How does a lawyer decide whether a case involves enough hardship to qualify for a waiver, such as a waiver of the J-1 foreign residence requirement on the basis of exceptional hardships to a U.S. citizen or permanent resident spouse and/or children?  An honest lawyer will never accept a case unless he believes it has a good chance to succeed.  Some cases obviously involve extreme levels of hardship, while others obviously do not.  But what about the many cases that are not obvious?  Lawyers traditionally try to decide based on published legal authority informed by instinct and experience.  Now there is a better way. 

Our friend and colleague, Maryland immigration lawyer Bruce A. Hake (http://www.ilw.com/hake) has recently invented a novel way to approach this problem, a quantitative tool for assessing hardship in immigration cases.  The system is based on an empirical analysis of his last 50 J-1 hardship waiver victories.  The first version of the system was published in the June 2002 annual conference proceedings of the American Immigration Lawyers Association. 

Under the “Hake Hardship Scale,” a prospective client’s family must face at least “11 points” of hardship to qualify for a waiver.  The system claims to accurately assess all possible hardship combinations by assigning a weighted score in just 10 categories.  The categories are as follows:

          A.       Three categories for persons involved in the case--

                                      1.       U.S. citizen spouse or child?  Five points for a U.S. citizen spouse or U.S. citizen child.  One point for each additional U.S. citizen child.

                                      2.       LPR spouse or child?  Four points for an LPR spouse.  Three points for an LPR child.  One point for each additional LPR child.

                                      3.       Third persons facing very serious hardships, who depend on the family?  Zero to five points.

B.       One category for the public interest--

                   4.       Significant public interest factors?  Zero to two points.

C.       And just six categories for specific hardship grounds--

5.       Medical hardships to spouse or child?  Zero to six points (per person as appropriate).

6.       Psychological hardships to spouse or child?  Zero to five points (per person as appropriate).

7.       Career or educational disruptions to spouse or child?  Zero to two points.

8.       Very serious financial hardships?  Zero or one point.

9.       Sociocultural hardships upon relocation to the home country?  Zero or one point.

10.     Significant risk of physical harm due to political or sectarian violence?  Zero to three points.

The article contains additional rules and suggestions for using the scale.  For example, a key thing is to focus on the hardship to the American relatives if they stay in the United States while the J-1 exchange visitor returns for two years to his home country.  The article emphasizes that one must be very conservative and skeptical about assigning points.  Mr. Hake has had remarkable success using this approach for deciding which cases to accept.

We don’t know whether the INS would ever officially endorse an approach like this.  But we’ve already found it useful in screening cases in our office and thought readers might be interested to hear of this unusual legal development.