If you have a U.S. Citizen spouse, but you entered the US illegally, you may still be eligible to become a resident and get a green card if you apply for a provisional waiver (I-601a). The waiver requires that you show your U.S. citizen spouse will suffer “extreme hardship” if you are not approved. Hardship could be many things, including health concerns, financial considerations, educational opportunities, personal considerations, separation from US family members, and other special factors such as language or cultural barriers.
Approval of an application for waiver of inadmissibility under the INA equates to a waiver of a bar to admission upon the applicant by Section 212(a)(9)(B)(i)(II) of the INA. Congress provided for such a waiver but limited its application to requiring, in each case, a showing that the ban imposes an extreme hardship upon a qualifying family member. The key term in the provision is “extreme” and thus only in cases of great actual or prospective injury to the U.S. Citizen or lawful permanent resident alien relative will the bar be removed. Common results of the bar such as separation, financial difficulties, etc., in themselves are insufficient to warrant approval of an application unless combined with more extreme impacts.
The question of whether “extreme hardship” exists depends upon the facts and circumstances particular to each case. In determining whether or not “extreme hardship” exists, the BIA noted in Matter of Anderson that the following factors are relevant: “age of the subject; family ties in the United States and abroad; length of residence in the United States; conditions of health; conditions in the country to which the alien is returnable – economic and political; financial status – business and occupation; the possibility of other means of adjustment of status; whether of special assistance to the United States or community; immigration history; position in the community.” Matter of Anderson, 16 I&N Dec. 596, 597 (BIA 1978). Additionally, in Matter of Cervantes, the BIA listed some factors to be considered in determining extreme hardship to the United States Citizen/Legal Permanent Resident relative. Some of the factors include: (1) the presence of LPR or USC family ties to the U.S.; (2) the qualifying relative’s family ties outside the U.S.; (3) the country conditions in the country of relocation and the qualifying relative’s ties to that country; (4) the financial impact of departure from the U.S.; (5) significant health conditions, particularly when tied to unavailability of suitable medical care in the country of relocation. Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999). According to Matter of O-J-O-, one of the more recent BIA cases to speak on the matter, relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists. In each case, the Board held, the trier of fact must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation. Such ordinary hardships, while not alone sufficient to constitute extreme hardship, are considered in the assessment of aggregate hardship, according to the BIA. Matter of O-J-O-, 21 I & N Dec. 381 (BIA 1996).