USCIS Issues Policy Guidance on Determinations of Extreme Hardship to Qualifying Relatives Seeking Waivers
Certain inadmissibility grounds can bar an prospective immigrant from being admitted to the United States. However, many of these (for example, the 3-and-10-year inadmissibility bars for unlawful presence, bars for crimes involving moral turpitude, and bars for certain types of immigration fraud) can be waived if an applicant can show that “refusal of admission ‘would result in extreme hardship’ to one or more designated relatives.” U.S. Citizenship and Immigration Services. USCIS Policy Manual. [Washington, District of Columbia] :U.S. Citizenship and Immigration Services. Print. Applicants seeking to prove extreme hardship must demonstrate that “refusal of admission would impose more than the usual level of hardship that commonly results from family separation or relocation.” Id. Until recently, the process by which USCIS balances competing policy considerations to determine whether extreme hardship warrants a waiver of inadmissibility has been opaque.
Effective December 5, 2016, the USCIS has updated its policy manual to provide guidance on how it makes extreme hardship determinations. These updates provide some clarification of factors USCIS considers in determining whether hardship rises to the level of “extreme.” Factors considered include, but are not limited to, “family separation,” “economic detriment,” “difficulties of readjusting to life in the new country,” “the quality and availability of educational opportunities abroad,” “inferior quality of medical services and facilities,” and “ability to pursue a chosen employment abroad.” Id. Additionally, USCIS clarified that officers must “consider all factors and consequences in their totality and cumulatively.” Id. If an individual would experience multiple “common” consequences which individually might not rise to the level of extreme hardship, they may cumulatively be considered “extreme.” For example, the hardship to a person who would be separated from his family and also suffer from lack of access to advanced medical care for a health condition may be considered “extreme” when USCIS considers the totality of his circumstances.
Additionally, the updated guidelines emphasize the value our country places on preserving family unity. The guidelines “clarify[y] that hardship to two or more qualifying relatives may rise to the level of ‘extreme’ in the aggregate, even if no single qualifying relative alone suffers hardship that by itself is severe enough to be ‘extreme.’” Id. For example, if a woman is denied admission to the United States and would be separated from two qualifying relatives, her mother and her aunt, and this separation would result in the “ordinary” consequences of family separation, not any additional suffering or harm, the hardship experienced by the mother and aunt may be considered, in the aggregate, to rise to the level of “extreme.”
If you have questions about how these updated guidelines may apply to your case, please contact Elliott Immigration Law, LLC at (404) 890-0372 to set up a consultation to discuss specific information.