Waivers of Inadmissibility Based on Extreme Hardship
Under the Immigration and Nationality Act (INA), admissibility is generally a requirement for admission to the United States, adjustment of status, and other immigration benefits. The grounds that make aliens inadmissible to the United States are generally described in section 212 of the INA. See 8 U.S.C. §1182.
Several statutory provisions authorize the Secretary of Homeland Security to grant discretionary waivers of particular grounds of inadmissibility for those who demonstrate that a denial of admission would result in “extreme hardship” to specified U.S. citizen or lawful permanent resident (LPR) family members. These specified family members are known as “qualifying relatives.”
Each of these statutory provisions conditions a waiver on both a finding of extreme hardship to one or more qualifying relatives and the favorable exercise of discretion. These waiver applications are adjudicated by United States Citizenship and Immigration Services (USCIS)—and in some cases by the Department of Justice’s Executive Office for Immigration Review.
The various statutory waiver provisions specify different categories of qualifying relatives and permit waivers of different inadmissibility grounds. The provisions include:
• INA 212(a)(9)(B)(v)—Provides for waiver of the 3-year and 10-year inadmissibility bars for unlawful presence. Qualifying relatives are limited to applicants’ U.S. citizen and LPR spouses and parents.
• INA 212(h)(1)(B)—Provides for waiver of inadmissibility based on crimes involving moral turpitude, multiple criminal convictions, prostitution and commercialized vice, and certain serious criminal offenses for which the alien received immunity from prosecution. Also provides a waiver of inadmissibility for a controlled substance violation insofar as the violation relates to a single offense of simple possession of 30 grams or less of marijuana. Qualifying relatives are limited to applicants’ U.S. citizen and LPR spouses, parents, sons, and daughters.
• INA 212(i)(1)—Provides for waiver of inadmissibility for certain types of immigration fraud or willful misrepresentations of material fact. For purposes of this waiver, qualifying relatives are generally limited to applicants’ U.S. citizen and LPR spouses and parents. But if the applicant is a Violence Against Women Act (VAWA) self-petitioner, USCIS also must consider extreme hardship to the applicant himself or herself, or to a parent or child who is a U.S. citizen, LPR, or otherwise a qualified alien.
Totality of the Circumstances
The officer must make extreme hardship determinations based on the factors, arguments, and evidence submitted. Therefore, the officer should consider any submission from the applicant bearing on the extreme hardship determination.
The officer may also consider factors, arguments, and evidence relevant to the extreme hardship determination that the applicant has not specifically presented, such as those addressed in Department of State (DOS) information on country conditions or other U.S. Government determinations regarding country conditions—including a country’s designation for Temporary Protected Status (TPS).
Officers must base their decisions on the totality of the evidence and circumstances presented.
Common Consequences
The common consequences of denying admission, in and of themselves, do not warrant a finding of extreme hardship. The Board of Immigration Appeals (BIA) has held that the common consequences of denying admission include 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.
While extreme hardship must involve more than the common consequences of denying admission, the extreme hardship standard is not as high as the significantly more burdensome “exceptional and extremely unusual” hardship standard that that applies to other forms of immigration adjudications, such as cancellation of removal.
Factors Must Be Considered Cumulatively
The officer must consider all factors and consequences in their totality and cumulatively when assessing whether a qualifying relative will experience extreme hardship either in the United States or abroad. In some cases, common consequences that on their own do not constitute extreme hardship may result in extreme hardship when assessed cumulatively with other factors.
For example, if a qualifying relative has a medical condition that alone does not rise to the level of extreme hardship, the combination of that hardship and the common consequences of inferior medical services, economic detriment, or readjusting to life in another country may cumulatively cause extreme emotional or financial hardship for the qualifying relative when considering the totality of the circumstances.
Ordinarily, for example, the fact that medical services are less comprehensive in another country is a common consequence of denying admission; but the inferior quality of medical services, considered along with the individual’s specific medical conditions, may create sufficient difficulties as to rise to the level of extreme hardship in combination with all the other consequences.
The officer must weigh all factors individually and cumulatively, as follows:
• First, the officer must consider whether any factor set forth individually rises to the level of extreme hardship under the totality of the circumstances.
• Second, if any factor alone does not rise to the level of extreme hardship, the officer must consider all factors together to determine whether they cumulatively rise to the level of extreme hardship. This includes hardships to multiple qualifying relatives.
When considering the factors, whether individually or cumulatively, all factors, including negative factors, must be evaluated in the totality of the circumstances.
Evidence
Most instructions to USCIS forms list the types of supporting evidence that applicants may submit with those forms. The instructions to the relevant waiver forms describe some of the extreme hardship factors that may be considered, along with certain possible types of supporting evidence that may be submitted. USCIS accepts any type of probative evidence, including:
• Expert opinions;
• Medical or mental health documentation and evaluations by licensed professionals;
• Official documents, such as birth certificates, marriage certificates, adoption papers, paternity orders, orders of child support, and other court or official documents;
• Photographs;
• Evidence of employment or business ties, such as payroll records or tax statements;
• Bank records and other financial records;
• Membership records in community organizations, confirmation of volunteer activities, or records related to cultural affiliations;
• Newspaper articles and reports;
• Country reports from official and private organizations;
• Personal oral testimony; and
• Affidavits, statements that are not notarized but are signed “under penalty of perjury” as permitted by 28 U.S.C. 1746, or letters from the applicant or any other person.
If the applicant indicates that certain relevant evidence is not available, the applicant must provide a reasonable explanation for the unavailability, along with available supporting documentation. Depending on the country where the applicant is from, is being removed to, or resides, certain evidence may be unavailable.
If the applicant alleges that documentary evidence such as a birth certificate is unavailable, the officer may consult the Department of State (DOS) Foreign Affairs Manual, when appropriate, to verify whether these particular documents are ordinarily unavailable in the relevant country.
Burden of Proof and Standard of Proof
The applicant bears the burden of proving that the qualifying relative would suffer extreme hardship. He or she must establish eligibility for a waiver by a preponderance of the evidence. If the applicant submits relevant, probative, and credible evidence that leads the USCIS officer to believe that it is “more likely than not” that the assertion the applicant seeks to prove is true, then the applicant has satisfied the preponderance of the evidence standard of proof as to that assertion.
The mere assertion of extreme hardship alone does not establish a credible claim. Individuals applying for a waiver of inadmissibility should provide sufficient evidence to support and substantiate assertions of extreme hardship to the qualifying relative(s).
Each assertion should be accompanied by evidence that substantively supports the claim absent a convincing explanation why the evidence is unavailable and could not reasonably be obtained. The officer should closely examine the evidence to ensure that it supports the applicant’s claim of hardship to the qualifying relative.
To illustrate, an applicant who claims that the qualifying relative has severe, ongoing medical problems will not likely be able to establish the existence of these problems without providing medical records documenting the qualifying relative’s condition. Officers cannot substitute their medical opinion for a medical professional’s opinion; instead the officer must rely on the expertise of reputable medical professionals.
A credible, detailed statement from a doctor may be more meaningful in establishing a claim than dozens of test results that are difficult for the officer to decipher. However, nothing in such a case changes the requirement that all evidence submitted by applicants should be considered to evaluate the totality of the circumstances.
Similarly, if the applicant claims that the qualifying relative will experience severe financial difficulties, the applicant will not likely be able to establish these difficulties without submitting financial documentation. This could include, but is not limited to, bank account statements, employment and income records, tax records, mortgage statements, leases, and proof of any other financial liabilities or earnings.
If not all of the required initial evidence has been submitted, or the officer determines that the totality of the evidence submitted does not meet the applicable standard of proof, the officer should issue a Request for Evidence (RFE) in accordance with USCIS policy.
In considering whether the applicant’s evidence is sufficient to meet the applicant’s burden of proof, the officer will consider whether the applicant has complied with applicable requirements to submit information and supporting documentation and whether the evidence is credible, persuasive, and refers to specific facts sufficient to demonstrate that the burden of proof has been satisfied and that applicant warrants a favorable exercise of discretion.
In considering whether the applicant’s evidence is credible, the officer will consider the totality of the circumstances and all relevant factors and should take into account the inherent plausibility and internal and external consistency of the evidence and any inaccuracies or falsehoods in the evidence.
If evidence in the record leads the officer to reasonably believe that undocumented assertions of the extreme hardship claim are true, the officer may accept the assertion as sufficient to support the extreme hardship claim. The preponderance of the evidence standard does not require any specific form of evidence; it requires the applicant to demonstrate only that it is more likely than not that the refusal of admission will result in extreme hardship to the qualifying relative(s). Any evidence that satisfies that test will suffice.
If the officer finds that the applicant has met the above burden of showing extreme hardship to one or more qualifying relatives, the officer should proceed to the discretionary determination. If the officer ultimately finds that the applicant has not met the above burden, the waiver application must be denied.
In Texas, as in other states, waivers of inadmissibility based on extreme hardship are governed by federal law under the Immigration and Nationality Act (INA). These waivers are available to individuals who are deemed inadmissible to the U.S. but can demonstrate that their denial of admission would cause extreme hardship to their U.S. citizen or lawful permanent resident (LPR) family members, known as 'qualifying relatives.' The Secretary of Homeland Security has the discretion to grant waivers for various inadmissibility grounds, such as unlawful presence, certain criminal offenses, and immigration fraud. USCIS and sometimes the Department of Justice’s Executive Office for Immigration Review adjudicate these waivers. Applicants must provide evidence of extreme hardship, which is evaluated on the totality of the circumstances, including factors like family separation, economic detriment, and medical issues. The burden of proof is on the applicant to show that it is 'more likely than not' that their qualifying relative would suffer extreme hardship. If the evidence meets this preponderance of the evidence standard, the officer will then make a discretionary determination on whether to grant the waiver.
