Extreme hardship is a very malleable concept, and each individual case is considered on its own. For a long time, we have been hoping that the USCIS would issue regulations to provide concrete criteria on what constitutes extreme hardship. Unfortunately, these regulations are still not forthcoming. But on October 21, 2016 the USCIS announced that it is issuing policy guidance in the USCIS Policy Manual.
This new policy guidance becomes effective December 5, 2016. In this new policy guidance, the USCIS provides clarification on matters that were previously only found in case law and provides a non-exhaustive list of factors that USCIS may consider when making extreme hardship determination. But different from case law, the policy guidance also discusses particularly significant factors that often weigh heavily in support of finding extreme hardship to qualifying relatives. However, since this policy guidance is not yet in effect and the practical application of it is not yet known, this blog will continue to discuss extreme hardship based on prior guidance and case law.
In considering extreme hardship, the case law, both from the Board of Immigration Appeals and the U.S. Federal Circuit Courts of Appeal has said that the government must look at the case in two different ways: (1) How will the U.S. citizen’s (and now lawful permanent resident’s) relatives, whose hardship is to be considered, fair if they accompany the person applying for the waiver abroad, and, (2) secondarily, although not less important, how will they remain and force in the U.S. when separated from that person.
In the first instance (because this is a U.S. Citizen or permanent resident sometimes), if the legal relatives leave the U.S. with their parent or spouse, or their child, it could be an extreme hardship that they don’t speak the language and they have never been to that country. If they do speak the language, maybe it’s not fluently. They generally don’t have a right to work legally, and in many cases, children or young adults don’t have a right to go to school. Most of the time the family suffers a significant drop in their standard of living.
Also, they are leaving their U.S. families because many times the sponsor or petitioner are born here in the U.S. They are leaving their jobs, they are separated forcibly from their support networks, their friends, their neighbors, and their community at large. In proving extreme hardship, they are generally encouraged to show what their ties are with their community, to their relatives here, to show what happens if they are separated and must go to a foreign country.
If the U.S. citizen relative remains here – for example, a parent is going to let his or her spouse/waiver applicant go because they have young children here. When they are separated from their spouse, often the hardship will rise to the level of extreme because they have a medical condition that the spouse was helping them with, or the children have a medical condition that both spouses were dealing with. Or, in the totality of circumstances, the couple have been married for 25-30 years, and being separated now would give both an emotional and even psychological harm, a hardship that indeed could rise to the level of extreme hardship.
The analysis is very fact-specific when you are looking at extreme hardship. No one rule or one fact is going to say ‘that person has extreme hardship,’ because it all depends on what is going on. We have seen cases for example where the person has applied twice for an extreme hardship waiver and the hardship changed so much in five years that the first time they were nowhere near being approved, and then five years later, situations, life happens, factors develop more favorably for purposes of extreme hardship, and the I-601/I-601A is subsequently approved.
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