Do you have a US citizen or permanent resident spouse, parent or child who will suffer from your absence? There is inconsistency in sections of the waiver laws as to whose hardship can be used. For example, some situations allow review of the hardship to parents, others do not. However, one thing is consistent, (your) the foreign national's hardship does not count. You need the qualifying relative who will suffer the hardship.
What about the hardship of being separated from my family?
Mere separation from a spouse or child is not enough. For example, the immigration service is fond of denying existence of hardship by comparing your situation to that of the family of a US military man or woman who leaves their family behind. The fairness of this is questionnable since the US soldier can still come back while you may not be able to return for ten years. However, an argument based solely on separation will fail. You must show why your situation is worse than mere hardship and mere separation.
Look at the health of the qualifying relative - Physical
Does someone need constant care? Are you the only relative available to give that elderly parent care? If you had to leave the country and took your qualifying relative with you, would they be able to get care in the foreign country? Examples: Your US citizen son is blind or has a degenerative disease. Your US parent has alzheimers?What medical resources exist in your home country? Are there enough hospitals there? Clean water? Transportaion to hospitals from remote villages?
Look at the health of the qualifying relative - Emotional or Mental
Is your permanent resident spouse suicidal at the thought of losing you? Have they stopped eating, stay up all night crying? Is your US child acting up in school under the stress of your potential deportation? Get a thorough psychological or psychiatric evaluation for that person. This should never be skimped on. One appointment with a social worker is not going to be enough., Every member of the family who will be affected should be seen by the mental health professional.
Does your qualifying relative have the ability to flourish in your home country?
Is your child a budding violin genius? Will they be able to study with top music teachers if they go with you? How long has your qualifying relative been in the US? Do they speak the native language of your home country? Were they here since birth and have no knowledge of your home country? Are they a member of a group that may be persecuted in the home country. For example, a teenage child who is a homosexual who would be going to a country where his sexual orientation will put him in peril.
Final thoughts -No one knows your hardship like you do
Think about how each family member will suffer. Think about your relationships with each other. Who would take care of your US born child if you were not here? Can you leave them with someone else who will care for them as well as you can? Be open to your attorney and to the mental health professional. In preparing cases for waivers due to forms of hardship, I find that clients hold back relevant or vital information,. You have to trust the people who are trying to help you. Good luck to you in your waiver for hardship application.
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