On December 5, 2016 a USCIS policy guidance went into effect which clarifies the adjudication of certain waiver requests that require USCIS to determine claims of extreme hardship to qualifying relatives. This particularly affects the I-601A, Application for Provisional Unlawful Presence Waiver. The I-601A Waiver (Perdon) allows some individuals to seek a waiver for the 3 and 10 year inadmissibility bars which attach upon departure of the U.S. because of the immigrants entering without inspection or overstaying their visa.
Admissibility is generally a requirement for admission to the United States, adjustment of status, and other immigration benefits. Several statutory provisions authorize discretionary waivers of particular inadmissibility grounds in cases where the applicant demonstrates that refusal of admission “would result in extreme hardship” to one or more designated relatives, such as a specified U.S. citizen or lawful permanent resident family members.
The predominant theme of the December 5, 2016 policy guidance is that adjudicators are reminded that the hardship factors must be considered in the aggregate and that no single hardship, taken in isolation, needs to rise to level of extreme. This principle is already set forth in administrative appeal decisions and codified. However, emphasizing it in the guidance may reassure applicants to set forth all possible factors, if taken together, they add to extreme hardship. One observation of note is the five (5) significant factors likely to support finding of extreme hardship, in the policy guidance. One, which will apply to many households, is a separation would result in the qualifying relative undertaking a due-role primary caretaker and possibly income-earner for the couple’s children or otherwise taking on significant parental or other caregiving responsibilities.