USCIS Proposed Manual on Waivers Based on Extreme Hardship

On October 07, 2015, a proposed update of the U.S. Citizenship and Immigration Services (USCIS) online policy manual was released. This is a centralized policy manual, with new online sections added sporadically. The latest proposed addition pertains to grounds for filing discretionary waivers of inadmissibility, based on a showing of extreme hardship to a qualifying relative.

Purpose of Online USCIS Policy Manual

In January 2013, the USCIS announced plans to move to an online, centralized manual of immigration policies. The purpose was to make it easier for all to understand the USCIS decision making process. More information on the USCIS policy manual is available in the MurthyDotCom NewsBrief, USCIS Releases its First Ever Comprehensive Online Policy Manual (22.Jan.2013). In the recent proposed policy manual update, the USCIS has clarified the decision-making process for extreme hardship determinations in the context of discretionary waivers of inadmissibility.

Background on Discretionary Waivers of Inadmissibility

Foreign nationals may be inadmissible (i.e. ineligible to enter the United States, adjust their status from within the U.S., or apply for certain other immigration benefits) for a variety of reasons. Inadmissibility means one is barred from immigration benefits either permanently or for a specific period of time. Common grounds of inadmissibility include criminal grounds, fraud or misrepresentation, and immigration violations, such as accumulating certain periods of unlawful presence. Several provisions of the law, however, provide for discretionary waivers (forgiveness) of some inadmissibility grounds.

Such waivers are based upon showing the extreme hardship that will be suffered by a foreign national’s qualifying relative/s if the foreign national cannot enter or remain in the U.S. Generally, the qualifying relative/s must be a U.S. citizen or lawful permanent resident (LPR) spouse, parent, or child (each ground of inadmissibility has specific qualifying relatives). In these cases, the foreign national files an application with the USCIS (form I-601), explaining how the qualifying relative/s would suffer extreme hardship if the foreign national is not permitted to reside permanently in the United States.

In almost all situations, some hardship will exist if the foreign national is denied admission. As such, the USCIS has clarified that, to be considered extreme, the hardship must “exceed that which is usual or expected.” Whether hardships are considered extreme is a discretionary determination that is made on a case-by-case basis.

Aggregating Hardships

Family separation or relocation typically creates a variety of interconnected hardships. In establishing extreme hardship, it is not necessary to establish that one single factor, by itself, will rise to the level of extreme hardship. Instead, the USCIS has indicated that all hardship factors will be taken in the aggregate to determine whether the qualifying relative’s hardship is extreme. For example, the loss of a job and lack of foreign language skills, without more, is generally insufficient to establish that a qualifying relative would suffer extreme hardship if s/he relocates abroad with the foreign national. However, these hardships, combined with the emotional trauma suffered as a result of the relocation and separation from one’s close family members in the U.S., may be sufficient to rise to the level of extreme hardship. Again, it is important to remember that whether hardships are considered extreme is a discretionary determination that is made on a case-by-case basis.

There may be situations in which no qualifying relative whose hardship, by itself, would rise to the level of extreme. However, the USCIS has stated that it is sufficient to establish that the hardship to two or more qualifying relatives, when taken in the aggregate, rises to the level of extreme. In such cases, there must be more than one qualifying USC or LPR relative who will each suffer hardship if the waiver is not granted.

Hardship on Non-Qualifying Relative or Foreign National

The hardships suffered by a non-qualifying relative do not meet the extreme hardship requirement. However, the USCIS notes that the hardship experienced by a non-qualifying relative is relevant to the extent that it causes hardship to the qualifying relative.

For instance, under the unlawful presence ground of inadmissibility, U.S. and LPR children are not considered qualifying relatives. Nonetheless, when the foreign national can establish that the qualifying relative parent of those children (i.e. the foreign national’s spouse) would experience emotional hardship from knowing that his/her children are suffering, extreme hardship potentially may be found. The USCIS similarly notes that even hardship to the foreign national is relevant to the extent that it causes hardship to the qualifying relative.

Special Circumstances May Suggest Extreme Hardship

In its proposed update to the online policy manual, the USCIS has determined that there are certain circumstances that generally are beyond the qualifying relative/s control and will ordinarily cause suffering or harm greater than normal hardships. The USCIS indicates that when these circumstances are present, it will weigh heavily in favor of finding of extreme hardship. These special circumstances include the qualifying relative being granted refugee or asylum status in the United States, the disability of the qualifying relative or a related family member, the qualifying relative’s U.S. military service, Department of State travel warnings against travel or residence in the country of relocation, and the substantial displacement of the care of the foreign national’s children. If one of these special circumstances is present, it must be supported by sufficient evidence and will go a long way toward a finding of extreme hardship.

The USCIS emphasizes that this list is not all-inclusive, and that other factors, even if they are different from those listed, can also be considered extreme. As such, foreign nationals should submit evidence of any and all hardships that will be suffered by the qualifying relative/s, if the waiver is not approved.

Medical Hardship

Many foreign nationals attempt to establish hardship due to medical problems suffered by the qualifying relative/s. Although such hardships must be supported by documentary evidence, the USCIS has indicated that medical records, such as test results, are difficult to decipher and may not be the strongest evidence to submit. Instead, submitting a detailed statement from the qualifying relative’s doctors, explaining the medical condition, is recommended.

Murthy Law Firm Successful with Extreme Hardship Cases

In hardship cases, all possible solutions and living situations must be explored. As such, when preparing hardship waiver applications, the Murthy Law Firm works with clients to analyze the medical, financial, cultural, emotional, educational, and other hardships that the qualifying relative would endure absent a waiver. At the Murthy Law Firm, analysis of these hardship factors, and their presentation as a compelling story of the life of the foreign national and qualifying relative/s is normal practice. Success in many such cases is common. In this way, we hope to place the USCIS in the shoes of the qualifying relative, and make it clear that s/he would suffer extreme hardship if the waiver is not granted.

Murthy Law Firm Helps Obtain Discretionary Waivers

As discussed, waivers of this nature are highly discretionary and fact specific. The USCIS policy manual provides important insight into how the USCIS will exercise its discretion. Even before the release of the proposed update to the policy manual, Murthy Law Firm attorneys have been preparing waiver applications that present and articulate many of the factors listed herein. Indeed, it is not uncommon that they present hardships suffered by non-qualifying children and explain specifically how their hardship is imputed to the qualifying relative parent.

Also, as explained previously, Murthy’s analyze available solutions and living situations and present all possible hardships to explain how, when factors are taken in the aggregate, the qualifying relative’s hardship is, indeed, extreme. This approach has led the legal team at the Murthy Law Firm to obtain many successful waiver applications for their clients.

Conclusion

Waivers are complex, highly personalized and fact-intensive. The Murthy Law Firm is pleased to help many clients obtain waiver approvals. The USCIS’s efforts in demystifying this process, and providing easily accessible guidance on the adjudication of waiver applications, is greatly appreciated. The USCIS Policy Manual should improve consistency in adjudications.

The Murthy Law Firm never reveals details of any case handled by our firm, nor the identity of any client, without first obtaining his/her express consent. We appreciate the generosity of our client in allowing us to use this case as an example to our readers. Please note that all cases are different. Even with cases that appear to be similar, past success does not guarantee a favorable result.

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