USCIS Waivers for Extreme Hardship – new rules pending

On October 7, 2015 the USCIS issued a draft extreme hardship policy guidance for public comment. This guidance clarifies how USCIS waivers for extreme hardship will be determined once the guidance is finalized.

The draft guidance addresses which waivers require a showing of extreme hardship, how an applicant can establish extreme hardship to a qualifying relative, and which special circumstances often weigh heavily in favor of an extreme hardship finding, among other considerations.

Immigrants getting green cards through marriage need to show extreme hardship for waivers when they violate the following laws:

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 parentThis 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

This is a welcomed event. Immigration attorneys have been receiving denials of I-601 and I-601A waiver applications of the 3 and 10 year bar that do not reflect the law. I plan on attending the stakeholder conference on November 3, 2015 to provide USCIS with feedback on how best to adjudicate these waivers fairly.

Here is the link to the notice document:

10-29-15 USCIS Proposed guidance on extreme hardship memo