By Texas Board Certified Immigration Attorney, Ruby L. Powers
December 30, 2016
On December 5, 2016, the United States Citizenship and Immigration Services (USCIS) published new policy clarifications regarding provisional waivers, making it easier for individuals to navigate the process of submitting waivers.
The policy guidance issued by USCIS explains and consolidates the extreme hardship standard that USCIS Officials must use in determining whether to grant the waiver. Here are four changes that the new standards have brought forth:
- Aggregating Hardships
- It clarifies that factors, individually or in the aggregate, can be sufficient to meet the hardship standard. In other words, one sole factor will not be determinative of the extreme hardship, applicants can present several factors, and taken together they can add up to extreme hardship.
- Separation or Relocation
- Before officials required waiver applicants to demonstrate that the qualifying relative would suffer extreme hardship if they were to relocate to the applicant’s country, and they were to remain in the United States separated from the applicant. The new requirement allows an applicant to establish extreme hardship to a qualifying relative who intends to either relocate to the country where the applicant will reside, or separate from the applicant.
- Hardship to Other Non-Qualifying Relatives
- Typically children are not qualifying relatives for the purposes of obtaining a provisional waiver. However, the new guidance allows for the USCIS Officer to take into account the indirect hardship that the non-qualifying relative, for example a child, will have on the qualifying relative. This is also known as derivative hardship.
- Particularly Significant Factors
- USCIS has also set out some particularly significant factors that can be a basis on what could result in extreme hardship. The following are the factors given:
- If the qualifying relative was previously granted Iraqi or Afghan Special Immigrant Status, T Nonimmigrant Status, or Asylum or Refugee Status.
- The existence of this circumstance can usually demonstrate the significantly heightened risk that relocation to the country from which he or she received protection could result in retaliatory violence, persecution or other danger to the qualifying relative.
- Qualifying Relative or Related Family Member’s Disability
- The United States governments must have made a formal disability determination, and the applicant must show that the services available to the disabled individual in the country of relocation are unavailable or significantly inferior to those available in the United States.
- Qualifying Relative’s Military Service
- If the qualifying relative is an Active Duty member of any branch of the U.S. armed forced, denial of the applicant’s admission can cause psychological harm that can affect military preparedness, and this can rise to a level that would constitute extreme hardship.
- Department of State (DOS) Travel Warning
- If can demonstrate that the country of relocation is currently subject to a DOS country-wide travel warning and the qualifying relative would face significantly increased danger if they were to relocation that country with the applicant.
- Substantial Displacement of Care of Applicant’s Children
- Depending on the facts of your case, if can demonstrate that either continuing one’s existing caregiving duties under new circumstances, or assuming someone else’s caregiving duties can be enough to rise to the level of extreme hardship.
Given these clarifications on what USCIS is looking for to determine extreme hardship if the applicant is denied entry into the United States, now is the best time to apply for a provisional waiver. If you believe you qualify for this relief, or have questions, please contact our office to schedule a consultation.
Source Used: USCIS Policy Manuel (Volume 9- Waivers)
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