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USCIS Draft Guidance Memo on Extreme Hardship

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USCIS recently released a Draft Guidance Memo regarding the “extreme hardship” threshold that must be established for Inadmissibility Waivers.  The guidance is now in its comments period which ends on November 23, 2015.  At that time USCIS will review the public comments and formally finalize the policy memo.  The finalized policy memo will be released late this year or in the beginning months of 2016.

Admissibility is a requirement for US entry and to receive immigration benefits.  If an individual is deemed inadmissible thus ineligible to receive immigration benefits, he or she can overcome inadmissibility by receiving an approved Waiver of Inadmissibility by USCIS.  To qualify for a Waiver of Inadmissibility an individual must establish that a qualifying relative of theirs would suffer “extreme hardship” if the inadmissible individual is removed from the United States.

While this seems like an easy threshold to satisfy as anytime an individual is separated from his or her family each party experiences extreme hardship, a clear and consistent understanding of what constitutes extreme hardship has never been established.  USCIS’s recently released extreme hardship guidance will hopefully clarify how USCIS will make extreme hardship determinations by consolidating previous USCIS guidelines, Federal Court and B.I.A. decisions  into a helpful and concise guideline.

 

Although the USCIS extreme hardship Draft Guidance Memo has not been formally finalized here are a few takeaways:

First, it clarifies that extreme hardship does not require a single showing of hardship alone.  Instead, all factors establishing the hardship must be aggregated together and not viewed in isolation.

Second, it proposes that hardship to non-qualifying relatives may also be considered under the perspective that the extreme hardship to the non-qualifying relative would be considered in the context of the hardship caused to the qualifying relative.

Third, it lists a number of factors regarding the qualifying relative that will strongly support a favorable showing of extreme hardship such as whether the qualifying relative is an asylee or refugee; has a US government-recognized disability; would face substantial disruption to childcare caused by the separation; is on active military duty; and if the Department of State has issued travel warnings for the applicant’s home country.

Fourth, once the applicant initially proves that it is reasonably foreseeable that the qualifying relative would relocate abroad the applicant can then show that the extreme hardship standard has been met by establishing that relocation would cause extreme hardship rather than establishing that relocation and separation would cause extreme hardship.  As the current standard stands the applicant must show extreme hardship to the qualifying relative due to separation if the applicant is removed from the United States and due to relocation if the qualifying relative is forced to reside with the applicant in his or her home country.

Lastly, it may refer to a presumption under which specific instances if met may automatically be presumed that the extreme hardship standard has been met.  This would help to make adjudications of extreme hardship more consistent.  While this is currently not directly within the Draft Guidance Memo, a number of comments have been made during the comment period requesting that presumptions be included in the new guidelines.  Again, the comment period ends on November 23, 2015.

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