The new provisional waiver process that was published in the Federal Register on January 3, 2013 has brought out a lot of questions about what constitutes “extreme hardship.” This is after all the standard that must be proven to USCIS. It is important to understand the hardship is not to the foreign national, but rather to the qualifying relative.
While there is no bright line test as to what constitutes extreme hardship, and it is evaluated on a case by case basis, it can include, but is not limited to: family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s).
The lead Immigration Court case from the Board of Immigration Appeals (BIA) is Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999) which lists as factors:
- the presence of lawful permanent resident or United States citizen family ties to this country;
- the qualifying relative’s family ties outside the United States;
- the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries;
- the financial impact of departure from this country;
- significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.
Extreme Hardship is proven differently and uniquely in each case and is personal to each family and can be proven in the absence of severe medical issues. Consider hiring an attorney for a process as complex as a waiver.
Ricky Malik, Esq.
