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Proving Extreme Hardship – Holding the Government to a Standard of Law

On Behalf of | Dec 27, 2015 | Firm News

Extreme Hardship doesn’t have to be so hard.  On October 7, 2015, USCIS shared its draft “extreme hardship” policy memo, created with the goal of better defining the standard applied to various types of waivers.  The draft memo was happily received more than ten months after President Obama announced the endeavor with various other, more popular strides like the expansion of DACA and proposed creation of Deferred Action for Parents of Americans and Lawful Permanent Residents, or “DAPA.”

An extreme hardship waiver may be required where someone has been in the US unlawfully for more than six months, has helped a family member enter the United States illegally, or has certain criminal convictions, among other acts.  To win an extreme hardship waiver, an applicant must show that a US citizen or lawful permanent resident spouse or parent will suffer extreme hardship if the benefit is not granted.  An applicant can show this in two situations: 1) What hardship will the family member suffer if separated from the applicant; and, 2) What hardship will the family member suffer if forced to relocate abroad with the applicant?

In the past, USCIS often required an applicant to show extreme hardship in both situations – both if the applicant and qualifying relative were separated between two countries and if the qualifying relative joined the applicant abroad.  The most notable achievement proposed in the memo changes that requirement, so an applicant need only prove hardship in one situation, so long as it is “reasonably foreseeable” to occur.  For example, if it is reasonably foreseeable that a US citizen husband would relocate to El Salvador with his wife, and the conditions in El Salvador pose extreme hardship, then USCIS will approve the waiver without further analyzing whether the spouse will experience extreme hardship if he were to remain in the US alone.

Another win includes the policy’s acknowledgement that hardship suffered by non-qualifying relatives, such as children or parents-in-law, can count indirectly.  For example, a wife might suffer extreme emotional hardship without an applicant because her child has learning disabilities or medical conditions.  For years, USCIS tended to turn a blind eye to such indirect suffering.

Finally, USCIS identifies lists of factors and considerations for adjudicating officers to reference when reviewing a waiver.  USCIS even identifies “special circumstances that strongly suggest extreme hardship,” such as where a qualifying relative faces relocation to a country for which the Department of State has issued a travel warning or for which has been designated for TPS.  The policy memo’s lists are not exhaustive nor provide a guarantee for approval, but they are certainly instructive, just as much for a USCIS employee as an applicant or attorney.

The formal release date of the policy memo is not yet known.  However, WLG attorneys are already using it to argue their cases successfully.  If you would like to tap into the vast experience that WLG has had with extreme hardship waivers, please contact us for a free consultation.