USCIS Issues Proposed Guidance on ‘Extreme Hardship’ and Expansion of the Provisional Waiver Program

By Attorneys Ben Loveman & Nancy E. Miller

Two recent developments in the world of ‘extreme hardship’ waivers will allow many more applicants to apply and should result in a higher proportion approval for well-prepared applications.  First, USCIS recently announced that the provisional waiver process will be made available to all persons who have an immigrant visa available regardless of the petitioner’s status. This proposal significantly expands eligibility to apply for the provisional waiver which was previously limited to beneficiaries of immediate relative visa petitions, essentially spousal or parental-child petitions (not including adult children) from U.S. citizens.  Under the new regulation all persons with an approved petition and available visa, regardless of visa category will be eligible to participate in the provisional waiver program if otherwise eligible.  Of course, obtaining a provisional waiver still requires establishing extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.

The second change involves how USCIS will judge ‘extreme hardship’ and is seen by many experts as a sign that USCIS may be relaxing the ‘extreme hardship’ standard. On October 7, 2015 USCIS disseminated a draft policy memorandum which, if made effective, will significantly impact the way the agency makes decisions on applications for ‘extreme hardship’ waivers.The new policy would impact all types of waiver application including waivers for unlawful presence-including provisional waivers which were discussed above-, for misrepresentation and for criminal convictions.

This new policy should be of particular interest to persons who have filed for waivers in the past and had their applications denied or to persons who have not filed waiver applications because they were worried that they would not be able to establish the required level of ‘extreme’ hardship.  Of course, it will also be beneficial to all new waiver applicants going forward. Before turning to the particulars of the proposed new policy it will be useful to have a little background on the ‘extreme’ hardship waiver and when it is required.

To be eligible for permanent residency in the United States a person must be admissible under the Immigration and Nationality Act (INA).  The INA lays out multiple potential grounds that will make a person inadmissible.  Some of these grounds include having made a material misrepresentation (like lying about one’s marital status, or using an altered visa or passport to enter the country), having been unlawfully present in the United States for over six-months and then departing the country, and certain criminal convictions.  However, these and other grounds of inadmissibility can sometimes be waived.  Most such waivers require a showing “extreme hardship” to qualifying relativesincluding U.S. citizen or Lawful permanent resident family members.

The challenge in extreme hardship waiver cases is establishing that the hardship to a qualifying relative rises to the level of ‘extreme.’  USCIS has long recognized that some hardship will result if a family member is not allowed to stay in the U.S. with their loved ones or if U.S. citizen or lawful permanent relatives must relocate to a foreign country to be close to their spouse, parent or child.   This being the case USCIS has said that ‘extreme hardship’ is hardship that rises above and beyond the level of hardship which is typically to be expected under either scenario.

Importantly, the new policy provides direct guidance to USCIS officers about factors which would ‘strongly suggest; and support a finding of ‘extreme hardship’.  Some of these factors are hardships which experienced attorneys have raised with USCIS for years but which USCIS previously did not recognize as justifying a finding of ‘extreme hardship’.  Some of the factors identified include substantial displacement of care of applicant’s children, Travel Warnings against travel to country of residence, active military duty of qualifying relative, medical disability, and prior grant of asylum or refugee status.

Extreme hardship can still be established absent one of these factors and, crucially, the mere presence of one of these factors may not be sufficient in and of itself. As always obtaining approval of an ‘extreme hardship’ waiver will come down to carefully and thoroughly documenting all issues relevant to hardships in any particular case.  Often, even when applicants have strong equities in their case they have their waivers denied because of a failure to present their cases effectively to USCIS.  This is why quality representation can be the key to obtaining a waiver.

In coming weeks we will provide additional information from this new proposed policy on ‘extreme hardship’ determinations. If you or a loved one believe you have inadmissibility issues, you should consult a knowledgeable and experienced immigration lawyer.