We do a fair number of hardship waivers in our office each year, and I am frequently asked by my clients how to write a good hardship letter. While many attorneys have different styles for putting together a hardship waiver application, most attorneys will agree that the letter is one of the most important pieces of the case.
The difficult part about a hardship letter is that the attorney shouldn’t write it. While your attorney knows you and the legal facts of your case, the purpose of the hardship letter is to detail the types of hardship that somebody will suffer. This letter will be far better done by the client. Generally speaking, I review drafts of hardship letters and make suggested edits. Sometimes, this may happen several times just to get one letter done well.
In most hardship cases, the government is looking to what type of hardship a U.S. citizen or lawful permanent resident will suffer if a deportation is ordered or if a visa is denied. This is a very important and extremely powerful concept to understand. Hardship waivers are not in place to ask forgiveness or “perdón” for being here unlawfully. Instead, the waiver will need to show what type of hardship one’s spouse, parents, or children, depending on the waiver type, would suffer if the visa is denied or deportation is ordered.
I typically give my clients a list of items that I would like them to discuss in their letter. The strongest letter will come from the qualifying relative, or the person that is likely to suffer harm, but letters from others referencing the hardship are also helpful.
In a hardship letter, I ask my client to answer the following questions:
- What types of health issues, if any, do you suffer from?
- What types of ongoing or specialized treatment do you require?
- What types of treatment are available to you in the destination country?
- What is the quality of treatment available to you in the destination country?
- How long do you expect to be in treatment for your medical condition(s)?
- What types of financial considerations do you have that complicate your life?
- What are you and your spouse’s current ability to care for your family?
- What are your future employment opportunities both here and in the destination country?
- What are pay rates and costs of living like both here and in the destination country?
- Would you suffer any losses due to the sale of your home or business?
- Would you or your spouse suffer the loss of a professional practice?
- What types of declines in your standard of living would you suffer?
- What would travel costs be like for you and your children to travel to visit your spouse in the destination country if you are separated?
- What would travel costs be like for you and your children to travel home to visit family if you are living in the destination country?
- What ability do you have to recover any short-term losses created by the separation or move to the destination country?
- What expenses do you incur for caring for other loved ones, such as elderly relatives, sick parents, etc.?
- What are the special education needs or other training needs of dependent children, and what is the availability for services in the destination country?
- How would educational opportunities be affected?
- Would you or your spouse lose the opportunity to seek higher education?
- How does the quality and scope of education in the destination country compare to here?
- How would a requirement to be educated in a foreign language or culture impact your educational opportunities?
- Would you lose any education advancement, time, or grade level, due to the move?
- What other special issues arise with education? Are there any considerations related to specialized training, education programs, or internships?
- What emotional or mental health issues have been concerns for you in the past?
These questions generally lay out a roadmap for writing an excellent letter detailing hardship that would be suffered. They come from a framework established by precedent case law and authority on hardship issues.
A smaller, yet still relevant, piece of the puzzle is the discretionary component of the waiver. Generally speaking, we must demonstrate that the immigrant merits the favorable exercise of discretion. In other words, even if the hardship factors are present, does the applicant actually deserve to have their waiver approved? To reach this question, we are going to ask a series of questions, as well. Some of those questions might be:
- What are the applicant’s family ties to the United States?
- How long has the applicant lived in the United States?
- What types of hardship might the applicant suffer if removed from the United States?
- What types of hardship might the applicant’s family suffer if removed from the United States?
- Has the applicant ever served in the United States Armed Forces?
- What is the applicant’s employment history?
- What property or business ties does the applicant have here?
- What value or service does the applicant provide to the community?
- How has the applicant been rehabilitated from a prior criminal issue?
- What other evidence exists of the applicant’s good moral character?
Waivers are generally the most intense and difficult part of a case. They are also generally the most expensive part. Although these lists of questions seem overwhelming, spending extra time to consider the questions and put forth thoughtful answers is extraordinarily important. A well-written hardship letter by the qualifying spouse or parent is typically the key to winning the case. Naturally, we will want evidence to back up and support these, but this is the basic framework to writing a winning hardship letter.
Again, by answering all of these questions, we can usually help our clients edit and shape their hardship letters to become important and key pieces of evidence in their overall waiver application packet.
Nothing in this blog post should be construed as legal advice. It is important to seek qualified and competent legal advice in seeking any type of waiver before immigration authorities.