Role of Medical Hardship in Obtaining Approval of Form I-601A Application for Provisional Unlawful Presence Waiver


Since March of last year, when USCIS began allowing individuals to apply for waivers of unlawful presence, our offices have been applying and successfully obtaining these waivers on behalf of our clients. Each case we have presented has had some element of medical hardship, although not necessarily medical hardship as we would think of it in the traditional sense. We want to share with other practitioners our experience with cases involving mental health hardship, a unique case involving substance abuse as a medical hardship, and cases involving what most would consider very minor medical hardships.

Because emotional hardship affects an individual's mental health, we consider this a medical hardship. Extenuating circumstances we have seen include a U.S. Citizen who was the victim of sexual abuse and other individuals with established medical histories of depression. The mental health of individuals with prior histories of depression would be adversely affected by the departure of their loved ones and this in and of itself is a medical hardship. We always argue that these scenarios go above and beyond the typical person who would be saddened by a prolonged separation with a loved one. Depression is a very serious medical condition and hence our argument is one of medical hardship. We also include an evaluation from a mental health professional (preferably a doctor, psychiatrist, or psychologist) explaining how the prolonged departure of the beneficiary would affect the mental health of the U.S. Citizen.

We also received an approval for the spouse of an individual who had previously suffered from substance abuse. In that case, the U.S. Citizen had an established medical history of substance abuse but since marrying the undocumented spouse, the U.S. Citizen has been clean and sober. We argued medical hardship if the spouse had to leave the U.S. because the U.S. Citizen would likely turn back to substance abuse, a clear medical hardship.

Finally, we find that because many different circumstances can combine to create hardship, no medical hardship is too small. In cases where the U.S. Citizen plans to follow the beneficiary to the home country, we have included evidence of the U.S. Citizen's asthma and have compared the air quality and available medical services in the foreign country to the U.S. We have also included documentation related to the U.S. Citizen's past broken bones and other past injuries and argued both that the injury requires at least some follow up care which is unavailable in the foreign country and also that if a similar injury occurred in the foreign country the U.S. Citizen could not receive the same level of medical treatment. In our offices, no medical hardship is too insignificant for inclusion because all of these factors can be combined to document a case.

As attorneys we typically think of medical hardship in a very traditional sense, a U.S. Citizen has a serious medical issue, cannot receive treatment in the beneficiary's foreign country and needs beneficiary here for caretaking. However, if we think outside of the box and use creative arguments, we can extend medical hardship to include cases where a U.S. Citizen's mental health would be affected, cases of prior substance abuse, and even cases with minor medical issues like asthma or past injuries. No medical hardship is too insignificant for inclusion.

Reprinted with permission.

About The Author

Kaushik Ranchod Kaushik Ranchod has spoken at conferences and the radio advising small to fortune 500 companies and individuals on the latest developments in immigration law. Mr. Ranchod was admitted to practice before the California Supreme Court in 1998. He was a delegation member of the American Immigration Law Foundation (AILF) for San Francisco and is a member of the American Immigration Lawyer's Association (AILA). Mr. Ranchod served on the Board of Directors for the South Asian Bar Association in Northern California. Attorney Ranchod graduated from University of Southern California as valedictorian of his major (first in his class) and was added to the Trojan Wall of Fame. He obtained his Juris Doctor from University of California, Hastings, in San Francisco.

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