July 15, 2015

The Department of Homeland Security (DHS) proposes to expand eligibility for provisional waivers of certain grounds of inadmissibility based on the accrual of unlawful presence to all aliens who are statutorily eligible for a waiver of such grounds, are seeking such a waiver in connection with an immigrant visa application, and meet other conditions. The provisional waiver process currently allows certain aliens who are present in the United States to request from U.S. Citizenship and Immigration Services (USCIS) a provisional waiver of certain unlawful presence grounds of inadmissibility prior to departing from the United States for consular processing of their immigrant visas—rather than applying for a waiver abroad after the immigrant visa interview using the Form I-601, Waiver of Grounds of Inadmissibility. (DHS proposes to expand its current provisional waiver process in two principal ways. First, DHS would eliminate current limitations on the provisional waiver process that restrict eligibility to certain immediate relatives of U.S. citizens.

Under this proposed rule, the provisional waiver process would be made available to all aliens who are statutorily eligible for waivers of inadmissibility based on unlawful presence and meet certain other conditions. Second, in relation to the statutory requirement that the waiver applicant demonstrate that denial of the waiver would result in “extreme hardship” to certain family members, DHS proposes to expand the provisional waiver process by eliminating the current restriction that limits extreme hardship determinations only to aliens who can establish extreme hardship to U.S. citizen spouses or parents. Under this proposed rule, an applicant for a provisional waiver would be permitted to establish the eligibility requirement of showing extreme hardship to any qualifying relative (namely, U.S. citizen or lawful permanent resident spouses or parents). DHS is proposing to expand the provisional waiver process in the interests of encouraging eligible aliens to complete the visa process abroad, promoting family unity, and improving administrative efficiency.

Extreme hardship is a requirement for several of inadmissibility waivers for certain criminal grounds, fraud, misrepresentation and waiver of the unlawful presence.  Ability to establish extreme hardship depends on the facts and circumstances of each case.  Extreme hardship means something more than the ordinary hardship one would suffer in being separated from a spouse, children, and other family members, or from a country or life style one had become accustomed to.

For example, the following factors, when considered together, may establish extreme hardship:

• medical hardship
• loss of special educational opportunities
• inability to provide for yourself and your family in the home country
• age of qualifying relatives
• family ties in the United States and abroad
• length of residence in the United States (at least 7 years for LPRs or 10 years for unlawfully present)
• financial status and occupation
• adverse psychological impact of deportation
• linguistic or cultural factors that make securing employment in the home country difficult
• conditions in the home country
• involvement and position in the local community
• immigration history

There several ways of documenting extreme hardship.  You should be prepared to obtain the following, as maybe requested by your attorney:

• letters from the immigrant
• letters from immigrant's LPR and US Citizen relatives
• letters from employers, church officials, neighbors, teachers, and community members
• documents showing any medical, physical and emotional health problems, for example medical records, diagnosis, anticipated treatment, report from the treating physician
• ownership of real or personal property in the US
• children's achievements and educational level