USCIS Guidance on Waivers Based on Extreme Hardship

On October 21, 2016, the U.S. Citizenship and Immigration Services (USCIS) released the updated version of the extreme hardship policy section of its policy manual. This section guides USCIS adjudicators on determining extreme hardship to qualifying relatives for discretionary waivers of inadmissibility. The guidance becomes effective December 5, 2016 and supersedes any related prior USCIS guidance. This update to the policy manual is the finalized version of the changes proposed in October 2015, as discussed in the MurthyDotCom NewsBrief, USCIS Proposed Manual on Waivers Based on Extreme Hardship (21.Dec.2015).

Overview of Inadmissibility

A foreign national may be inadmissible (i.e. ineligible to enter the United States, adjust status from within the U.S., or apply for certain other immigration benefits) for a variety of reasons. Common grounds of inadmissibility include criminal grounds, fraud or misrepresentation, and immigration violations, such as accumulating certain periods of unlawful presence.

Background on Discretionary Waivers of Inadmissibility

With few exceptions, a foreign national who is inadmissible may apply for a nonimmigrant waiver, sometimes called a 212(d)(3) waiver, based on relatively broad and flexible criteria. See the MurthyDotCom NewsBrief, Obtaining a Waiver for a Nonimmigrant (29.Sep.2014), for more details on this type of waiver.

On the other hand, if an inadmissible person wishes to apply to become a lawful permanent resident (LPR, or “green card” holder), one generally can only obtain a waiver by showing “extreme hardship” that will be suffered by the foreign national’s qualifying U.S. citizen (USC) or LPR relative/s. Generally, the qualifying relative must be a USC or LPR spouse or parent, but for certain grounds of inadmissibility, a USC or LPR child may also be used. Regardless of the qualifying relative/s being used for this type of waiver, however, the focus is primarily on the extreme hardship that would be experienced by this relative, and not the impact it would have on the foreign national who is requesting the benefit.

Hardship Must be “Extreme”

There are essentially two parts to any claim of extreme hardship: (1) the hardship the qualifying USC or LPR relative would face if kept apart from the foreign national applying for the waiver; and (2) the hardship that would arise should the waiver be denied and the qualifying relative forced to relocate abroad to be with the applicant. In almost all situations, some hardship will exist if the foreign national is kept apart from the qualifying relative. As such, the USCIS emphasizes that, to be considered extreme, the foreign national must demonstrate “… that refusal of admission would impose more than the usual level of hardship that commonly results from family separation or relocation.”

Extreme Hardship Dependent on Totality of Circumstances

The USCIS notes in the guidance that the adjudicating officer must consider all factors and consequences in their totality and cumulatively when assessing whether a qualifying relative will experience extreme hardship either in the United States or abroad. Whether hardships are considered extreme is a discretionary determination that is made on a case-by-case basis.

Factors to Consider in Determining Extreme Hardship

The new policy guidance provides a non-exhaustive list of factors that USCIS may consider when making extreme hardship determinations. The adjudicating officer must consider whether any factor set forth individually rises to the level of extreme hardship under the totality of the circumstances. If any factor alone does not rise to the level of extreme hardship, the officer must then consider all factors together to determine whether they cumulatively rise to the level of extreme hardship. The list includes:

• Family ties
• Social and cultural impact
• Economic impact on the qualifying relative
• Health conditions and impact on care for both the qualifying relative and the applicant
• The country conditions for where the applicant would relocate if not granted the waiver

Particularly Significant Factors for Extreme Hardship

The guidance also highlights circumstances that are often likely to support findings of extreme hardship, including:

• Qualifying relative or related family member’s disability
• Qualifying relative’s military service
• Substantial displacement of care of the applicant’s children

Waiver Does Not Replace Other Green Card Requirements

Having a qualifying relative needed for a hardship waiver has no impact on the standard requirements that still must be met in order to apply for a green card. For instance, this waiver does not change the fact that one’s priority date must be current for most case types in order to apply for an immigrant visa, if abroad, or file an adjustment-of-status application (form I-485) if already in the United States.

Conclusion

Waivers based on extreme hardship to a qualifying relative tend to be complex, highly personalized, and fact-intensive. Those in need of applying for such a waiver are encouraged to schedule a consultation with a Murthy Law Firm attorney.

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