USCIS Releases Draft for Extreme Hardship Policy Guidance for Comment

On October 6, 2015, the U.S. Citizenship and Immigration Services (USCIS) posted several sections of the USCIS Policy Manual, for public input and comments. The USCIS Policy Manual is the agency’s centralized online repository for USCIS’s immigration policies.

One of the sections is a draft extreme hardship policy guidance for public comment. This guidance clarifies how USCIS would make extreme hardship determinations once the guidance is finalized.

You may submit comments by email until November 23, 2015. Include: Volume 9, Part B: Extreme Hardship (DRAFT) as the Subject Line of your email; refer to a specific portion of the document; explain the reason for your recommendation; and include relevant and supporting data, information or authority. Click here for more information about the Comment Submission Process.

Here are some highlights:

ADJUDICATION STEPS

The reviewing officer should complete the following steps when adjudicating a waiver application that requires a showing of extreme hardship to a qualifying relative:

QUALIFYING RELATIVE

This is usually an immediate relative (spouse, unmarried minor child or parent) who is a U.S. citizen or legal permanent resident. Read our blog post regarding waivers here, for more clarification.

• Qualifying relative need not be visa petitioner
• Petition survives death of qualifying relative. This includes related applications, such as waivers for inadmissibility
• Hardship experienced by a person who is not a qualifying relative (including applicant) can itself be the cause of hardship to a qualifying relative

EXTREME HARDSHIP FACTORS

Common consequences of deportation (family separation, economic detriment, difficulties readjusting to life in new country, lack of quality educational opportunities, inferior quality of medical services and facilities, inability to pursue chosen profession abroad) alone would be an insufficient basis for an extreme hardship finding. However, the sum of these common consequences together could meet the extreme hardship standard.

Below is a list of factors and considerations to be used by adjudicators in the Qualifying Relative Extreme Hardship determination. These are non-exclusive and are merely examples of factors that can support findings of extreme hardship. Other factors not discussed could support a finding of extreme hardship, under a totality of the circumstances.

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For guidance on suggested documentation to submit with your waiver application, click here.

For examples of possible successful scenarios, please click here.

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Factors: U.S. Family Ties
Considerations:  

• Ties to family members living in the U.S., including age, status and length of residence of any children 
• Responsibility for the care of family members in the U.S., particularly children, the elderly and disabled adults 
• Presence or absence of ties abroad including how close the qualifying relative is to these family members 
• Nature of relationship between applicant and qualifying relative, including special facts that would either aggravate or lessen the hardship 
• Age, length of residence in the U.S., prior residence in country of relocation, if any 
• Military service 
• Impact on the cognitive, social, or emotional well-being of a qualifying relative who is left to replace the applicant as caregiver for someone else, or impact on the qualifying relative (for example, child or parent) for whom such care is required 

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Factors: Social and Cultural
Considerations:  

• Loss of access to U.S. legal system (child support, maintenance, custody and visitation) 
• Fear of persecution 
• Laws and social practices in home country that would punish qualifying relative for Western values or for being in the U.S. 
• Access to social institutions 
• Discrimination based on gender, gender identity, sexual orientation, religion, race, national origin, ethnicity, citizenship, age, political opinion, or disability 
• Comparison of ties to U.S. vs. country of relocation 
• Assimilation to U.S. culture (language, skills and acculturation) 
• Difficulty and expense of travel/communication to maintain ties between qualifying relative and applicant, if the qualifying relative does not relocate 
• Ability to communicate in foreign language and time and difficulty to learn 
• Availability and quality of educational opportunities 

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Factors: Economic
Considerations:  

• Financial impact of applicant’s departure including the applicant’s or the qualifying relative’s ability to obtain employment in the country to which the applicant would be returned 
• Cost for education in foreign language and/or culture and special education or training for children 
• Financial losses due to sale of home or business, or termination of professional practice 
• Decline in standard of living (unemployment, underemployment and lack of economic opportunities) 
• Cost of care for family members (children, elderly, ill or disabled) 
• Ability to recoup losses 

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Factors: Health Conditions and Care
Considerations:  

• Significant health conditions and unavailability of suitable medical care in the country 
• Health conditions and the availability and quality of any required medical treatment in the country, including length and cost of treatment 
• Psychological impact of relocation or separation 
• Psychological impact on qualifying relative due to applicant’s suffering 
• Civil unrest or generalized levels of violence, ability of country to address crime/high rates of murder/other violent crime, environmental catastrophes like flooding or earthquakes, and other socio-economic or political conditions that jeopardize safe repatriation or lead to reasonable fear of physical harm 
• Temporary Protected Status (TPS) designation 
• Danger Pay for U.S. citizens stationed in the country of nationality 
• Withdrawal of Peace Corps from the country of nationality for security reasons 
• DOS Travel Warnings issued for the country of nationality 

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The waiver application process is lengthy and complicated. If you are an immediate relative of a US citizen looking to apply for a waiver, it is important to seek the advice of an immigration attorney to evaluate the best course of action and present your case in the clearest and best possible light.