Draft USCIS Policy Manual, Volume 9: Waivers
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Part B – Extreme Hardship DRAFT
Purpose
U.S. Citizenship and Immigration Services (USCIS) is issuing draft extreme hardship policy
guidance for public comment. This guidance clarifies how USCIS would make extreme hardship
determinations once the guidance is finalized.
Background
Admissibility is generally a requirement for admission to the United States, adjustment of
status, and other immigration benefits. Several INA provisions, however, authorize
discretionary waivers of particular inadmissibility grounds for those who demonstrate “extreme
hardship” to qualifying relatives, such as specified U.S. citizen or LPR family members.
Policy Highlights
The draft guidance:
Describes which waivers require a showing of extreme hardship.
Explains that an applicant has established extreme hardship to a qualifying relative if he or
she is able to show that it is reasonably foreseeable that the qualifying relative would
either relocate or remain in the United States, and that it is more likely than not that
the relocation or separation would result in extreme hardship.
Explains that the hardship must be of great suffering or loss, and that such hardship has to
be greater than that usually encountered as a result of denial of admission or removal.
Clarifies that extreme hardship is dependent on the individual circumstances of each
particular case.
Lists factors that may be considered when making an extreme hardship determination.
Explains special circumstances that would often weigh heavily in favor of a finding of
extreme hardship to a qualifying relative.
Clarifies that factors, individually or in the aggregate, can be sufficient to meet the
extreme hardship standard.
Clarifies that hardship to two or more qualifying relatives may be considered “extreme” in
the aggregate, if there is no single qualifying relative whose hardship alone is severe
enough to be found “extreme.”
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Part B – Extreme Hardship DRAFT
Chapter 1. Purpose and Background ....................................................................................... 3
Chapter 2. General Considerations, Interpretations, and Adjudicative Steps ........................ 4
A. General Considerations ................................................................................................... 4
B. Interpretations ................................................................................................................. 5
C. Adjudication Steps ........................................................................................................... 8
Chapter 3. Qualifying Relative ............................................................................................... 10
A. Establishing the Relationship to the Qualifying Relative ............................................... 10
B. Effect on Extreme Hardship if Qualifying Relative Dies ................................................. 10
C. Effect of Hardship Experienced by a Person who is not a Qualifying Relative .............. 12
Chapter 4. Extreme Hardship Factors.................................................................................... 12
A. Overview ........................................................................................................................ 12
B. Common Consequences of Inadmissibility .................................................................... 13
C. Examples of Factors that Might Support Finding of Extreme Hardship ........................ 13
D. Special Circumstances that Strongly Suggest Extreme Hardship .................................. 17
Chapter 5. Extreme Hardship Determinations ...................................................................... 25
A. Evidence ......................................................................................................................... 25
B. Burden of Proof and Standard of Proof ......................................................................... 26
Chapter 6. Discretion ............................................................................................................. 27
Draft USCIS Policy Manual, Volume 9: Waivers
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Chapter 1. Purpose and Background
This Part offers 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.
1
Admissibility is generally a requirement for admission to the United States, adjustment of
status, and other immigration benefits.
2
Several provisions of the Immigration and Nationality
Act (INA),
3
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).
4
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.
5
Eligible qualifying relatives include the applicant’s U.S.
citizen or LPR spouse or parent.
6
INA 212(h)(1)(B) – This provision can waive inadmissibility for crimes involving moral
turpitude, multiple criminal convictions, prostitution and commercialized vice, and
1
Several other discretionary waivers and other forms of discretionary relief are available upon showings of
extreme hardship to the applicants themselves. These include waivers of inadmissibility under INA 212(i)(1)
(waiver of fraud-related inadmissibility for VAWA self-petitioners), INA 216(c)(4)(A) (waiver of requirements for
removing conditions on lawful permanent resident status), and suspension of removal and cancellation of removal
under Section 203 of Nicaraguan Adjustment and Central America Relief Act (NACARA), Title II of Pub. L. 105-100,
111 Stat. 2160, 2196 (November 19, 1997). See 8 CFR 240.64(c) and 8 CFR 1240.64(c). This Part does not address
the adjudication of applications for those remedies to the extent that they relate to extreme hardship to the
applicant himself or herself. It also does not address those discretionary relief provisions that require a showing of
greater hardship. See INA 212(e) (“exceptional hardship” waiver of two-year foreign residence requirement for
certain exchange visitors) and INA 240A(b)(1)(D) (“exceptional and extremely unusual hardship” generally required
for cancellation of removal Part B).
2
See INA 212(a) and INA 245(a).
3
See Immigration and Nationality Act, Pub. L. 82-414, 66 Stat. 163 (June 27, 1952), as amended.
4
See 6 U.S.C. 271(b). See Delegation No. 0150.1, “Delegation to the Bureau of Citizenship and Immigration
Services” II, Z (June 5, 2003).
5
See INA 212(a)(9)(B)(i).
6
Applicants for provisional waivers of unlawful presence should check the form instructions, as the process may be
limited to applicants with certain qualifying relatives.
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certain serious criminal offenses for which the foreign national received immunity from
prosecution.
7
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.
8
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.
9
Eligible qualifying relatives include the applicant’s U.S. citizen or LPR spouse or
parent.
Chapter 2. General Considerations, Interpretations, and Adjudicative Steps
A. General Considerations
The purpose of the various statutory waiver provisions is to enable the relevant agencies (in this
case USCIS) to balance the competing policy considerations that affect whether a given foreign
national should be admitted to the United States. On the one hand, the fact situations to which
these waivers apply involve misconduct that Congress has found serious enough to render a
person inadmissible. On the other hand, by authorizing extreme hardship waivers Congress
created a specific exception for those cases in which the refusal of admission would result in
more than the usual level of hardship for specified U.S. citizen or lawful permanent resident
family members. Congress clearly intended the waiver to be applied with those sorts of family
unity and other humanitarian concerns in mind.
In deciding applications for any of these waivers, the officer exercises discretion at two stages
of the process. First, the determination of whether the alleged hardships are “extreme” is itself
a discretionary judgment.
10
Second, a finding of extreme hardship to a qualifying relative does
not guarantee approval of the waiver; the officer must still make a more general decision as to
whether the favorable exercise of discretion is merited.
11
At each of these two stages, the
7
See INA 212(a)(2)(A)(i), INA 212(a)(2)(B), INA 212(a)(2)(D), and INA 212(a)(2)(E).
8
See INA 212(a)(2)(A)(ii).
9
See INA 212(a)(6)(C)(i).
10
See Hamilton v. Holder, 680 F.3d 1024, 1027 (8th Cir. 2012) (holding extreme hardship determination
discretionary and therefore not subject to judicial review). See Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir.
2003) (same). See Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332-33 (11th Cir. 2003) (same). The courts
retain jurisdiction to review “the purely legal and hence non-discretionary question” of whether a person qualifies
as a qualifying relative, Romero-Torres, 327 F. 3d at 890, and “whether … the correct discretionary waiver standard
[was applied] in the first instance,” Cervantes-Gonzales v. INS, 244 F.3d 1001, 1005 (9th Cir. 2001). See Hamilton,
680 F.3d 1024, 1026 (8th Cir. 2012) (holding courts “retain jurisdiction over any ‘constitutional claims or questions
of law’”).
11
See Chapter 6, Discretion [9 USCIS-PM B.6].
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officer bases his or her discretionary determination on the totality of the relevant evidence in
the individual case.
12
The burden of proof lies with the applicant to demonstrate both that he or she meets the
statutory requirements, including extreme hardship, and that he or she merits a favorable
exercise of discretion.
13
The applicant must prove the requisite extreme hardship by a
preponderance of the evidence. This means the applicant must prove that it is more likely than
not that a denial of admission would result in extreme hardship to the qualifying relative.
14
The
applicant also has the burden of demonstrating that he or she merits a favorable exercise of
discretion.
USCIS recognizes that at least some degree of hardship to the qualifying relative exists in most,
if not all, cases in which the principal immigrant is denied admission. Thus, to be considered
“extreme,” the hardship must exceed that which is usual or expected.
15
At the same time, the
hardship need not be unique;
16
nor is “extreme hardship” as demanding as the “exceptional
and extremely unusual hardship” standard generally applicable to cancellation of removal Part
B.
17
B. Interpretations
The phrase “extreme hardship” is not defined in the INA or in any decisions of the Board of
Immigration Appeals (BIA) or the federal courts. Rather, as the U.S. Supreme Court held in INS
v. Jong Ha Wang, “[t]hese words are not self-explanatory, and reasonable men could easily
differ as to their construction. But the [INA] commits their definition in the first instance to the
12
See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 566 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d
1001 (9th Cir. 2001). See Matter of Ngai, 19 I&N Dec. 245 (BIA 1984). See Matter of Shaughnessy, 12 I&N Dec. 810
(BIA 1968).
13
See INA 291 (providing that burden is on applicant for admission to prove he or she is “not inadmissible”). See
Matter of Mendez-Moralez, 21 I&N Dec. 296, 299 (BIA 1996) (holding that applicant for INA 212(h)(1)(B) waiver has
burden of showing that favorable exercise of discretion is warranted, “as is true for other discretionary forms of
relief”). See 8 CFR 212.7(e)(7) (provisional INA 212(a)(9)(B)(v) waivers) and INA 240(c)(4)(A) (in removal
proceedings, the applicant for relief has the burden of proving that he or she is statutorily eligible and merits a
favorable exercise of discretion).
14
See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). See Fisher v. Vassar College, 114 F.3d 1332, 1333-34
(2nd Cir. 1997) (holding that in other contexts “preponderance of the evidence” means more likely than not).
15
See 8 CFR 1240.58(b) (for purposes of the former suspension of deportation provision, the hardship must go
“beyond that typically associated with deportation”).
16
See Matter of L-O-G-, 21 I&N Dec. 413, 418 (BIA 1996).
17
See Matter of Andazola-Rivas, 23 I&N Dec. 319, 322, 324 (BIA 2002) (holding the “exceptional and extremely
unusual hardship” standard to be “significantly more burdensome than the ‘extreme hardship’ standard” and
intimating that the applicant “might well” have prevailed under the latter standard even though she failed the
former standard). See Matter of Monreal-Aguinaga, 23 I&N Dec. 56, 59-64 (BIA 2001) (same).
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Attorney General [and the Secretary of Homeland Security] and [their] delegates …”
18
Thus,
“[t]he Attorney General [and the Secretary of Homeland Security] and [their] delegates have
the authority to construe ‘extreme hardship’ narrowly should they deem it wise to do so.”
19
Conversely, “[a] restrictive view of extreme hardship is not mandated either by the Supreme
Court or by [the BIA] case law.”
20
1. Separation versus Relocation
With respect to the requirement that the refusal of the applicant’s admission “would result in”
extreme hardship to a qualifying relative, there are two factual scenarios to consider. The
qualifying relative might either relocate overseas with the applicant or remain in the United
States separated from the applicant. In either scenario, depending on all the facts of the
particular case, the refusal of admission might or might not result in the qualifying relative
experiencing extreme hardship.
Interpreting the phrase “would result in,” and applying the preponderance of the evidence
standard,
21
USCIS has determined that the applicant may satisfy the extreme hardship
requirement by showing that either:
It is reasonably foreseeable that the qualifying relative would relocate and more likely
than not that the relocation would result in extreme hardship; or
It is reasonably foreseeable that the qualifying relative would remain in the United
States and more likely than not that the separation would result in extreme hardship.
An applicant may also satisfy the extreme hardship requirement by showing that both the
relocation and separation scenarios could be reasonably foreseeable and would more likely
than not result in extreme hardship.
Importantly, it is not appropriate for an officer to base this determination on his or her personal
moral view as to whether a particular qualifying relative ought to relocate overseas. U.S.
citizens and lawful permanent residents typically have much at stake in continuing to live in the
United States; whether to do so at the cost of separation from a close family member is a highly
personal decision.
The statutory language “would result in” makes the relevant inquiry predictive, not normative.
Thus, if the officer finds, based on the totality of the evidence, that relocation is reasonably
18
See 450 U.S. 139, 144 (1981) (per curiam).
19
See INS v. Jong Ha Wang, 450 U.S. 139, 145 (1981) (per curiam).
20
See Matter of Pilch, 21 I&N Dec. 627, 630 (BIA 1996). See Matter of L-O-G-, 21 I&N Dec. 413, 418 (BIA 1996).
21
See Section A, General Considerations [9 USCIS-PM B.2(A)].
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foreseeable, then the next inquiry is whether the relocation would result in the qualifying
relative suffering extreme hardship. If instead the officer finds, based on the totality of the
evidence, that separation is reasonably foreseeable, then the next inquiry is whether the
separation would result in his or her suffering extreme hardship.
22
Special considerations might arise if the qualifying relative is a child.
23
In that particular context,
a parent who asserts that his or her child will remain in the United States should generally be
expected to explain the arrangements for the child’s care and support. The failure to provide a
credible plan for the care and support of the child might indicate that in actuality the child
remaining behind in the United States is not a realistic scenario.
24
Moreover, if the parent
represents that the child will be left behind, the officer might require the parent to state that
understanding in an affidavit.
25
An affidavit is not required, however, if the parent represents
that the child will be left behind in the care of the other parent, even if that other parent is
unlawfully present.
26
Being left in the care of the other parent might still result in extreme
hardship, depending on the totality of the circumstances.
2. Aggregating Hardships
To establish extreme hardship, it is not necessary to demonstrate that a single hardship, taken
in isolation, rises to the level of “extreme.” Rather, any relevant hardship factors “must be
considered in the aggregate, not in isolation.”
27
Thus, even if no one factor individually
constitutes extreme hardship, the officer “must consider the entire range of factors concerning
hardship in their totality and determine whether the combination of hardships takes the case
beyond those hardships ordinarily associated with deportation” (or, in this case, the refusal of
admission).
28
Even “those hardships ordinarily associated with deportation, … while not alone
22
For guidance on the evidence that may be relevant to the assessment of reasonable foreseeability, see Chapter
5, Extreme Hardship Determinations, Section B, Burden of Proof and Standard of Proof [9 USCIS-PM B.5(B)].
23
This is possible in cases of waivers of criminal grounds under INA 212(h)(1)(B).
24
See Matter of Ige, 20 I&N Dec. 880, 885 (BIA 1994) (holding that, for purposes of the former suspension of
deportation, neither the parent’s “mere assertion” that the child will remain in the United States nor the mere
“possibility” of the child remaining is entitled to “significant weight;” rather, the Board expects evidence that
“reasonable provisions will be made for the child’s care and support”). See Iturribarria v. INS, 321 F.3d 889, 902-03
(9th Cir. 2003) (finding that in suspension of deportation case, the petitioner could not claim extreme hardship
from family separation without evidence of the family’s intent to separate). See Perez v. INS, 96 F.3d 390, 393 (9th
Cir. 1996) (holding that agency properly required, as means of reducing speculation in considering extreme
hardship element in a suspension of deportation case, affidavits and other evidentiary material establishing that
family members “will in fact separate”).
25
See Matter of Ige, 20 I&N Dec. 885, at 885 (BIA 1994) (requiring such an affidavit in suspension of deportation
cases).
26
See Matter of Calderon-Hernandez, 25 I&N Dec. 885 (BIA 2012).
27
See Bueno-Carrillo v. Landon, 682 F.2d 143, 146 n.3 (7th Cir. 1982); accord Ramos v. INS, 695 F.2d 181, 186 n.12
(5th Cir. 1983).
28
See Matter of O-J-O-, 21 I&N Dec. 381, 383 (BIA 1996).
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sufficient to constitute extreme hardship, are considered in the assessment of aggregate
hardship.”
29
The applicant need show extreme hardship to only one qualifying relative. But even if there is
no single qualifying relative whose hardship alone is severe enough to be found “extreme,” it is
also sufficient if the hardship to two or more qualifying relatives adds up to extreme hardship.
30
Thus, if the applicant presents evidence of hardship to multiple qualifying relatives, the officer
should aggregate all of their hardships to decide whether the sum total adds up to extreme
hardship.
31
C. Adjudication Steps
The officer should complete the following steps when adjudicating a waiver application that
requires a showing of extreme hardship to a qualifying relative:
32
29
See Matter of O-J-O-, 21 I&N Dec. 381, 383 (BIA 1996). See Matter of Ige, 20 I&N Dec. 880, 882 (BIA 1994)
(“Relevant factors, though not extreme in themselves, must be considered in the aggregate in determining
whether extreme hardship exists.”).
30
See Watkins v. INS, 63 F.3d 844, 850 (9th Cir. 1995) (reversing BIA decision on ground it had failed to aggregate
the “professional and social changes” of the petitioner, who was a qualifying relative under the particular statute,
with the hardship to the applicant’s children, who were also qualifying relatives). See Prapavat v. INS, 638 F.2d 87,
89 (9th Cir. 1980) (holding that extreme hardship “may also be satisfied … by showing that the aggregate hardship
to two or more family members described in then 8 U.S.C. 1254(a)(1) is extreme, even if the hardship suffered by
any one of them would be insufficient by itself”), reheard, , 662 F.2d 561, 562-63 (9th Cir. 1981) (per curiam) (again
listing both hardships to the qualifying relative petitioners and hardships to their U.S. citizen child, holding that
these hardships “must all be assessed in combination,” and finding that the Board had erred in failing to do so).
See Jong Ha Wang v. INS, 622 F.2d 1341, 1347 (9th Cir. 1980) (“[T]he Board should consider the aggregate effect of
deportation on all such persons when the alien alleges hardship to more than one.”), rev’d on other grounds, 450
U.S. 139 (1981) (per curiam). These decisions all interpreted the former suspension of deportation provision. The
list of qualifying individuals (which included the petitioners themselves) whose extreme hardship sufficed under
that provision differed from the lists of qualifying relatives in the waiver provisions discussed here, but the
statutory language was identical in all other relevant respects (“result in extreme hardship to …”). Consequently,
the courts and the BIA have frequently relied on the suspension cases for aid in interpreting the similar language of
the waiver cases. See Hassan v. INS, 927 F.2d 465, 467 (9th Cir. 1991). See Matter of Cervantes-Gonzalez, 22 I&N
Dec. 560, 565 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001).
31
Even the aggregated hardships will not add up to extreme hardship if they include only those that the BIA has
held to be “common consequences.” For a list of those common consequences, see Chapter 4, Extreme Hardship
Factors, Section B, Common Consequences of Inadmissibility [9 USCIS-PM B.4(B)].
32
In most cases, there will already have been a finding of inadmissibility, either by the consular officer adjudicating
a visa application, or a USCIS officer adjudicating a related application, such as a Form I-485, Application to Register
Permanent Residence or Adjust Status. A formal finding of inadmissibility is not required in adjudicating a Form I-
601A, Application for Provisional Presence Waiver. The officer should identify all inadmissibility grounds and
confirm that the ground(s) may be waived. This chart assumes that the inadmissibility grounds have been
identified and that a waiver is available.
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Adjudication Steps for Waivers Requiring Extreme Hardship to a Qualifying Relative
Adjudication Step
Step 1
Confirm the waiver provision requires a showing of
extreme hardship to a qualifying relative.
Step 2
Identify each qualifying relative whose hardship
would be relevant under the applicable waiver
provision, and determine whether the applicant has
established the family relationship(s) to them.
Step 3
Determine whether, if the waiver application were
denied, either relocation or separation (or both)
is/are reasonably foreseeable for each of the
qualifying relatives you have identified.
Step 4
Based on the determination in step 3 and the
evidence submitted, evaluate the present and future
hardships that each qualifying relative would more
likely than not experience if the waiver request were
denied.
Step 5
Determine whether it is more likely than not that, in
the aggregate, the hardships to the qualifying
relatives add up to extreme hardship.
Step 6
If extreme hardship is not found, deny the
application. If extreme hardship is found, exercise
further discretion to determine whether, based on
the totality of the facts of the individual case, the
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Adjudication Steps for Waivers Requiring Extreme Hardship to a Qualifying Relative
Adjudication Step
waiver should be granted.
Chapter 3. Qualifying Relative
A. Establishing the Relationship to the Qualifying Relative
An officer must verify that the relationship to a qualifying relative exists. The qualifying relative
need not be the visa petitioner, but if it is, an officer may use the approval of the Petition for
Alien Relative (Form I-130) as proof that the qualifying relationship has been established.
33
If the applicant’s relationship to the qualifying relative has not already been established
through a prior approved petition, the officer must otherwise verify that the relationship to the
qualifying relative exists. Applicants should include in the waiver application primary evidence
that supports the relationship, such as marriage certificates, birth certificates, adoption papers,
or other court documents, such as paternity orders or orders of child support.
If such primary
evidence does not exist or is unavailable, the applicant should explain why and submit
secondary evidence of the relationship, such as school records, records of religious or other
community institutions, or affidavits from those with personal knowledge of the relevant
facts.
34
If the initial submission does not include primary evidence of the relationship, and the
applicant fails to explain why such evidence does not exist or is unavailable or does not include
secondary evidence of the relationship, the officer should issue a Request for Evidence (RFE).
If the applicant claims that all or part of the qualifying relative’s hardship will result from the
hardship to be suffered by that qualifying relative’s non-qualifying family member, the officer
should ensure that the evidence establishes the claimed relationships.
35
If such evidence is
missing, the officer should issue an RFE.
B. Effect on Extreme Hardship if Qualifying Relative Dies
Ordinarily the qualifying relative who suffers the extreme hardship must be alive at the time
the waiver application is filed and adjudicated. But there is one exception: Under INA 204(l),
certain petitions are deemed to remain valid despite the death of the petitioning qualifying
33
An officer who has concerns about the approved Form I-130 should consult with a supervisor.
34
See 8 CFR 103.2(b)(2)(i).
35
See Section C, Effect of Hardship Experienced by a Person who is not a Qualifying Relative [9 USCIS-PM B.3(C)].
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relative (or the death of the principal beneficiary in the case of a derivative beneficiary). These
petitions include those filed for:
Immediate relatives;
Family-sponsored immigrants; and
Designated family members of family-sponsored immigrants, employment-based
immigrants, refugees, asylees, VAWA self-petitioners, and T and U nonimmigrants.
For the petition to survive the death of the qualifying relative under INA 204(l), the petition has
to have been pending or approved before the death of the qualifying relative, the beneficiary
has to have resided in the United States at the time of that death, and the beneficiary has to
continue to reside in the United States. Officers should review the INA 204(l) guidance, when
applicable, for the precise requirements.
36
If the above conditions are met, INA 204(l)(1) provides that “related applications” similarly
survive the death of the qualifying relative. The USCIS position is that “related applications”
include the corresponding applications for waivers of inadmissibility. Thus, a foreign national
who meets the requirements of INA 204(l) may continue to apply for the waiver even though
the qualifying relative has died. Further, if the waiver requires that the qualifying relative suffer
extreme hardship, USCIS treats the petitioner’s or principal beneficiary’s death as the functional
equivalent of a finding of extreme hardship to a qualifying relative – provided that the decedent
is also one of the qualifying relatives covered by the applicable waiver provision. In such a case
the death of the qualifying relative should be noted in the decision.
37
The same is true for the widow(er)s of U.S. citizens. When a U.S. citizen files a Petition for Alien
Relative (Form I-130) on behalf of his or her spouse, and the citizen dies while the petition is
pending or after it has been approved (and certain other conditions are met), USCIS deems the
I-130 to be automatically converted to a self-petition.
38
Nonetheless, if the widow(er) meets
the residence requirements in INA 204(l), then INA 204(l) preserves the widow(er)'s ability to
have a waiver application approved as if the now deceased citizen had not died. This is the case
even if the petition later reverts to a Form I-130 because of the widow(er)’s remarriage.
39
36
See USCIS Policy Memorandum, Approval of Petitions and Applications after the Death of the Qualifying Relative
under New Section 204(l) of the Immigration and Nationality Act, PM-602-0017 (Dec. 16, 2010).
37
See USCIS Policy Memorandum, Approval of Petitions and Applications after the Death of the Qualifying Relative
under New Section 204(l) of the Immigration and Nationality Act, PM-602-0017 (Dec. 16, 2010), p. 9.
38
Under INA 201(b)(2)(A)(i). See Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
39
See Williams v. DHS, 741 F.3d 1228 (11th Cir. 2014). USCIS applies this ruling nationwide.
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C. Effect of Hardship Experienced by a Person who is not a Qualifying Relative
Hardship to a non-qualifying relative,
40
by itself, does not meet the extreme hardship
requirement. In some cases, however, the hardship experienced by someone who is not a
qualifying relative (including the applicant) can itself be the cause of hardship to a qualifying
relative.
41
As one example, an applicant with a mental disorder shows that he would be relegated to living
in a psychiatric institution in his home country, where he would be unable to obtain the
necessary medical treatment. The applicant provides medical documentation and State
Department information on country conditions that corroborate his statements. The applicant’s
condition and prospective situation might show that denial of his admission would have a
significant emotional or financial impact on his U.S. citizen or LPR qualifying relative in the
United States. The officer may consider the impact of such medical and living conditions as a
factor when determining whether the qualifying relative would experience extreme hardship
upon separation from the applicant.
As another example, an officer should consider the emotional hardship that a parent would
experience from knowing that either separation or other consequences are causing hardship to
his or her non-qualifying child or other third party.
42
Such derivative hardship might or might
not rise to the level of “extreme,” but even if it does not, it is one of the hardship factors that
the officer should consider in determining whether the qualifying relative’s hardship, when
considered in the aggregate, would be extreme.
Chapter 4. Extreme Hardship Factors
A. Overview
The officer should consider any factor that the applicant presents as a potential hardship,
regardless of whether case law addresses the factor and regardless of whether the factor is
included in the lists below. The officer may also consider other factors relevant to the extreme
hardship determination that the applicant has not specifically presented, such as those
40
For example, hardship to the applicant’s child when the particular waiver provision lists only the applicant’s
spouse and parents as qualifying relatives.
41
See Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983) (hardship to non-qualifying relative could cause
hardship to applicant, which would have sufficed under then-existing law). See Antoine-Dorcelli v. INS, 703 F.2d 19,
22 (1st Cir. 1983) (same). See Matter of Gonzalez Recinas, 23 I&N Dec. 467, 471 (BIA 2002) (“In addition to the
hardship of the United States citizen children, factors that relate only to the respondent may also be considered to
the extent that they affect the potential level of hardship to her qualifying relatives.”).
42
See Zamora-Garcia v. INS, 737 F.2d 488, 494 (5th Cir. 1984) (requiring, in suspension of deportation case,
“consideration of the hardship to the [qualifying applicant] posed by the possibility of separation from the [non-
qualifying third party children]”).
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addressed in Department of State (DOS) information on country conditions
43
or other U.S.
Government determinations regarding country conditions, including a country’s designation for
Temporary Protected Status (TPS).
Some of the factors listed below apply when the qualifying relative would remain in the United
States without the applicant. Other factors apply when the qualifying relative would relocate
abroad. Some of the factors might apply in either scenario.
B. 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.
44
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.
C. Examples of Factors that Might Support Finding of Extreme Hardship
43
See DOS Country Reports on Human Rights Practices and DOS Travel Warnings.
44
See Matter of Ngai, 19 I&N Dec. 245 (BIA 1984) and Matter of Shaughnessy, 12 I&N Dec. 810 (BIA 1968).
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Below is a list of factors that an applicant might present and that an officer would consider
when making extreme hardship determinations. This list is not exhaustive; circumstances that
are not on this list can also be the basis for finding extreme hardship. All hardship factors
presented by the applicant should be considered in making the extreme hardship
determination.
FACTORS AND CONSIDERATIONS FOR EXTREME HARDSHIP
Factors
Considerations
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
adults
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
required
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
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FACTORS AND CONSIDERATIONS FOR EXTREME HARDSHIP
Factors
Considerations
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
disability
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
relocation
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
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
business
Economic and financial loss due to termination of a
professional practice
Decline in the standard of living, including high levels of
unemployment, underemployment, and lack of economic
opportunity in country of nationality
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FACTORS AND CONSIDERATIONS FOR EXTREME HARDSHIP
Factors
Considerations
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
Health Conditions
& Care
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
45
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
46
Danger Pay for U.S. citizens stationed in the country of
nationality
47
45
The officer should consider any submitted government or nongovernmental reports on country conditions
specified in the hardship claim. In the absence of any evidence submitted on country conditions, the officer may
refer to DOS information on country conditions, such as DOS Country Reports on Human Rights Practices and the
most recent DOS Travel Warnings, to corroborate the claim.
46
For more information on TPS, see the USCIS website.
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FACTORS AND CONSIDERATIONS FOR EXTREME HARDSHIP
Factors
Considerations
Withdrawal of Peace Corps from the country of nationality for
security reasons
DOS Travel Warnings issued for the country of nationality
D. 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.
48
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.
49
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.
47
See 5 U.S.C. 5928. See the Danger Pay Regulations implemented by the Department of State in its Standardized
Regulations (DSSR).
48
See Section C, Examples of Factors that Might Support Finding of Extreme Hardship [9 USCIS-PM B.4(C)].
49
8 CFR 103.2(b)(1).
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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,
50
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
50
The law defines disability as the inability to engage in any substantial gainful activity (SGA) by reason of any
medically determinable physical or mental impairment(s) which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months. A child under age 18 will be
considered disabled if he or she has a medically determinable physical or mental impairment or combination of
impairments that causes marked and severe functional limitations, and that can be expected to cause death or
that has lasted or can be expected to last for a continuous period of not less than 12 months. For more on Social
Security Disability Determinations, see the Social Security Administration website.
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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,
51
relocation will generally be unrealistic, because the
qualifying relative ordinarily will not be at liberty to relocate.
52
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.
53
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 country-
wide. 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
warning, this fact would tend to weigh heavily in favor of finding that such increased danger
51
See 10 U.S.C. 101. The term “Armed Forces” means the Army, Navy, Air Force, Marine Corps, and Coast Guard.
52
Since 8 CFR 103.2(b)(1) requires eligibility at the time of filing and at the time of adjudication, this special
consideration assumes that the qualifying relative was on active duty at the time of filing and continues to be on
active duty at the time of adjudication. See Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992).
53
See DOS Travel Warnings.
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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 caregiving duties or the continuation of one’s existing
caregiving 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.
54
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.
54
In this scenario, the children are assumed to be under age 21. See INA 101(b)(1) and INA 101(c)(1).
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If the refusal of admission would result in a substantial shift of caregiving 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 caregiving 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
55
for the child(ren) or
otherwise would take on significant parental or other caregiving 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.
56
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
would otherwise take on significant parental or other caregiving responsibilities, the qualifying
55
A primary caretaker is someone who addresses most of the children’s basic needs.
56
USCIS applies a similar principle when assessing whether there is a bona fide relationship between a father and
his child born out of wedlock. See INA 101(b)(1)(D) and 8 CFR 204.2(d)(2)(iii).
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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 caregiving
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 caregiving responsibilities.
E. 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
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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.
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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 foreseeably 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,
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would relocate in a region for which travel warnings have been issued, then that danger would
weigh heavily in favor of finding extreme hardship.
Chapter 5. Extreme Hardship Determinations
A. Evidence
Most instructions that accompany USCIS forms list the types of supporting evidence that an
applicant may submit.
57
The instructions to these forms list some of the relevant extreme
hardship factors and some possible types of supporting evidence. USCIS accepts any form of
probative evidence, including, but not limited to:
Expert opinions;
Medical or mental health documentation and evaluations by licensed professionals;
Official documents, such as birth certificates, marriage certificates, adoption papers, or
other court documents, such as paternity orders or orders of child support;
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 cultural affiliations;
Newspaper articles and reports;
Country reports from official and private organizations;
Personal oral testimony;
58
and
Affidavits (including 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
57
A waiver that requires a showing of extreme hardship to a qualifying relative is currently submitted on an
Application for Waiver of Grounds of Inadmissibility (Form I-601) or an Application for Provisional Unlawful
Presence Waiver (Form I-601A).
58
An officer who relies on personal oral testimony must note in the record that the person was placed under oath.
The officer should also take notes or record the testimony.
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person.
If the applicant indicates that certain relevant evidence is not available, the applicant must
provide a reasonable explanation and possible documentation that explains why the evidence is
unavailable.
59
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 DOS Foreign
Affairs Manual,
60
when appropriate, to verify whether these particular documents are
ordinarily unavailable in the applicant’s country.
B. 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.
61
If the applicant submits relevant, probative, and credible evidence that leads the officer to
believe that reasonably foreseeable relocation or reasonably foreseeable separation would
“more likely than not” result in extreme hardship to a qualifying relative, the applicant has
satisfied the preponderance of the evidence standard of proof.
62
To determine whether either relocation or separation is reasonably foreseeable, the officer
should consider all the evidence presented. A mere assertion or possibility does not make
relocation or separation (as the case may be) reasonably foreseeable. That evidence includes
the applicant’s explanation as to why a refusal of admission would result in extreme hardship to
a qualifying relative.
63
The applicant’s statement alone, made under penalty of perjury, will
ordinarily suffice to establish that either relocation or separation (as the case may be) is
reasonably foreseeable. An officer who nonetheless has reason to doubt that relocation or
separation (as the case may be) is in fact reasonably foreseeable may issue an RFE requesting
supporting evidence. Such evidence might include, for example, an affidavit from the applicant
or an affidavit from an adult qualifying relative. If the record contains evidence of the qualifying
relative’s subjective intent to relocate or separate (as the case may be), such evidence is
relevant to whether relocation or separation is reasonably foreseeable.
59
See 8 CFR 103.2(b).
60
See the DOS website.
61
See Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) (identifying preponderance of the evidence as the
standard for immigration benefits generally, in that case naturalization).
62
See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (preponderance of the evidence means more likely
than not). See Fisher v. Vassar College, 114 F.3d 1332, 1333-34 (2nd Cir. 1997) (holding that in other contexts
“preponderance of the evidence” means more likely than not).
63
Required by both Form I-601, Application for Waiver of Grounds of Inadmissibility, and Form I-601A, Application
for Provisional Unlawful Presence Waiver.
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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 this situation changes the requirement that all
evidence sumitted 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 an RFE unless he or she determines there is no possibility that additional evidence
available to the person might cure the deficiency.
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.
64
If the officer finds that the applicant has met the above burden, the officer should proceed to
the discretionary determination.
65
If the officer ultimately finds that the applicant has not met
the above burden, the application must be denied.
Chapter 6. Discretion
A finding of extreme hardship permits but never compels a favorable exercise of discretion. If
the officer finds the requisite extreme hardship, the officer must then determine whether
USCIS should grant the waiver as a matter of discretion. The family relationships to U.S. citizens
64
For more detailed guidance on how to interpret the requirement that the refusal of admission “would result in”
extreme hardship to the qualifying relative, see Chapter 2, General Considerations, Interpretations, and
Adjudicative Steps, Section B, Interpretations, Subsection 1, Separation versus Relocation [9 USCIS-PM B.2(B)(1)].
65
See Chapter 6, Discretion [9 USCIS-PM B.6].
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or LPRs and a finding of extreme hardship to one or more of those family members are
themselves significant positive factors to consider.
66
The conduct that triggered inadmissibility
is a relevant negative factor to consider. The officer should weigh the family relationships, the
finding of extreme hardship, and all other positive factors against all negative factors, such as
the applicant’s crimes
67
or underlying fraud.
68
Thus, for purposes of the discretionary
determination, a finding of extreme hardship that is sufficient for waivers of unlawful presence
might not be sufficient for waivers of the more serious crime-related or fraud-related
inadmissibility grounds. Ultimately, if the positive factors outweigh the negative factors, the
officer should approve the waiver; otherwise, it should be denied.
66
See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).
67
In cases where applicants who have been convicted of violent or dangerous crimes apply for waivers under INA
212(h)(1)(B) [formerly INA 212(h)(2)], discretion generally will not be favorably exercised unless either there are
“extraordinary circumstances” (for example those relating to national security or foreign policy) or the applicant
demonstrates “exceptional and extremely unusual hardship.” Depending on the gravity of the offense, even a
showing of extraordinary circumstances does not guarantee a favorable exercise of discretion. See 8 CFR 212.7(d).
68
See INS v. Yueh-Shaio Yang, 519 U.S. 26, 30-32 (1996). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 568-
69 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001).