Clarification of the Extreme Hardship for Waivers of Inadmissibility effective December 5, 2016

Powers Law Group, P.C.

November 21, 2016

By Board Certified Immigration Attorney Ruby L. Powers

Clarification of the Extreme Hardship for Waivers of Inadmissibility effective December 5, 2016

The USCIS issued policy guidance on determinations of extreme hardship to qualifying relatives required for certain waivers of inadmissibility. This guidance becomes effective on December 5, 2016.

This clarification is a positive for both clients and practitioners because it promotes consistency in the adjudication of waivers and will also assist practitioners in preparing waivers that will likely get approved because the standard has been clarified.  As we have seen in the past, as the submission of waivers increases, USCIS hires and trains adjudicators quickly. Now with more clarified guidelines, it will lead to more consistent results all around.  We are grateful for this much awaited clarification.

In this policy, the USCIS:

  • Lists the waivers of inadmissibility that require a showing of extreme hardship to one or more qualifying relatives.
    • These include waivers of inadmissibility for:
      • 3- and 10-year unlawful presence bars;
      • Crimes involving moral turpitude, multiple criminal convictions, prostitution and commercialized vice, and certain serious criminal offenses for which the foreign national received immunity from prosecution;
      • A controlled substance violation relating to a single offense of simple possession of 30g or less of marijuana; and
      • Certain types of immigration fraud or willful misrepresentations of material fact
    • Clarifies that an applicant may establish extreme hardship to a qualifying relative who:
      • Intends to either relocate to the country where the applicant will reside, if denied admission; or
      • Separate from the applicant and remain in the U.S.
    • Clarifies that for hardship to qualify as “extreme,” it must involve suffering or loss that is greater than the hardship that usually results from denials of admission.
      • This means that extreme hardship involves showing more than just:
        • Family separation; economic detriment; difficulties of readjusting to life in the new country; the quality & availability of educational opportunities abroad; inferior quality of medical services & facilities; and ability to pursue a chosen employment abroad.
      • Clarifies that extreme hardship is dependent on the individual circumstances of each particular case.
      • Provides a non-exhaustive list of factors that USCIS may consider when making extreme hardship determinations, including:
        • Family Ties and Impact
        • Social and Cultural Impact
        • Economic Impact
        • Health Conditions & Care
        • Country Conditions
      • Discusses particularly significant factors that often weigh heavily in support of finding extreme hardship to qualifying relatives, including:
        • (1) Qualifying Relative Previously Granted Iraqi or Afghan Special Immigrant Status, T Nonimmigrant Status, or Asylum or Refugee Status
        • (2) Qualifying Relative or Related Family Member’s Disability
        • (3) Qualifying Relative’s Military Service
        • (4) DOS Travel Warnings
        • (5) Substantial Displacement of Care of Applicant’s Children
      • Clarifies that factors, individually or in the aggregate, may be sufficient to meet the extreme hardship standard.
      • Clarifies that hardship to two or more qualifying relatives may rise to the level of “extreme” in the aggregate, even if no single qualifying relative alone suffers hardship that by itself is severe enough to be “extreme.”

 

 

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