Discretionary Hardship Waiver of the 10 Year Bar to Reentry

832858_-paper_family_ii-.jpgThe Immigration and Nationality Act (INA) states that a foreign national who has been unlawfully present for one year or more in the United States, departs from the US, is then subject to the 10 year bar and may not reenter. The 10 year bar means that the foreign national would then be inadmissible for 10 years from the date of his or her prior departure.

The INA does provide a waiver that would allow such foreign national to reenter if it can be established that refusal to admit the foreign national would result in extreme hardship to the foreign national’s US citizen or US permanent resident spouse or parent.

Whether “extreme hardship” would result depends upon the particular circumstances and facts of each case. Such factors that may be considered to determine whether extreme hardship would result include: whether the foreign national has a permanent resident or US citizen or parent living in the United States, whether the spouse or parent has family ties outside the US, the living conditions in the country the spouse or parent would relocate to if a foreign national was not admitted, financial impact of departure, and significant health conditions.

Common negative results caused by removal do not constitute extreme hardship and would not establish a waiver. These include: economic disadvantage employment law, standard of living loss, separation from family, separation from community, cultural readjustment, and poor economic and educational opportunities abroad.

However, although the hardship may not be severe by itself, it must be considered along with the entire range of factors in the totality of the circumstances to determine whether the combination of hardships take the case beyond mere ordinary hardship associated with deportation.

The USCIS has discretion to grant a waiver to the 10 year bar if it is established that the social and humane considerations presented on the person’s behalf outweigh the reasons in favor of removal.