Extreme Hardship Guidance

U.S. Citizenship and Immigration Services (USCIS) recently issued policy guidance that clarifies how the agency determines “extreme hardship” waivers. “Extreme hardship” is a legal term for the burden of proof an applicant must meet in order to qualify for certin immigration-related waivers. These waivers are applied for by persons seeking to overcome grounds of inadmissibility such as, but not limited to, a problematic criminal record or periods of unlawful presence inside the United States. People who are inadmissible are generally denied admission to the United States, the ability to adjust their status, and other immigration benefits. However, USCIS can excuse an individual’s inadmissibility and admit that individual into the United States if she can prove that refusal to admit her will cause specific United States citizen or lawful permanent resident (LPR) relatives “extreme hardship.”

“Extreme hardship” is not defined in the immigration code, corresponding regulations, or court decisions. Though it is generally accepted that for hardship to be “extreme,” it must exceed that which is usual or expected and must go beyond that which is normally associated with deportation. Over the years, the government has failed to apply the “extreme hardship” standard consistently. Therefore, this policy guidance is a welcome attempt to provide consistency and clarification of how “extreme hardship” determinations should be made USCIS.

The new policy guidance lists the waivers that require a showing of “extreme hardship” to one or more qualifying relatives, as well as the steps that must be taken to adjudicate these waivers. The guidance specifically states that an applicant must first prove her relationship to the qualifying relative or relatives, which are generally limited to her United States citizen or LPR spouse or parents. With few exceptions, extreme hardship to the applicant herself or her children is not a factor.

The guidance then clarifies that USCIS and the applicant must consider two different scenarios: whether extreme hardship would result from relocation or separation or both. Relocation involves the qualifying relative moving to the home country of the applicant; whereas, during separation, the qualifying relative remains in the United States after the applicant is removed to his or her home country. The applicant only needs to prove extreme hardship under one of these two scenarios.

Further, the guidance clarifies that extreme hardship is determined by examining the individual circumstances and factors of each case, and that factors individually or in the aggregate can support a determination of “extreme hardship.” The guidance includes a non-exhaustive list of factors that USCIS considers when determining “extreme hardship.” These factors fall into the following categories: (1) family ties and impact, (2) social and cultural impact, (3) economic impact, (4) health conditions & care and (5) country conditions. The guidance then elaborates on particularly significant factors such as, but not limited to, the previous immigration history, disability and/or military record of the qualifying relative.

The guidance also clarifies that hardship to more than one qualifying relative may meet the burden even if no single relative’s suffering would be considered “extreme hardship” on its own.

Finally, the guidance offers hypothetical scenarios with analysis of the related determination and relevant factors.

Please note: Extreme hardship waivers are complicated and burdensome. If you think you may need such a waiver, please contact an immigration attorney as soon as possible. Our experienced immigration attorneys can be reached at +1 855-428-3762.