Extreme Hardship
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If you are not confronted with the problem of “extreme hardship” in your immigration application for benefit, consider yourself lucky.  It would often come up in these common situations: (a) when the petitioner dies and the petition “dies” too; (b) when an applicant is found to have lied or intentionally misrepresented facts before the immigration officer; and (c) while living here illegally after entering without a valid visa (‘crossing the border’), you marry a US citizen but you cannot adjust status and rejoin your spouse unless you exit then apply for a consular waiver.

Let’s consider the first case. Nelly is married with children.  Her US citizen- mother petitioned her in 1992 as a “married child of a US citizen” which, at present, takes about 23 years for the visa to become available.

Nelly’s mother was already 53 years old when she filed the petition.  In 2012, at the age of 73, the mother dies of natural causes, three years short of the visa availability date.

Nelly and her family lost their chance to migrate because the petition “died” with the petitioner.  One of the reasons behind this rule is that it is important for the petitioner to assure the US government that the beneficiary will not become a ‘public charge’ once admitted into the United States. This means that he will not become a financial burden to the US government.

With the petitioner already dead, it is obvious this cannot be fulfilled because there is no one to support or to guarantee support of the beneficiary while he starts life here in the US.

However, the rule has an exception; it allows the revival of the petition if the beneficiary can prove on humanitarian grounds (with focus on “family unity”) that he/she should be allowed to come to the United States. Said beneficiary has to support the request for “humanitarian reinstatement” with an affidavit of support executed by a qualifying relative.

An important factor utilized to support the request for humanitarian reinstatement is the “extreme hardship” that would be experienced by the US citizen and lawful permanent resident (LPR) family member if the beneficiary is not allowed to migrate to the US.

For instance, if one of the family members, such as Nelly’s father (who must be a US citizen or LPR) is suffering from a chronic illness that needs attention and care 24-7 and nobody else can perform said care, then “extreme hardship” can be pleaded to support the reinstatement.

If such situation can be supplemented by allegations of extreme financial difficulty brought about by the death of Nelly’s mother and Nelly can actually help in alleviating the family’s financial woes, then it is possible to have the petition reinstated, if other additional factors can be pleaded, such as the unavailability of an equally good health care conditions and the presence of socio-political and economic unrest in the country of relocation.

“Extreme hardship” may be found where the cumulative effect of economic and emotional hardship is extreme, even if, when all factors are considered separately, none would be extreme.  Hernandez-Cordero v. INS, 783 F.2d 1266 (5th Cir. 1986); Matter of O-J-O-, Int. Dec. 3280 (BIA 1996).


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