On October 7, 2015, USCIS released draft guidance on what constitutes “extreme hardship” for purposes of an immigration waiver. The much-anticipated guidance is a component of the Administration’s executive actions on immigration announced in November 2014. Many had hoped that the guidance, and its potential to make waivers available to more people, could help remove obstacles to obtaining lawful permanent resident status. Indeed, last year, DHS Secretary Johnson directed the agency to provide guidance about the meaning of “extreme hardship” in order to provide broader use of this legally permitted waiver. While these guidelines are not yet in effect – USCIS is accepting comments on the proposals until November 23 – it remains to be seen if the final guidance will achieve the goal of “broader use” of the waiver.

As background, the immigration laws contain several waivers that allow noncitizens to overcome certain bars to admission (such as having unlawful presence in the United States) where certain qualifying, family members would suffer “extreme hardship.” The immigration statute, however, does not define the term “extreme hardship,” and over the years, the agency has failed to apply the hardship standard consistently.  

In issuing the draft guidance, USCIS states that its goal is to consolidate disparate adjudication policies by providing direct guidance to USCIS officers about factors that “strongly suggest” and favor a finding of extreme hardship. The following are the key issues addressed in the proposal:

Aggregation – The draft guidance states that any relevant hardship factor must be considered in the aggregate, not in isolation. Thus, it is not necessary for an applicant to show that one single hardship, taken in isolation, rises to the level of extreme.

Hardship to Nonqualifying Relatives – The draft guidance establishes that hardship to a nonqualifying relative may also be considered if it causes hardship to the qualifying relative.

Separation & Relocation – Significantly, under the new draft guidance, an applicant can meet the extreme hardship standard by showing either separation or relocation. Presently, an inadmissibility waiver applicant is required to demonstrate extreme hardship both if the qualifying relative were to remain in the United States and the foreign national is removed from the U.S. (separation) and if the qualifying relative would depart the U.S. and reside in the applicant’s country of origin with the applicant (relocation). Under the proposal, if the applicant is attempting to show extreme hardship based on relocation, the applicant must show that it is reasonably foreseeable that the qualifying relative would be removed from the United States. If arguing for extreme hardship based on separation, the applicant would have to show that it is reasonably foreseeable that the qualifying relative would remain in the United States.

One place where the guidance falls short is that it fails to include a list of situations where a presumption of extreme hardship exists, i.e., situations that automatically would result in a finding of hardship.  DHS Secretary Johnson actually directed the agency in November 2014 “to consider criteria by which a presumption of extreme hardship may be determined to exist.” Instead, the draft guidance offers the term “special circumstances” and provides a list of “strong factors” that weigh heavily in favor of finding extreme hardship. These include: (1) if the qualifying relative has been granted refugee or asylee status; (2) if the qualifying relative has a formal U.S. government disability determination; (3) if the qualifying relative is on active military duty; (4) if the Department of State has issued a travel warning for the applicant’s country of origin; or (5) if the qualifying relative would face substantial disruption to childcare for the applicant or his or her family.

While the draft is a step in the right direction, it does not go far enough to fulfill the agency’s promise of waivers that are more broadly available. Moreover, the true test will be what the final guidance looks like and how these standards are implemented by adjudicators.