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Extreme Hardship Waiver Guidance to be Revised by USCIS — What’s New and What’s Next

On October 7, 2015 USCIS released draft policy guidance regarding the “extreme hardship” threshold that Waiver of Inadmissibility applicants must reach. The draft guidance is now in its comments period, which closes on November 23, after which time USCIS will formalize its new policy. The new policy will clarify and consolidate the extreme hardship standard which adjudicators use in deciding whether to grant U.S. immigration benefits.

By way of background, admissibility is a requirement for U.S. entry and immigration benefits. A person is “inadmissible” if something in their past renders them ineligible for U.S. entry or immigration benefits. In such scenarios, the individual can overcome their inadmissibility if the U.S. Citizenship and Immigration Services (“USCIS”) approves a waiver of the ground of inadmissibility. A waiver can be granted if the USCIS adjudicator believes that “extreme hardship” would result to a qualifying relative if the waiver is not granted.

For years, immigration attorneys and officers have struggled to find a truly clear and consistent understanding of what constitutes extreme hardship. Naturally, any time an individual is to be separated from family, “extreme hardship” – as the term is commonly used – can be presumed. However, in practice, the “extreme hardship” that must be shown in order to receive a waiver for U.S. immigration is a much higher standard. Indeed, mere familial separation is not enough.

The recent draft guidance is important as it seeks to clarify and consolidate guidance as to how USCIS will make extreme hardship determinations. Federal Courts, the Board of Immigration Appeals and earlier USCIS guidance have created the standards that have been established over time, however it is thought that the final version of the draft memorandum will consolidate the past policy. The nascent memo already reminds us of the 2009 Neufeld/Scialabba/Chang USCIS Memorandum on Unlawful Presence, which consolidated decades of disparate inadmissibility guidance into a helpful and concise guide.

Here are six key takeaways from the October 7, 2015 Extreme Hardship Draft Guidance:

  • Aggregation

The guidance clarifies that establishing extreme hardship does not require showing that one single hardship, taken alone, rises to the level of “extreme.” Instead, all relevant hardship factors “must be considered in the aggregate, not in isolation.”

  • Non-Qualifying Relative Hardship

While the definition of a “qualifying relative” is fixed and defined by status, the guidance proposes that hardship to non-qualifying relatives can also be considered. The extreme hardship to the non-qualifying relative would be considered with respect to the hardship caused to the qualifying relative.

  • Separation vs. Relocation

Under the current standard, the waiver applicant is required to show Extreme Hardship to the qualifying relative in two scenarios: 1) due to separation if the Waiver Applicant is removed from the U.S.; and 2) due to relocation if the qualifying relative is forced to reside in the Waiver Applicant’s country.Under the Draft Guidance Memo, the Waiver Applicant can show that the extreme hardship standard has been met by showing that either separation or relocation would cause extreme hardship. However, a threshold must first be met: the applicant would need to first prove that it is reasonably foreseeable that the qualifying relative would relocate abroad if relocation hardship is being argued.

  • Presumption

It is hoped that the final version of the Policy Memorandum will contain reference to instances under which adjudicators can presume that the hardship standard has been met, thus alleviating inconsistent adjudications and providing clarity to applicants and their families. In the guidance’s current draft form, reference as to such a presumption is not present.

  • Special Circumstances

According to the Draft Guidance Memo, the following circumstances would act as strong factors favoring an Extreme Hardship finding, including if the qualifying relative:

  1.  Is an asylee or refugee;
  2. Has a U.S. government-recognized disability;
  3. Would face substantial disruption to childcare caused by the separation;
  4. Is on active military duty; or
  5. If the Department of State has issued travel warnings for the Waiver Applicant’s home country
  • What’s next?

USCIS will review the public comments until November 23, and then formalize its final policy memorandum with respect to the extreme hardship standard. As we previously wrote, USCIS has also released a proposed rule to expand the Provisional Waiver. The comments period for that proposed rule ended on September 21st. It is possible that the extreme hardship memorandum will be released to coincide with the final expanded provisional waiver rule. Final guidance as to the extreme hardship standard, the Provisional Waiver expansion, or both, will be most likely be released late this year or early next year.




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