresenting a material fact, seeks to procure or has sought to procure or has procured admission to the United States is inadmissible.
The alien may, however, be granted a waiver of inadmissibility upon showing that the alien’s citizen or lawful permanent resident spouse or parent would suffer extreme hardship if the alien is refused admission to the U.S.
The term “extreme hardship” is not exactly defined in the law. However, there are relevant factors in determining what constitutes extreme hardship.
The factors include the qualifying relative’s family ties outside the United States, the political and economic conditions in the country where the relative would relocate and the relative’s ties in that country, the financial effect of the relative’s departure from the United States and the relative’s health conditions given the unavailability of suitable medical care in that country.
In order for the waiver to be approved, the applicant must satisfy the two-prong test. First, the applicant must demonstrate extreme hardship to the qualifying relative if he were to remain in the United States while the applicant resided abroad. Second, the applicant must prove extreme hardship to the qualifying relative if he were to live abroad with the applicant. In addition, the applicant must prove eligibility for the waiver in terms of equities in the U.S. that are not outweighed by adverse factors.
In one case, the Officer-in-Charge in Manila, Philippines denied the waiver application of an alien who was found inadmissible for having procured admission to the U.S. through fraud or misrepresentation. Although the Administrative Appeals Office (AAO) initially denied the appeal, it subsequently granted the waiver upon the applicant’s second motion to reopen.
The applicant was a citizen of the Philippines who was married but claimed to be single during his immigrant visa interview in order to qualify for a visa as the unmarried son of a lawful permanent resident.
The applicant tried to establish that his mother would suffer extreme hardship if she were to remain in the U.S. while the applicant resided abroad. He presented evidence showing the emotional and psychological hardship that his mother was experiencing and the potential physical effects that could result from her psychological condition.
The AAO, however, denied the appeal because the evidence presented by the applicant failed to establish extreme hardship to his mother if she was forced to relocate abroad as a result of the denial of the waiver.
In his second motion to reopen, the applicant submitted new evidence establishing extreme hardship to his mother in the event of relocation. The applicant showed that his mother no longer had strong family ties in the Philippines. Her parents and seven siblings were all U.S. citizens and were living in the U.S. and the four remaining siblings in the Philippines were leaving for the United States within the year based on petitions filed long ago.
He also showed evidence of his mother’s financial hardship submitting documents showing his dependence on his mother’s remittances for living and how his mother would have no employment prospects in the Philippines. Although the applicant’s sister was in the U.S., he also submitted documentation showing that it would be financially burdensome on her to support both him and his mother if she were forced to relocate to the Philippines especially with her medical conditions.
The AAO found that the applicant established suffer extreme hardship to his mother if she were to move back to the Philippines.
In deciding the case, the AAO had to balance the adverse factors with the favorable factors. It found that the single adverse factor in this case, namely, the misrepresentation, was outweighed by the favorable factors consisting of the extreme hardships to the applicant’s mother and the applicant’s lack of criminal record.