New York Lawyer's Legal Updates

Extreme Hardship For Immigration Purposes

Author: New York Immigration lawyer Alena Shautsova

Extreme hardship” is a standard that an applicant for an immigration waiver has to meet in order for his/her immigration waiver application to be approved. One would need a waiver of he/she is inadmissible (cannot receive a visa or green card) due to various violations of Immigration laws: unlawful presence, entry without inspection, conviction of certain crimes, or fraud/misrepresentation. A waiver is a form of discretion by the United States government that erases the inadmissibility problem and allows a person to become “legal.”

Certain statutory provisions authorize waivers of particular inadmissibility grounds in cases where an applicant demonstrates that refusal of admission “would result in extreme hardship” to one or more designated relatives (“qualifying relatives”), such as specified U.S. citizen or lawful permanent resident (LPR) family members.

According to the USCIS policy manual:

“The ​term​ ​“extreme hardship” is not ​expressly ​defined in the ​Immigration and Nationality Act (​INA​)​, in ​Department of Homeland Security (​DHS​)​ regulations, or in case law​ ​(although ​DHS regulations ​and certain ​Board of Immigration Appeals (BIA)​ decisions​ ​have provided ​some relevant ​guidance with respect to ​what may constitute extreme hardship ​in certain contexts). ​A​s the U.S. Supreme Court ​recognized​ in ​INS v. Jong Ha Wang​, “[t]​hese​ words are not self-explanatory, and reasonable men could easily differ as to their construction. But the [INA] commits their definition in the first instance to the Attorney General [and the Secretary of Homeland Security] a​nd [their] delegates.​”​

Therefore​, “[t]he Attorney General [and the Secretary of Homeland Security] and [their] delegates have the authority to construe ‘extreme hardship’ narrowly should they deem it wise to do so.” Conversely, “[a] restrictive view of extreme hardship is not mandated either by the Supreme Court or by [the BIA] case law.”

As such, nobody actually has a specific definition of “extreme hardship.” It may be one, extreme medical hardship that a qualifying relative would experience, or it maybe a number of “smaller” hardship in the aggregate that together rise to the level of an extreme hardship.

“Ultimately, the officer must be persuaded that it is more likely than not that a qualifying relative will suffer extreme hardship resulting from the denial of admission​.” USCIS Policy Manual.

It should be noted that the hardship can be showed if the person either relocates to the applicant’s country or if the applicant is separated with the qualifying relative.

It should be noted that the hardship can be showed if the person either relocates to the applicant’s country or if the applicant is separated with the qualifying relative.

Importantly, in certain situations when a qualifying relative is deceased, it is still possible to establish extreme hardship to him/her under INA 204(l). Section 204(​l​) also applies in the case of ​widow​s and widowers​ of U.S. citizen​s​ ​whose pending or approved petition was converted to a Petition​n for ​Amerasian​, Widow(​er​), or Special Immigrant (​Form I-360​)​, including if ​the​ petition later reverts to a ​Form I-130​ petition based ​on ​a subse​qu​e​nt ​remarriage

22 October 2016
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