Selected USCIS draft guidance concerning the adjudication of applications for those discretionary waivers of inadmissibility that require showings of “extreme hardship” to certain U.S. citizen or lawful permanent resident (LPR) family members of the applicant follows below.
Admissibility is generally a requirement for admission to the United States, adjustment of status, and other immigration benefits. Several provisions of the Immigration and Nationality Act (INA), however, authorize discretionary waivers of particular inadmissibility grounds for those who demonstrate “extreme hardship” to specified U.S. citizen or LPR family members (referred to here as “qualifying relatives”).
Each of these provisions conditions a waiver on both a finding of extreme hardship to a qualifying relative and the more general favorable exercise of discretion. All of these waiver applications are adjudicated by U.S. Citizenship and Immigration Services (and in some cases by the Department of Justice’s Executive Office for Immigration Review).
The various statutory provisions specify different sets of qualifying relatives and permit waivers of different inadmissibility grounds. They include:
- INA 212(a)(9)(B)(v) – This provision can waive the three-year and ten-year inadmissibility bars for unlawful presence. Eligible qualifying relatives include the applicant’s U.S. citizen or LPR spouse or parent.
- INA 212(h)(1)(B) – This provision can waive inadmissibility for crimes involving moral turpitude, multiple criminal convictions, prostitution and commercialized vice, and certain serious criminal offenses for which the foreign national received immunity from prosecution. It can also waive inadmissibility for controlled substance convictions, but only when the conviction was for a single offense of simple possession of 30 grams or less of marijuana. Eligible qualifying relatives include the applicant’s U.S. citizen or LPR spouse, parent, son, or daughter.
- INA 212(i)(1) – This provision can waive inadmissibility for certain types of immigration fraud. Eligible qualifying relatives include the applicant’s U.S. citizen or LPR spouse or parent.
Common Consequences of Inadmissibility
Common consequences of an applicant’s refusal of admission, in and of themselves, do not warrant a finding of extreme hardship. The BIA has held that these common consequences include, but are not limited to, the following:
- Family separation;
- Economic detriment;
- Difficulties of readjusting to life in the new country;
- The quality and availability of educational opportunities abroad;
- Inferior quality of medical services and facilities; and
- Ability to pursue a chosen employment abroad.
Even though these common consequences alone would be an insufficient basis for a finding of extreme hardship, they are still factors that must be considered when aggregating the total hardships to the qualifying relative.
When combined with other factors that might also have been insufficient when taken alone, even these common consequences might cause the sum of the hardships to reach the “extreme hardship” standard.
For example, if a qualifying relative is gravely ill, elderly, or incapable of caring for himself or herself, the combination of that hardship and the common consequences of a refusal of the applicant’s admission might well cause extreme emotional or financial hardship for the qualifying relative.
Examples of Factors that Might Support Finding of Extreme Hardship
|Family Ties and Impact||Presence of qualifying relative’s ties to family members living
in the United States, including age, status, and length of
residence of any children
|Responsibility for the care of any family members in the
United States, in particular children and elderly or disabled
|Presence or absence of qualifying relative’s ties outside of the
United States, including to family members living abroad and
how close the qualifying relative is to these family members
|Nature of relationship between the applicant and the
qualifying relative, including any facts about the particular
relationship that would either aggravate or lessen the
hardship resulting from separation
|Qualifying relative’s age|
|Length of qualifying relative’s residence in the United States|
|Length of qualifying relative’s prior residence in the country of relocation, if any|
|Military service of qualifying relative, where the stresses and
other demands of such service aggravate the hardship
ordinarily resulting from family separation
|Impact on the cognitive, social, or emotional well-being of a
qualifying relative who is left to replace the applicant as
caregiver for someone else, or impact on the qualifying
relative (for example, child or parent) for whom such care is
|Social and Cultural Impact||Loss of access to the U.S. courts and the criminal justice
system, including the loss of opportunity to request criminal
investigations or prosecutions, initiate family law proceedings,
or obtain court orders regarding protection, child support,
maintenance, child custody, or visitation
|Fear of persecution|
|Existence of laws and social practices in home country that
punish the qualifying relative because he or she has been in
the United States or is perceived to have Western values
|Access or lack of access to social institutions and structures
(official and unofficial) for support, guidance, or protection
|Social ostracism or stigma based on characteristics such as
gender, gender identity, sexual orientation, religion, race,
national origin, ethnicity, citizenship, age, political opinion, or
|Qualifying relative’s community ties in the United States and
in the country of relocation
|Extent to which the qualifying relative has assimilated to U.S.
culture, including language, skills, and acculturation
|Difficulty and expense of travel/communication to maintain
ties between qualifying relative and applicant, if the qualifying
relative does not relocate
|Qualifying relative’s present inability to communicate in the
language of the country of relocation, taking into account the
time and difficulty that learning that language would entail
|Availability and quality of educational opportunities for
qualifying relative (and children, if any) in country of
|Economic Impact||Financial impact of applicant’s departure on the qualifying
relative(s), including the applicant’s or the qualifying relative’s
ability to obtain employment in the country to which the
applicant would be returned and how that would impact the
|Qualifying relative’s need to be educated in a foreign
language or culture
|Economic and financial loss due to the sale of a home or
|Economic and financial loss due to termination of a
|Decline in the standard of living, including high levels of
unemployment, underemployment, and lack of economic
opportunity in country of nationality
|Ability to recoup losses|
|Cost of extraordinary needs such as special education or
training for children
|Cost of care for family members, including children and
elderly, sick, or disabled parents
|Significant health conditions and impact on the qualifying
relative, particularly when tied to unavailability of suitable
medical care in the country or countries to which the
applicant might relocate
|Health conditions of the applicant’s qualifying relative and the
availability and quality of any required medical treatment in
the country to which the applicant would be returned,
including length and cost of treatment
|Psychological impact on the qualifying relative due to either
separation from the applicant or departure from the United
States, including separation from other family members living
in the United States
|Psychological impact on the qualifying relative due to the
suffering of the applicant, taking into account the nature of
the relationship and any other relevant factors
|Country Conditions||Conditions in the country or countries to which the applicant
would relocate, including civil unrest or generalized levels of
violence, ability of country to address crime/high rates of
murder/other violent crime, environmental catastrophes like
flooding or earthquakes, and other socio-economic or political
conditions that jeopardize safe repatriation or lead to
reasonable fear of physical harm
|Temporary Protected Status (TPS) designation|
|Danger Pay for U.S. citizens stationed in the country of
|Withdrawal of Peace Corps from the country of nationality for
|DOS Travel Warnings issued for the country of nationality|
Special Circumstances that Strongly Suggest Extreme Hardship
The preceding list identifies factors that bear generally on whether a refusal of admission would result in extreme hardship to one or more qualifying relatives.
USCIS has also determined that the circumstances below would often weigh heavily in favor of finding extreme hardship. These sorts of special circumstances are beyond the qualifying relative’s control and ordinarily cause suffering or harm greater than the common consequences of separation or relocation.
An applicant who is relying on one or more of these special circumstances must submit sufficient evidence that such circumstances exist. As always, even when these or other special circumstances are present, the ultimate determination of extreme hardship is based on the totality of the circumstances in the individual case.
It must be emphasized that the special circumstances listed below are singled out only because they are especially likely to result in findings of extreme hardship. Many other hardships will also be extreme, even if they are very different from, or less severe than, those listed below. Further, even the factors discussed are not exclusive; they are merely examples of factors that can support findings of extreme hardship, depending on the totality of the evidence in the particular case. Other factors not not discussed could support a finding of extreme hardship, under a totality of the circumstances.
Eligibility for an immigration benefit ordinarily must exist at the time of filing and at the time of adjudication. Given the underlying purpose of considering special circumstances, a special circumstance does not need to exist at the time of filing the waiver request. As long as the qualifying relative was related to the applicant at the time of filing, a special circumstance arising after the filing of the waiver request also would often weigh heavily in favor of finding extreme hardship.
1. Qualifying Relative Previously Granted Asylum or Refugee Status
If a qualifying relative was previously granted asylum or refugee status in the United States from the country of relocation and the qualifying relative’s status has not been revoked, those factors would often weigh heavily in favor of a finding that relocation would result in extreme hardship.
As the family member of a foreign national who has been granted asylum or refugee status, the applicant might also face dangers similar to those that gave rise to the qualifying relative’s grant of asylum or refugee status. In such a case, the qualifying relative could suffer psychological trauma in knowing the potential for harm if the applicant returns to the country of nationality, particularly if the qualifying relative fears returning to that country even to visit the applicant, and could thereby suffer extreme hardship.
2. Qualifying Relative or Related Family Member’s Disability
If the Social Security Administration or other qualified U.S. Government agency made a formal disability determination for the qualifying relative, the qualifying relative’s spouse, or a member of the qualifying relative’s household for whom the qualifying relative is legally responsible, that factor would often weigh heavily in favor of a finding that relocation would result in extreme hardship.
Absent a formal disability determination, an applicant may provide other evidence that a qualifying relative or related family member suffers from a medical or physical condition that makes either travel to, or residence in, the relocation country detrimental to the qualifying relative or family member’s health or safety.
In cases where the qualifying relative or related family member requires the applicant’s assistance for care because of the medical or physical condition, that factor would often weigh heavily in favor of a finding that separation would result in extreme hardship to the qualifying relative.
3. Qualifying Relative’s Active Duty Military Service
If the qualifying relative (who might be a spouse or other qualifying relative) is on active duty with any branch of the U.S. Armed Forces, relocation will generally be unrealistic, because the qualifying relative ordinarily will not be at liberty to relocate.
If the applicant and the qualifying relative have been living together – for example, on a military base that accommodates families or in a private facility off base – the removal of the applicant can therefore create separation. Under those circumstances, the qualifying relative might well suffer psychological and emotional harm associated with the separation.
The resulting impairment of his or her ability to serve the U.S. military could exacerbate that hardship. In addition, even if the qualifying relative’s military service already separates him or her from the applicant, the applicant’s removal overseas might magnify the stress of military service to a level that would constitute extreme hardship.
4. DOS Warnings Against Travel to or Residence in Certain Countries
DOS issues travel warnings to notify travelers of the risks of traveling to a foreign country. Reasons for issuing a travel warning include, but are not limited to, unstable government, civil war, ongoing intense crime or violence, or frequent terrorist attacks. Travel warnings remain in place until the situation changes. In some of these warnings, DOS advises of travel risks to a specific region or specific regions of a country.
In other travel warnings, DOS does more than merely notify travelers of the risks; it affirmatively recommends against travel or residence and makes its recommendation countrywide.
These travel warnings might contain language in which:
- DOS urges avoiding all travel to the country because of safety and security concerns;
- DOS warns against all but essential travel to the country;
- DOS advises deferring all non-essential travel to the country; and/or
- DOS advises U.S. citizens currently living in the country to depart.
Generally, the fact that a qualifying relative who is likely to relocate would face significantly increased danger in the country of relocation would often weigh heavily in favor of a finding of extreme hardship. If the country of relocation is currently subject to a DOS country-wide travel exists and, therefore, that relocation would result in extreme hardship.
If the travel warning covers only part of the country of relocation, but the officer finds that that part is one to which the qualifying relative plans to return despite the increased danger (for example, because of family relationships or employment opportunities), then that fact would similarly tend to weigh heavily in favor of finding that relocation would result in extreme hardship.
Alternatively, if it is more likely than not that the qualifying relative would relocate in a part of the country that is not subject to the travel warning (either because of the danger in the area covered by the travel warning or for any other reason), the officer should evaluate whether relocation in the chosen area would itself result in extreme hardship to that qualifying relative.
Conversely, if the applicant were to return to this particular country but the qualifying relative would be more likely than not to remain in the United States, the separation might well result in psychological trauma for the qualifying relative.
5. Substantial Displacement of Care of Applicant’s Children
USCIS recognizes the importance of family unity and the ability of parents and other caregivers to provide for the well-being of children. Moreover, depending on the particular facts, either the need to assume someone else’s care-giving duties or the continuation of one’s existing care-giving duties under new and difficult circumstances can be sufficiently burdensome to rise to the level of extreme hardship for the caregiver. The children do not need to be U.S. citizens or lawful permanent residents for that to be the case.
At least two different scenarios can occur.
In one scenario, the primary or sole breadwinner is refused admission, and the caregiver, who is a qualifying relative, remains behind to continue the caregiving. The fact that the breadwinner’s refusal of admission would cause economic loss to the caregiver is not by itself sufficient for extreme hardship. Economic loss is a common consequence of a refusal of admission.
But, depending on the facts of the particular case, economic loss can create other burdens that in turn are severe enough to amount to extreme hardship. For example, if the qualifying relative must now take on the combined burdens of breadwinner and ensuring continuing care of the children, and that dual responsibility would threaten the qualifying relative’s ability to meet his or her own basic subsistence needs or those of the person(s) for whom the care is being provided, that dual burden would tend to weigh heavily in favor of finding extreme hardship. In addition, depending on the particular circumstances, the qualifying relative may suffer significant emotional and psychological impacts from being the sole caregiver of the child(ren) that exceed the common consequences of being left as a sole parent.
If the refusal of admission would result in a substantial shift of care-giving responsibility from the applicant to a qualifying relative, and that shift would disrupt family, social, and cultural ties, or hinder the child(ren)’s psychological, cognitive, or emotional development, or otherwise frustrate or complicate the qualifying relative’s efforts to provide a healthy, stable, and caring environment for the child(ren), the additional psychological and economic stress for the qualifying relative could exceed the levels of hardship that ordinarily result from family separation – depending, again, on the totality of the evidence presented. If that is found to be the case, such a consequence would tend to weigh heavily in favor of a finding of extreme hardship to the qualifying relative, provided the applicant shows:
- The existence of a bona fide parental or other care-giving relationship between the applicant and the child(ren);
- The existence of a bona fide relationship between the qualifying relative and the child(ren); and
- The qualifying relative would become the primary caretaker for the child(ren) or otherwise would take on significant parental or other care-giving responsibilities.
To prove a bona fide relationship to the child(ren), the applicant and qualifying relative should have emotional and/or financial ties or a genuine concern and interest for the child(ren)’s support, instruction, and general welfare. Evidence that can establish such a relationship includes:
- Income tax returns;
- Medical or insurance records;
- School records;
- Correspondence between the parties; or
- Affidavits of friends, neighbors, school officials, or other associates knowledgeable about the relationship.
To prove the qualifying relative either would become the primary caretaker for the child(ren) or relative needs to show an intent to assume those responsibilities. Evidence of such an intent could include:
- Legal custody or guardianship of the child, such as a court order;
- Other legal obligation to take over parental responsibilities;
- Affidavit signed by qualifying relative to take over parental or other care-giving responsibilities; or
- Affidavits of friends, neighbors, school officials, or other associates knowledgeable about the qualifying relative’s relationship with the children or intentions to assume parental or other care-giving responsibilities.would otherwise take on significant parental or other care-giving responsibilities, the qualifying relative’s relationship with the children or intentions to assume parental or other care-giving responsibilities.
Hypothetical Case Examples
Scenario #1: AB has lived continuously in the United States since entering without inspection 7 years ago. He and his U.S. citizen wife have been married for 4 years. If AB is refused admission, it is reasonably foreseeable that his wife would relocate with him. His wife is a sales clerk. A similar job in the country of relocation would pay far less. In addition, she does not speak the language of the relocation country, lacks experience in the country, and lacks the ties that would facilitate social and cultural integration and opportunities for employment. AB himself is an unskilled laborer who similarly would command a much lower salary in the country of relocation. The couple has no children.
Analysis: These facts alone generally would not favor a finding of extreme hardship. The hardships to the qualifying relative, even when aggregated, include only common consequences of relocation – economic loss and the social and cultural difficulties arising mainly from her inability to speak the language.
Scenario #2: The facts are the same as in Scenario # 1 except that now the couple has a 9-year old U.S. citizen daughter who would relocate with them if AB is refused admission. The child was born in the United States and has lived here her entire life. AB’s wife and daughter both have close relationships with AB’s wife’s U.S. citizen sister and brother-in-law, who are the child’s aunt and uncle, and this couple’s U.S. citizen children, who are the child’s cousins, as well as other members of the family. They all live in close proximity with one another, have close emotional bonds, and visit each other frequently, and the aunt and uncle help care for the child. Neither AB’s wife’s family nor (for this particular waiver) the child are qualifying relatives, but AB’s wife, who is a qualifying relative, would suffer significant emotional hardship from seeing the suffering of both her young child and her sister’s family (the child’s aunt, uncle and cousins), all separated from one another, as well as separated from other family members, and from losing the emotional bonds she and her child have with her sister’s family and other family members, and financial benefit she receives from the care that her sister and brother-in-law provide. In addition, the child (like her mother) does not speak the language of the relocation country.
Analysis: Depending on the totality of the evidence, these additional facts would generally support a finding of extreme hardship. The aggregate hardships to the U.S. citizen wife now include not only the economic losses, diminution of professional opportunities, and social, cultural, and linguistic difficulties – all common consequences – but also the extra emotional hardship she would experience as a result of seeing the suffering of her young child and also her sister and the sister’s family, and other members of the family because of the additional separation, the child’s inability to speak the language, as well as loss of emotional bonds between all these family members and financial benefit from their contribution to the care of the child. That is the case even though neither the child nor the aunt, uncle and cousins, or family members are qualifying relatives for the particular waiver, because their suffering will in turn cause significant emotional suffering for the U.S. citizen wife, who is a qualifying relative. Note that even though the common consequences are not alone sufficient to constitute extreme hardship, they must be added to the other hardships to determine whether the totality adds up to extreme hardship.
Scenario #3: Again the facts are the same as in Scenario # 1, except this time AB himself has LPR parents who live in the United States and who would suffer significant emotional hardship as a result of separation from their son and their daughter-in-law, with whom they have close family relationships.
Analysis: Depending on the totality of the evidence, the addition of these facts would generally favor a finding of extreme hardship. There are now 3 qualifying relatives – AB’s wife and both his parents. Although the aggregated hardships to AB’s wife alone (under Scenario # 1) include only the common consequences of a refusal of admission, further aggregating them with the emotional hardships suffered by the two LPR parents would generally tip the balance in favor of a finding of extreme hardship, depending, again, on the totality of the evidence.
Scenario #4: CD has lived continuously in the United States since entering without inspection 4 years ago. She has been married to her U.S. citizen husband for 2 years. It is reasonably foreseeable that he would choose to remain in the United States in the event she is refused admission. He has a moderate income, and she works as a housecleaner for low wages. Upon separating they would suffer substantial economic detriment; in addition to the loss of her income, he is committed to sending her remittances once she leaves, in whatever amounts he can afford. They have no children, and there are no extended family members in the United States.
Analysis: These facts alone generally would not favor a finding of extreme hardship. The qualifying relative, and the hardships to him, even when aggregated, include only common consequences – separation from his spouse and economic loss.
Scenario #5: EF and GH, a married couple from Taiwan, entered the United States on student visas 19 and 17 years ago, respectively. They overstayed their visas and have lived here ever since. They have five U.S. citizen children, all of whom were born in the United States and have lived here their entire lives. In the event that the parents are removed to Taiwan, it is reasonably foreseeable that the children would relocate with them. The children range in age from 6 to 15 and are fully integrated into the American lifestyle. None of the children are fluent in Chinese, and they would have to attend Chinese language public schools if they relocate because the family would not be able to afford private school. The 15-year-old child in particular would experience significant disruption to her education in light of her current age and her inability to speak or understand Chinese. The family of seven would be able to afford only a one-bedroom apartment upon relocation.
Analysis: This is the fact situation of Matter of Kao, 23 I. & N. Dec. 45 (BIA en banc 2001). The Board in that case, sitting en banc, held that these facts constitute extreme hardship for the 15-year-old daughter, who was one of the qualifying relatives. The Board therefore did not need to decide whether the other qualifying individuals would also suffer extreme hardship upon relocation. A key factor in that decision was the daughter’s age. In addition to the common consequences (integration into the American lifestyle, current inability to speak the language of the country of relocation, lesser educational opportunities, and economic loss), the Board found that because of her age and the time it would take to become fluent in the language of the country of relocation, the daughter’s education would be significantly disrupted and she would experience extreme hardship as a result.
Scenario #6: KL has lived continuously in the United States since entering without inspection six years ago. She married a U.S. citizen four years ago and seeks a waiver of the 10-year inadmissibility bar for unlawful presence based on extreme hardship to her husband. If she is refused, she would be removed to a country for which the U.S. State Department has issued travel warnings for specific regions, including the region where her family lives. It is reasonably foreseeable that her husband would relocate with her, and that because of the danger they would relocate in one of the areas for which no travel warnings have been issued. Unemployment throughout the country is extremely high, however, and without the family connections that they would forfeit by living outside the region of their family’s residence, the job prospects for both spouses are dim and their basic subsistence needs would be threatened.
Analysis: The fact that parts of the country of relocation are dangerous does not, by itself, constitute extreme hardship. Similarly, economic loss alone is not extreme hardship. But economic detriment that is severe enough to threaten a person’s basic subsistence can rise to the level of extreme hardship. Therefore, if the dangers in parts of the relocation country would induce the qualifying relative to relocate in other parts of the country where economic subsistence would be threatened (or if relocation in such parts is reasonably foreseeable for any other reason), the resulting economic distress would generally favor a finding of extreme hardship, depending on the totality of the evidence. Conversely, if it were reasonably foreseeable that because of the economic realities the qualifying relative, despite the danger, would relocate in a region for which travel warnings have been issued, then that danger would weigh heavily in favor of finding extreme hardship.