Proposed rules ease burden for extreme hardship waivers

The USCIS just published proposed rules and policy guidance that could make it easier for non-immigrants to qualify for extreme hardship waivers. Under several immigration provisions, non-immigrants who would otherwise be required to leave the US and would not be able to get a green card can get a waiver because of extreme hardship. However, the rules about what constitutes extreme hardship and when they apply have not been clear. The proposed guidance addresses these problems. These changes are now open for public comment. If they are passed, it should result in many more waivers being approved. When does the extreme hardship waiver apply? Nonimmigrants may be considered inadmissible for a green card and get deported if they have committed certain criminal offenses, or other misconduct. However, the immigration rules recognize that in some cases, a nonimmigrant applicant should get a waiver because a qualifying relative will suffer “extreme hardship” if the applicant is denied a visa. A qualifying relative is an applicant’s US citizen (or in some cases Legal Permanent Resident) spouse or parent. What are the changes in the proposed policy guidance?

- Separation or Relocation
Currently an applicant must establish that the qualifying relative will suffer extreme hardship if he/she remains in the US without the applicant and will suffer extreme hardship if he/she relocates to the applicant’s home country. The applicant must prove extreme hardship in both scenarios. The proposed policy change will allow an applicant to establish extreme hardship by showing the qualifying relative would suffer extreme hardship in either scenario but not both. This change cuts the burden of proof in half.
- Burden of Proof
The policy guidance states the applicant must prove that, “more likely than not” extreme hardship will result. This is a fairly low burden of proof requiring only a 51% chance that the qualifying relative will suffer extreme hardship.
- Aggregating Hardships
If there is no individual factor in a case that rises to the level of extreme hardship then any relevant hardship factors must be considered in the aggregate – that is, the total circumstances must be taken into account. In addition, hardships to multiple qualifying relatives must also be looked at in the aggregate. If the applicant has a US citizen wife and mother then the hardships to the wife and mother must both be considered together.
- Non-Qualifying Relative
The applicant must establish hardship to a qualifying relative but hardship to non-qualifying relatives may be considered insofar as it affects a qualifying relative. For instance, if the applicant’s children will suffer hardship, then that hardship may be considered since it will directly cause hardship to the applicant’s spouse. Hardship the applicant personally will suffer may also be considered insofar as it will directly cause emotional hardship for the spouse or parent.
- Extreme Hardship Factors
The policy guidance provides a list of factors, but states that an officer should consider any and all factors that the applicant presents as hardship. Some of the relevant factors include:
1. Family ties and the impact of separation or relocation on those family members. Special consideration is given to children, elderly, or disabled family members.
1. Social or cultural impact of relocation to a foreign country.
1. Loss of access to the US Courts, such as inability of the applicant to enforce or initiate child support payments, visitation agreements, or other family law matters.
1. Country conditions including whether the home country of the applicant has been designated for Temporary Protective Status (TPS).
Special Circumstances Strongly Suggesting Extreme Hardship The policy guidance provides a list of special circumstances that will weigh heavily in favor of a finding of extreme hardship. These special circumstances include:
1. If the qualifying relative was previously granted asylum or refugee status.
1. If the qualifying relative or family member has been deemed disabled by the Social Security Administration or other US Government Agency.
1. If the qualifying relative is on active military duty.
1. If the Department of State issues a travel warning to notify travelers of the risks of traveling to the Applicant’s home country.
1. If there will be substantial displacement of care of the Applicant’s children.
There are other changes in the proposed policy guidance not detailed here. In addition, these rules are in a comment period and are subject to change before they become final. We will update you with the final provisions when they go into the effect. In the meantime, contact us if you are facing a removal proceeding.
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By Ruthie Sanchez | Published October 26, 2015 | Posted in Visas | Tagged extreme hardship waivers, immigration procedures, nonimmigrants, visas

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Q: What is a work permit?
A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, an employee needs a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get undocumented immigrants work permit. But you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit a person must make an application for legal status in this country on some other basis. So don’t let your employees get gulled into believing that it’s easy to get a work permit by some lawyer or hustler on the street corner. Call us for an interview and so we can explain to your employees how the process and the immigration laws in the United States really work.

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