Immigration lawyers and their clients have been waiting years for USCIS to issue some clarity on the meaning of “extreme hardship” required in many waiver applications.  Waivers are additional applications required where a person is found to be inadmissible for a visa or green card, or removable from the US.  Waivers are like exceptions to grounds of inadmissibility or removability. Some grounds do not permit any waivers at all. The most common type of waiver application is one which requires showing that it would be an extreme hardship to a qualifying US Citizen or green card holding relative if the applicant/immigrant is not granted a visa or green card.  In order to prove extreme hardship to the qualifying relative (QR), the hardships must be viewed from two angles. One is the hardship the QR will face if the QR stays in the US and the immigrant cannot live here (or, the “separation” view point), and the other angle is if the QR chooses to live abroad with the immigrant (or the “relocation” view point).  On October 7, 2015, USCIS issued a proposed extreme hardship policy for public comment.  Comments are due until November 23, 2015 by writing USCIS directly:

Email all comments to ope.feedback@uscis.dhs.gov.  Include the following to make your comments clear:

• State the title of the relevant volume and section in the subject line of your message (in this case, Volume 9, Part B: Extreme Hardship (DRAFT));
• Refer to a specific portion of the document;
• Explain the reason for any recommended change; and
• Include data, information, or authority that supports the recommendation.

Historically, USCIS has applied the factors found elsewhere in the law, such as for the old “suspension of deportation” and “NACARA” cases, primarily because it never issued a specific regulation defining “extreme hardship” for the waivers that require such proof.  Suspension of deportation has been superceded by “cancellation of removal,” which actually has a higher standard of “extremely unusual hardship.” Nonetheless, USCIS has looked at a number of factors over the years in both NACARA, and suspension, and cancellation cases, and applies them both to the separation and relocation points of view:

-The QR’s family ties in the USA v abroad;

-The QR’s social ties in the USA v abroad;

-The QR’s economic situation in the USA v abroad (e.g., jobs, business ties, assets, debts, professional and career and educational opportunities or hardships);

-The QR’s religious ties/needs/potential discrimination in the USA v abroad;

-The QR’s language abilities for living abroad v USA;

-The QR’s psychological or emotional hardships and availability of treatment in the USA v abroad;

-The QR’s medical problems and availability of treatment in the USA v abroad;

-Country conditions abroad in the country of relocation.

Although American/green card holding relatives who are not designated QRs are not usually to be considered, it is often helpful to weave in their issues as they relate to or impact the QR’s hardships.  Nonetheless, although most waivers are granted, they are often granted and denied very inconsistently.

One of President Obama’s November 2014 Executive Actions was to solidify the adjudications of extreme hardship waivers so they are more consistent and so that applicants know exactly what they need to prove.  The new PROPOSED policy memo offers these changes and emphasizes certain key points:

1.  The policy reiterates long standing policy that not only must the applicant prove the QR will suffer extreme hardship, but that waivers are also granted in the exercise of discretion. This means that even if extreme hardship is shown, it is no guarantee of a waiver grant. The agency will balance the good facts against the bad facts in exercising its discretion to grant or deny.
2. The policy restates the burden of proof: The applicant has the burden of proving extreme hardship to the QR and that the case warrants a favorable exercise of discretion. The standard of proof is “preponderance of the evidence,” or that the evidence or hardship is “more likely than not” to be true.
3. The policy restates that every family facing a relative being denied a visa faces some hardships, so for extreme hardship to be shown, it must be more than the usual hardships families facing deportation would suffer.  However, extreme hardship need not be unusual, unique, exceptional or extremely unusual as is required for some other types of applications.
4. The proposed policy says that the applicant must show that the relocation or separation “would result in” extreme hardship to the QR where “would result in” means that: a) it is reasonably foreseeable that the QR would relocate and such relocation would more likely than not result in extreme hardship or b) it is reasonably foreseeable that the QR would not relocate and the family would be separated resulting in it being more likely than not extreme hardship to the QR, or c) both outcomes are foreseeable and would more likely than not result in extreme hardship.
5. The policy memo emphasizes that adjudicating officers cannot impose their own personal view points and that the decision to separate or relocate is very personal to each family and person.
6. The policy further emphasizes that whether the separation or relocation is “reasonably foreseeable” is predictive. Then, the next question is whether it is more likely than not to create extreme hardship to the QR.
7. A plan for care of children one way or the other is an important consideration and goes toward whether it is realistic that the child will or won’t remain in the USA.
8. The policy memo reiterates that no single factor can determine the outcome of a case, but that all of the factors presented by the applicant should be taken in the aggregate (collectively together). Applicants can show hardships to multiple QRs even if one QR would not experience enough hardship alone.
9. Fortunately, the new policy emphasizes that hardships to non-QRs can indeed be presented as they relate to the QR. In other words, the hardships to a non-QR relative can affect the overall hardships to the QR.  (Our firm has done this successfully over the years, but it is nice to see it in the policy memo.)
10. The policy memo states that the adjudicator must consider any factor the applicant presents even if not mentioned in prior case law.  This is good news, too, for it allows for applicants to be creative and submit all kinds of potential evidence of hardship. This is standard practice in our office.
11. The memo also states the adjudicator can consider other factors the applicant has NOT mentioned, such as Department of State Country Conditions Reports, prior findings of environmental, civil war or other factors giving rise to Temporary Protected Status designations for individuals from the same country.
12. The memo goes on to list examples as well as lists of potential qualifying factors factors that might not work alone or at all.  (pp 14-17)
13. The memo also lists some “special circumstances that strongly suggest extreme hardship” that might be beyond the QR’s control, or that give rise to particular suffering, and need not exist at the time of filing (but should after filing). Examples given include: a)  QRs previously granted asylum or refugee status; b) a formal designation of disability by Social Security or another agency of the QR, the QR’s spouse or a relative the QR cares for, and if no such designation, there is evidence of disability and/or the immigrant is shown to care for the person where it would be difficult to travel or get medical help abroad; c) QR on active duty military service; d) DOS warnings about travel to certain countries; e) displacement of care giving duties.  This firm has successfully used this type of evidence in cases we have submitted. Something I would like to see added to this list is the hardships faced by same sex/LGBT couples who had no chance of immigration prior to June of 2013 when DOMA was found to be unconstitutional. Many of these couples have been forced to live abroad together against their will, or may have violated immigration laws because there was no other choice to be together prior to that time.  This may fall under the “beyond the QR’s control” above, but it would be nice to give it a specific designation of “special circumstance” in this humble attorney’s opinion. Personally, I would like to see the medical hardships be less restrictive.  Most grantable cases need pretty severe medical or psychological hardships to the QR, but this memo also seems to help some with the disability designation being a special circumstance as well as for a non-QR. With that said, we have also had cases approved where the medical or psychological hardships were minimal or nonexistent but there were other factors that were extreme hardships instead and collectively.
14. Finally, the policy memo gives more examples of different kinds of cases, and useful types of evidence to present.

We are often asked by prospective clients whether they have a good case for an extreme hardship waiver.  It usually takes some time to explore all the potential hardships the QR and other relatives might face.  We conduct very extensive interviews and have our clients keep a journal or jot down notes as they go through their daily lives so they can recall the daily aspects of life that would be difficult without the immigrant family member or if they had to live abroad. We have found every case to be unique as to the hardships that are the most paramount and useful to the case.  Of course, we cannot guarantee outcomes, since even the adjudicators can vary with their interpretations of the evidence. If you would like an evaluation of your case, please call us at (206)282-2279.