New guidance for what is extreme hardship

New Guidance for what is Extreme Hardship

In the past I have written extensively on the provisional unlawful presence waiver. I prefer the name State-Side Waiver since it clearly states its goal, to apply for a waiver inside the U.S. and before departing for your consular interview, but immigration didn’t take my advice. The point of most waivers is to overcome an inadmissibility to the U.S. and still achieve a green card. The standard for waiver is Extreme Hardship. In other articles, I have discussed

On November 20, 2014 President Obama announced a number of forthcoming changes to immigration policy. The most talked about is his Executive Actions on Deferred Action. In the past, I have advised that he also promised to provide clarity to the definition of Extreme Hardship. Well, now he is trying to do just that by issuing draft comments on the Extreme Hardship standard. This is not the final version. Only after the end of the comment period and after immigration reviews the comments, will a final version of the rules be issued.

What benefits do the Draft Comments on Extreme Hardship have?

The policy takes a number of theories and practices that have been addressed by the courts and puts it into one policy. The draft also expands on those principals and provides guidance to adjudicators on those standards:

  1. The concept of aggregation. The memos discusses how it isn’t one single hardship that must meet the standard, but adjudicators need to consider hardships under the totality of the circumstances (or in the aggregate). Moreover, extreme hardship to various qualifying relatives, in the aggregate, can meet the standard even if individually they don’t.
  2. We have argued that extreme hardship to non-qualifying relatives should be considered if it affects the qualifying relative. This is now a part of the memo’s policy. Let’s say husband is the immigrant and wife is the citizen. They have a child with a severe medical condition. The child, by herself, is not considered. However, how the child’s condition will affect mom (the qualifying relative) is a factor to be considered. What medical treatment is available in father’s home country? How will mom cope if she stays in the U.S. with the sick child?
  3. Using the example above, today an applicant must show extreme hardship both husband (immigrant) is separated from his wife (U.S. citizen) when he relocates but she stays in the U.S. AND extreme hardship if the entire family relocates to his home country. The draft memo now says you need to show only one of the two, but only after you show that one you describe is the one you will likely chose.
  4. A series of special factors in favor of extreme hardship: immigrant granted asylum, the U.S. government determined the qualifying relative (or a member of the household) is disabled, if the qualifying relative is in active military duty, if Department of State has issued traveling warning to the applicant’s home country, or substantial disruption to childcare to the beneficiary and her family.

What is the memo missing?

The memo unfortunately doesn’t provide circumstances where a presumption of Extreme Hardship is established. The special factors are a good first step, but they don’t go as far as what was promised in the November 20, 2014 memo. Circumstances showing a presumption would provide actual and constructive guidance for both the adjudicators and applicants. This would go a long way in avoiding the inconsistencies we as immigration attorneys have observed in how Extreme Hardship waivers are decided around the country. We hope that the final rules will include them.

What’s to come?

USCIS is accepting comments until November 23, 2015. USCIS will then review the comments submitted and will issue the final guidance. In addition, there was a comment period that just ended for the expansion of the Provisional Unlawful Presence Waiver. We hope to see significant changes to both programs to the benefit of immigrants who want to get the green cards through this proves.

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