Proving Hardship in Marriage Cases

An immigrant's past unlawful presence in the U.S. (defined as "illegal entry & illegal stay" or "legal entry & overstay") can ruin marriage plans when a U.S. citizen is trying to help legalize his or spouse's status. Many immigrants have no idea about the 3 and 10 yr. bars for prior unlawful presence. The three year bar states that any immigrant who is the U.S. for 6 mo or more without a visa (unlawfully here) and then leaves the U.S., the immigrant usually cannot come back to the U.S. for 3 years. It's much worse if the immigrant has stayed for 1 year or more without lawful presence; it's a 10 year bar once the immigrant leaves the U.S. The only exception to these harsh penalties for unlawful presence is if the immigrant is married to a U.S. citizen or lawful permanent resident or has a U.S. citizen child and either the spouse or child will suffer "extreme hardship" if the immigrant is not allowed to re-enter the U.S.


But, what is “Extreme Hardship” in 3 & 10 Year Bar Cases?

In each case, to win, it must be determined that a combination of hardships takes the case beyond those hardships ordinarily associated with deportation, e.g., economic detriment due to loss of a job or efforts ordinarily required in relocating or adjusting to life in the native country. An analysis of hardship to U.S. citizen or LPR spouses and/or USC or LPR parents must be careful and individualized

Relevant factors include:

• 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/qualifying relative would relocate, such as economic and political;
• financial status – business and occupation;
• the possibility of other means of adjustment of status for alien;
• whether of special assistance to the United States or community;
• alien’s immigration history;
• alien’s and qualifying relative’s position in the community;
• foreign languages spoken by alien and qualifying spouse or parent
  ability of the USC or LPR spouse or parent to relocate to be with the alien (employment opportunities, relocation adjustment, foreign language(s) spoken; financial hardship in relocating);
• financial hardship if stays in US without alien
  the existence of qualifying spouse or parent’s property or business ties in the U.S.
  
  Note: The more recent the acquired equities, the less weight they may be given; and the younger the marriage, or the wealthier the qualifying spouse (or indirectly – the alien), the better educated the qualifying spouse (or indirectly - the alien), or more employable the qualifying spouse in the country of the alien, the less likely there will be a finding of extreme hardship.