Wondering What "Extreme Hardship" Means for Immigration Waiver Purposes? USCIS Updates Its Policy Guidance

Clarifications and examples to help immigration waiver applicants establish extreme hardship to qualifying relatives.

In order to be admitted into the United States with a green card or visa, or receive various other immigration benefits, applicants must show that they are not "inadmissible." Inadmissibility is usually based on having committed crimes, been found to have a communicable disease of public health significance, or being unable to support oneself without government help. In some cases, however, inadmissibility can be overcome by applying for a waiver.

But many of the legally available waivers are conditioned on the applicant showing that refusal of the visa or green card would result in "extreme hardship” to one or more qualifying relatives, such as certain U.S. citizen or lawful permanent resident (LPR) family members. This naturally raises questions as to what "extreme hardship" is.

To address these questions, USCIS recently updated its Policy Manual, as described in an October, 21, 2016 Policy Alert. Some of the clarifications were actually quite predicatble; for instance, it has long been known that extreme hardship must "involve suffering or loss that is greater than the hardship that usually results from denials of admission."

Others were more helpful. Among the noteworthy asepcts of the changes are the following:

  • Applicants may show extreme hardship to a qualifying relative who plans to either move to the country where the applicant would live if denied U.S. admission or to remain in the United States, so long as the applicant demonstrates that the relocation or separation would result in extreme hardship. Applicants may, but are not required to, show that extreme hardship to a qualifying relative would result from both separation and relocation.
  • Hardship to two or more qualifying relatives may collectively rise to the level of “extreme,” even if no single qualifying relative alone would suffers hardship severe enough to be viewed as “extreme.”
  • With narrow exceptions, the applicant must show extreme hardship to a qualifying relative who is alive not only at the time the waiver application is filed, but by the time U.S. immigration authorities consider and make a decision on it.
  • Although hardship to the applicant or other non-qualifying relatives does not "count" by itself, it may be taken into account insofar as this suffering affects the applicants’ qualifying relatives. USCIS gives the example of an applicant who he suffers from a medical condition for which he would be unable to obtain necessary treatment in his home country, such that denial of the waiver and his visa or green card would have a significant emotional or financial impact on his U.S. qualifying relatives.

For further details, see Volume 9 Part B of the USCIS Policy Manual.