Guest Post: The USCIS Policy Manual’s Newly-Released Guidance on Extreme Hardship by Lily Axelrod

Posted on: November 30th, 2016
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[Lily Axelrod, Siskind Susser’s newest attorney, has just prepared this helpful rundown on the new hardship guidance from USCIS that I thought readers would appreciate. Thanks Lily!]

Questions and Answers:

The USCIS Policy Manual’s Newly-Released Guidance on Extreme Hardship

Last Friday, US Citizenship and Immigration Services (USCIS) revised its Policy Manual, publishing new guidelines for its officers applying the “extreme hardship” standard in waiver applications.

Read on for questions and answers about the new guidelines.

  1. What are these new guidelines for?

To enter the United States or become a Lawful Permanent, most applicants must meet a list of requirements collectively called “admissibility.” If an applicant is “inadmissible,” for example, because she has a disqualifying criminal conviction or past immigration violation, she may still succeed in her application if she can show that she is eligible for a waiver of inadmissibility.

Several common waivers of inadmissibility require the applicant to show that denial of the waiver would cause “extreme hardship” to the applicant’s US citizen or Lawful Permanent Resident relative.

Our laws and regulations do not clearly specify what “extreme hardship” is, or how a decision maker should evaluate whether a waiver applicant has proven her case.  USCIS’ updated Policy Manual explains how its officers should interpret the standard and adjudicate individual cases.

For the most part, the new guidelines are not a substantial departure from previously-released information about how USCIS officers and appellate courts understand the “extreme hardship” standard.[1]

For more information about the waivers of inadmissibility affected by these guidelines, please see Chapter 1 of the new guidelines , and some of our past articles:

 

  1. When do the new guidelines take effect?

On December 5, 2016.  USCIS has not announced whether it will only apply the new standards to applications submitted after December 5, or whether it might also apply the standard to applications submitted earlier, but adjudicated after December 5.

 

  1. What’s new in the guidelines?

The biggest change is that applicants can now focus on the most likely scenario if the waiver is denied: either a “relocation” scenario where the qualifying relative leaves the United States to live with the applicant, or a “separation” scenario where the qualifying relative remains in the United States.

Currently, applicants must show that the qualifying relative would likely suffer extreme hardship in both scenarios.  For example, if the applicant is Mexican and the qualifying relative is her father, the applicant currently must show that her father would suffer extreme hardship if he is forced to move to Mexico with her, and that he would also suffer extreme hardship if he remains in the United States without her.

Under the new policy, the daughter can submit evidence about what her father would actually choose (for example, a “credible statement” from her father explaining that he would definitely move to Mexico with rather than remain in the United States without his daughter).  Her application can then focus on the hardship to her father if he moves to Mexico.

Practically speaking, this is not a large change, because the USCIS officer still has broad discretion to request additional evidence about the alternative scenario if the application does not convince her that the father would, in fact, move to Mexico.

Unless there is an obvious reason that one scenario is dramatically more likely than the other (for example, the qualifying relative has a serious medical condition requiring treatment which would be completely unavailable in the applicant’s country, or the qualifying relative serves in the armed forces and is not free to travel), applicants and advocates should still thoroughly document both the “relocation” and “separation” scenarios to avoid unnecessary delays and requests for evidence.

 

  1. What’s disappointing about the new guidelines?

While USCIS recognizes that family separation or relocation to a foreign country is nearly always challenging, the agency continues to insist that applicants must show “more than the usual level of hardship.”

Advocates had hoped USCIS would recognize that although some types of hardship are very common, they can still be “extreme.” However, the agency maintains that “common consequences” of denied waivers cannot, alone, rise to the level of extreme hardship. These consequences include family separation, economic difficulties, challenges “readjusting to life in the new country,” “the quality and availability of educational opportunities abroad,” “inferior quality of medical services and facilities,” and challenges finding a job in the qualifying relative’s chosen profession.

Advocates including the American Immigration Lawyers Association had also hoped the agency would decide that certain situations would lead to a “presumption” of extreme hardship.  For example, AILA suggested that when the qualifying relative is a spouse and the couple has been married for over three years, or the couple has a US citizen child, USCIS should presume that there is extreme hardship.

USCIS declined to delineate any “presumptions” of hardship, instead designating a list of “particularly significant factors” which would “weigh heavily in support of finding extreme hardship.” These factors are:

  • The qualifying relative was previously granted certain statuses for vulnerable groups such as Iraqi or Afghan Special Immigrant Status, T Nonimmigrant Status for victims of trafficking, or asylum or refugee status for victims of persecution;
  • The qualifying relative or another family member has a severe disability;
  • The qualifying relative is a member of the US armed forces;
  • The Department of State has issued a severe travel warning for the applicant’s country of origin, suggesting that dangers there are so serious that US citizens should not travel anywhere in the country;
  • The applicant’s children, regardless of their citizenship or immigration status, would suffer serious disruption in their care.

 

  1. What’s reassuring about the new guidelines?

The policy manual reinforces and elaborates on the core idea that adjudicators should take a holistic, individualized look at the entire application in context, and apply generous standards in determining whether the applicant has met the burden of showing “extreme hardship” to her qualifying relative.

First, USCIS has confirmed that it uses the generous “preponderance of the evidence”standard.  In other words, the applicant must only convince the adjudicator that it is “more likely than not” that the qualifying relative would suffer extreme hardship, not that extreme hardship is certain or extremely likely.

USCIS has also confirmed that it will follow a line of Ninth Circuit cases holding that, when there is more than one qualifying relative (for example, a spouse and a parent), adjudicators should “add up” their hardship.   This allows USCIS to approve a waiver application where neither relative’s hardship alone rises to the level of “extreme hardship,” but considered in the aggregate, the total level of hardship is extreme.

USCIS has reminded us that while “common factors” such as lack of educational opportunities or lower quality medical care in the applicant’s home country cannot alone merit a finding of “extreme hardship,” “common hardship” factors considered in the aggregate and with other factors in context can still contribute to a finding of “extreme hardship.”

Finally, Siskind Susser commends USCIS for continuing to recognize the challenges facing same-sex couples and gender-nonconforming individuals by including an example scenario of a same-sex couple.   In its hypothetical, USCIS notes that same-sex couples may face extreme hardship when relocating to a country where “same-sex marriages are not recognized . . . same-sex conduct is illegal” and “societal discrimination and harassment . . . based on sexual orientation or gender identity” is common.

 

  1. How do these guidelines affect the “extreme hardship” standard in removal proceedings?

The USCIS policy applies only to Department of Homeland Security officials, who adjudicate waiver applications within the United States, as well as from individuals applying for visas at consular posts abroad.

Immigration judges, who are employees of the Department of Justice, also adjudicate waivers in removal (deportation) proceedings.  While USCIS’ policy manual does not bind immigration judges, they may still look to the manual for guidance in interpreting the “extreme hardship” standard consistently.

 

  1. How will these guidelines affect me?

If you are interested in coming to the United States or applying to be a Lawful Permanent Resident, a consultation with an attorney can help you evaluate whether you are inadmissible, and if so, whether there is a waiver available for your situation.

[1] The following resources offer more detailed information on how USCIS has been interpreting the standard: