How to Prove Extreme Hardship in Immigration Waivers for Spouses and Family

Waivers Are Key

Extreme hardship waivers are a specific type of immigration waivers that use the same legal standard: extreme hardship. Not all waivers use this standard. Generally speaking, proving extreme hardship means showing that the hardship suffered by someone is above and beyond that which a normal person might suffer. This same standard is used for a variety of waiver types, including those for unlawful presence in the US, misrepresentation or immigration fraud, and certain criminal convictions.

Why Request an Extreme Hardship Waiver?

The reason why someone requests a waiver is because they are considered to be inadmissible and ineligible to get a visa or green card without a waiver. If someone is told they need a waiver, it’s not optional and there may be tight deadlines. In ideal circumstances someone will be aware of the waiver requirement before they need to prepare one. They are time consuming, and it is not fun to prepare a waiver that has to be filed within 30 days.

What Types of Waivers Use the Extreme Hardship Standard?

Extreme hardship is a waiver standard, not a type of waiver. The types of waivers correspond with the grounds of inadmissibility. For example, someone who had unlawful presence in the US needs an unlawful presence waiver. That waiver uses the extreme hardship standard. A waiver for fraud or misrepresentation uses the same standard. Some criminal waivers also use the same standard. Because inadmissibility and waivers are complex issues, it is highly recommended to schedule a consultation to review the situation.

What is Extreme Hardship for Immigration Waivers?

Extreme hardship is just a standard that the immigration law requires someone to prove in order to be approved for a waiver. You might ask, extreme hardship to whom? It actually depends on the type of waiver. But, generally, the standard is referring to someone other than the person who is trying to immigrate or get a benefit. It is frequently a US Citizen or Permanent Resident spouse or parent. Notably, children are not usually included. But, hardships to children can be an important part nevertheless, because hardships to children are frequently hardships to spouses and parents.

An experienced attorney will be able to fit a family’s situation into the extreme hardships standard. This requires a good understanding of the case law and how USCIS has interpreted it. Failing to understand the standard may well mean denial of the waiver. The standards are actually well documented and can be reviewed by anyone at the USCIS Policy Manual, available at https://www.uscis.gov/policy-manual/volume-9-part-b

In particular, it’s very important to review the list of hardship factors that USCIS should consider. USCIS does not, in fact, always consider these factors. It’s likely that some of the people who decide waivers have not reviewed the factors. As a result, it might be helpful to use the hardship factors as a checklist for documenting and arguing the case: https://www.uscis.gov/policy-manual/volume-9-part-b-chapter-5

Additionally, some factors are really important. They are so important that USCIS considers them “particularly significant” and will generally approve a case if those factors are present. That’s important when approval of a waiver is the key step to approval of a green card. Every single waiver case should evaluate whether there are any of the “particularly significant factors” present. Those can also be found at https://www.uscis.gov/policy-manual/volume-9-part-b-chapter-5

Do I Need A Lawyer for an Extreme Hardship Waiver?

Lawyers are not required for immigration cases, but you can gain a lot by speaking to an experienced professional who has prepared and received approvals for many extreme hardship waivers. A lawyer who works on waivers will know how likely it is to be approved and how to make the waiver stronger. There’s no reason to file a case without scheduling a free consultation.

What Are The I-601A Waiver Processing Times?

Form I-601A

The USCIS Form I-601A is used to apply for a provisional unlawful presence waiver. Immigration waivers are used in cases where someone is inadmissible, meaning that they are ineligible for a visa or for a green card. The I-601A is special because it is only used for one specific ground of inadmissibility: those people who have spent time unlawfully in the US and who intend to leave to attend an interview at an embassy or consulate. It cannot include other waiver reasons. Those applying for a waiver abroad often use a similar but different form, the I-601.

Am I eligible for the I-601A waiver process?

Not everyone is eligible to use the waiver process, and some people are eligible to adjust status in the US without getting this waiver. First, it’s important to understand that the I-601A can only waive a person’s unlawful presence in the US once they have left. It cannot help in cases where someone has a criminal conviction, has made a misrepresentation, has entered unlawfully multiple times, or many other situations. Even if a waiver is approved on form I-601A, if there is another type of inadmissibility, the person could be denied at their interview abroad.

There is no better way to figure out if the I-601A process works for you and your family than to schedule a free immigration consultation.

How long does the I-601A take? What are the I-601A processing times?

There is a lot of variation in processing times for the I-601A provisional waiver. However, as of October 2020, it is common for I-601A waivers to be in process for longer than one year. This is likely due to the pandemic and slower overall processing by USCIS. USCIS generally follows a “first in, first out” rule of processing cases which are filed first, but there is some variation even with that rule.

Sometimes, a delay means that a case is going to be issued a “Request for Evidence” or RFE. Those requests typically are used to ask for more evidence of “extreme hardship.” It’s important to work with a lawyer to review the reasons for any requests for evidence as well as what kinds of evidence might be useful to show extreme hardship. Schedule a consultation today to review the best practices for preparing this kind of immigration waiver.

USCIS Updates Guidance on Discretion

USCIS

USCIS announced updates to its guidance on discretion in immigration decisions on July 15, 2020. While this guidance is aimed at adjudicators who are deciding whether to approve a benefit, it should be useful for arguing positive discretionary factors as well. The updates can be found in the USCIS Policy Manual:

https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-8

https://www.uscis.gov/policy-manual/volume-10-part-a-chapter-5

Updated Filing Addresses for U-Visa Applications and U-Visa Adjustment of Status

USCIS

USCIS announced on June 29, 2020, applications for U Visas and adjustments of status based on those with U Status may have a new filing address. Residents of some states will be filing at the Nebraska Service Center rather than at the Vermont Service Center. USCIS is allowing for a 30-day grace period, after which applications may simply be rejected.

For up to date filing address information, always consult the USCIS form page:

U Visa Applications Rejected for Incompleteness and Form Errors

Blank Form

USCIS has recently started strictly enforcing form instructions that require completely filling out forms, which has caused a great deal of confusion and extra work. Most USCIS forms require that every single question that is not optional is answered in some fashion, even if that means writing “none” or “N/A” (not applicable). Many people are unaware of this requirement and simply do not answer form questions that they do not understand or do not think apply. If a form is incomplete, USCIS may simply reject and return the entire application. This is extremely unfortunate and problematic, and results in serious delays that can severely prejudice U Visa applicants

USCIS currently has a warning posted on the page for form I-918 to warn applicants of this:

ALERT: We may reject your Form I-918 or your Form I-918 Supplement A if you leave a field blank, unless the field is optional. Optional fields include the safe mailing address as well as fields you should only complete if you answered yes to a previous question. You must provide a response to all other questions, even if the response is “none,” “unknown” or “n/a.”  We will reject a Form I-918 or a Form I-918 Supplement A that has, for example, an empty field for middle name, for current immigration status, or for information pertaining to a spouse or child.

https://www.uscis.gov/i-918

Because these rules are being strictly enforced now, it’s important to closely review all forms and make sure that each and every space has something in it. In many cases, writing “N/A” is easy enough, but it is difficult for many applicants to know exactly what the form questions are asking and how to answer them. Working with an attorney during this process is highly recommended.

New Changes to Asylum Applications and Work Permits

Federal Register

On June 26, 2020, the Department of Homeland Security published a final rule titled “Asylum Application, Interview, and Employment Authorization for Applicants,” 85 Fed. Reg. 38,532. This rule was proposed on November 14, 2019 and received numerous comments. It will become law on August 25, 2020.

The most serious changes for asylum applicants will be the longer waiting period before one can file for work authorization, and the denial of work authorization entirely for those who were paroled after being found to have a credible fear of persecution. There is also a new bar with some exceptions for those who entered the US unlawfully. Here is a summary of changes made in this rule:

  • It makes it easier for DHS to reject asylum applications that do not follow the instructions exactly
  • It removes the 30-day period after which an application for asylum that has been received is considered to be properly filed, even if it did not comply with the instructions
  • Changes provisions related to delays caused by requests to amend or supplement an application
  • Extends the initial work permit application waiting period to 365 days, up from 150 days
  • Categorically denies work authorization to anyone:
    • Convicted of an aggravated felony anywhere and at any time
    • Convicted of a “particularly serious crime” after August 25, 2020
    • Anyone for whom there are serious reasons to believe has committed a serious non-political crime outside the United States
    • Who fails to establish that they are not prohibited from receiving asylum due to criminal grounds under 8 C.F.R. 208.13(c)
    • With asylum applications denied during the 365 days following application
    • Filing asylum applications after August 25, 2020 and after the one-year deadline of their arrival in the US, unless they are determined to fall within an exception or was an unaccompanied minor when the application was filed
    • Who entered or attempted to enter the US unlawfully after August 25, 2020, unless that person presented themself to immigration within 48 hours, indicated their desire to apply for asylum, and had good cause for entering illegally (which is defined very narrowly)
  • Any delays caused by the asylum applicant that are still outstanding at the time of filing a work authorization request will result in denial of the work authorization request
  • Imposes a 14-day requirement to submit documentary evidence in advance of an asylum interview, but an asylum officer may still consider that evidence if it is submitted later
  • More detailed and strict consequences for failing to appear for biometrics or an interview, but allowing USCIS discretion to reconsider actions taken if an applicant misses those appointments
  • Prevents those individuals paroled from custody after a positive credible fear finding from getting work authorization

New Travel Ban Aimed at High-Skilled Workers

US Embassy Nairobi

On June 22, 2020, The Trump Administration issued a new travel ban, effective June 24, 2020 at 12:01 AM. The new proclamation expands and modifies the one made on April 22, 2020, which affected a broader group of immigrants. It also adds new sections targeting high-skilled immigrants seeking to enter the US, particularly those in H-1B (specialty occupations), H-2B (temporary non-agricultural workers), J (exchange visitors) and L (intra-company managers and employees) categories.

Here are some key provisions:

  • It amends the prior proclamation on April 22, which now terminates on December 31, 2020 (previously ending June 22, 2020), and may be amended periodically, but could also be extended
  • It is an entry ban, like most past travel bans
  • It includes anyone who is accompanying or “following to join” someone in these classifications
  • It primarily affects H-1B, H-2B, J, and L visa applicants
  • J exchange visitors are only banned in the intern, trainee, teacher, camp counselor, au pair, or summer work travel program categories

Many people will want to know who is not included in this ban. There are a number of exceptions, including:

  • Anyone who is inside the US already
  • Anyone who already has a visa still valid as of June 22, 2020
  • Anyone who has non-visa travel documents including transportation letters, foils, and advance parole whether issued before or after the ban
  • Lawful permanent residents or spouses and children (under 21) of US Citizens
  • Those seeking to enter to provide temporary labor and essential services to the US food supply chain (not restricted to any particular visa category)
  • Anyone who DOS or DHS determines it is in the national interest to allow to enter

It is important to understand that this is essentially a visa ban, which impacts mostly people who would apply for visas at embassies and consulates abroad. It also will impact any family seeking to come as dependents on their spouse’s or parent’s visa.

There are some additional provisions that hint of more changes to come. The proclamation requires the Secretary of Labor to ensure that those seeking EB-2, EB-3, and H-1B status do not disadvantage US workers, but does not specific any particular actions other than investigations. It remains to be seen what the Department of Labor might do beyond what labor protections are already established in law and regulations.

The order also cites INA 214(g)(3) and suggests that this provision allows for DHS to issue regulations “regarding the efficient allocation of visas” but this is entirely unclear. This statute is silent on any restrictions that might be applied to H-1B workers.

What is the potential impact of this executive order? It is significant. These visa categories are extremely important tools that companies use to attract and keep foreign talent. They allow people to come and contribute to the US economy and eventually become residents and US Citizens. Many people who started on H-1B and L visas, for example, went on to start companies that employ significant numbers of people. This executive order sends a clear message to people that the US government isn’t interested in the contributions or talents that immigrants have to offer, a message that is completely contradictory to decades of US immigration policy and contrary to the economic interests of many US companies.

Changes to the Work Permit Process for Affirmative Asylum Cases

Work Permit

The Department of Homeland Security (DHS) will publish a new final rule on June 22, 2020, effective August 21, 2020, modifying features of the work permit process for asylum seekers. Some of the changes being made include:

  • Eliminating the 30-day timeframe for adjudication of work permit requests for first-time applicants who have pending asylum applications
  • Elimination of the 90-day submission requirement for asylum-based work permit renewals

Why is DHS proposing this rule now? First and foremost, the agency wants to stop people from applying for asylum. That has been a top objective of the Trump Administration since it took office. Part of the strategy is attacking not only the asylum process itself, but also the benefits that people who are applying for asylum are able to obtain. Here, there is a very favorable provision that allows asylum-seekers to get work permits quickly. This makes sense, because they already have to wait 150 days prior to filing the work permit application, and together with the 30 day adjudication period this means a full six months must pass before asylum seekers get work authorization. That period of time would strain any person’s financial resources and it causes hardship to asylum-seekers, who are already facing numerous hardships.

DHS cites many rational reasons for wanting to change this rule, such as the large increase in asylum applications and fraud concerns. But it is unfortunate to see DHS resorting to lowering its standards rather than decreasing processing time for work permits across the board. It should not take six months for DHS to issue a work permit except in rare cases where there is a delay due to background checks, suspected fraud, or other concerns. If DHS cannot do so, it should focus on increasing the efficiency of its processes rather than settling for delaying benefits for applicants.

Furthermore, DHS should have considered alternative options to simply eliminating the 30 day processing requirement for work permits. As one example, DHS left intact the requirement to wait 150 day prior to applying for work authorization. 8 C.F.R. Sec. 208.7(a)(1). Together with the 30 day timeframe, this period equaled the statutory period requiring asylum applicants to wait 180 days before approval of work authorization. If DHS simply wanted more time to adjudicate the work permits, it could allow asylum applicants to file prior to the 150 day period, even concurrently with the asylum application itself, and then would have a full 180 days to process the work permit application. Simply put, the 150 day rule is as artificial as the 30 day rule, but here DHS is only changing the part that benefits asylum applicants while leaving the part that is to their detriment intact.

DACA Applications After the Supreme Court’s Decision

Many people want to know if they can now file for additional DACA benefits, including initial DACA applications and requests for advance parole. These are good questions but have not been resolved as of today. It is expected that USCIS will issue clarifying guidance soon, and that President Trump might even issue a new rescission notice that more clearly complies with regulations. Until that happens, what options exist?

The short answer: new, initial DACA applications should be accepted and processed by USCIS, but whether they will actually do so is unclear. And, DHS could terminate DACA again at any moment. Continue reading for more details.

It is important to review what has happened up to this point. On September 5, 2017, Acting Secretary Elaine C. Duke issued a memorandum rescinding the DACA program in its entirety. All benefits associated with the original DACA memorandum and program were then terminated if that memorandum did not specify otherwise. There were certain benefits that continued to exist, but only for a temporary period of time.

What happened in practice was that initial DACA applications stopped immediately, many people rushed to file renewal applications, and pending I-131 applications were terminated and people were issued refunds. People have actually been able to renew DACA without stop because several courts enjoined the DACA programs recission.

Now, years later, the Supreme Court decided that the Trump Administration’s actions were illegal in its decision dated June 18, 2020. The Court was not really ruling as to the legality of DACA, but rather the legality of its termination. US law constrains the actions that agencies can take in important ways, and the Supreme Court decided that DHS:

failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.

DHS v. Regents of the Univ. of Ca., 591 U.S. ____ p. 29 (2020).

The exact language of the Supreme Court’s decision is important for assessing the current status of the DACA program. The Court stated:

The judgment in NAACP, No. 18–588, is affirmed.7 The judgment in Regents, No. 18–587, is vacated in part and reversed in part. And in Batalla Vidal, No. 18–589, the February 13, 2018 order granting respondents’ motion for a preliminary injunction is vacated, the November 9, 2017 order partially denying the Government’s motion to dismissis affirmed in part, and the March 29, 2018 order partially denying the balance of the Government’s motion to dismiss is reversed in part. All three cases are remanded for further proceedings consistent with this opinion.

DHS v. Regents of the Univ. of Ca., 591 U.S. ____ p. 29 (2020).

As stated above, the judgment in one of the consolidated cases, NAACP v. Trump, 298 F. Supp. 3d 209, was affirmed. So we need to consider what that court said in order to know what the Supreme Court was affirming. Here is the order by that court that was affirmed:

Upon consideration of [8] defendants’ motion to dismiss and [28] plaintiffs’ motion for summary judgment, and for the reasons stated in the Memorandum Opinion issued on this date, it is hereby

ORDERED that [8] the government’s motion to dismiss is GRANTED as to plaintiffs’ procedural Administrative Procedure Act (“APA”) claim (Count I) and plaintiffs’ information-sharing claim (Count V), DENIED as to plaintiffs’ substantive APA claim (Count II), and DENIED IN PART AND DEFERRED IN PART as to plaintiffs’ constitutional claims (Counts III and IV); it is further

ORDERED that [28] plaintiffs’ motion for summary judgment is GRANTED as to their substantive APA claim but DENIED as to their procedural APA claim; it is further

ORDERED that the Department of Homeland Security’s (“DHS”) September 5, 2017 decision to rescind the Deferred Action for Childhood Arrivals (“DACA”) program is VACATED and REMANDED to the agency; it is further

ORDERED that the Court’s order of vacatur is STAYED for ninety days; and it is further

ORDERED that the parties shall file, by not later than Friday, July 27, 2018 a joint status report stating whether DHS has issued a new decision rescinding DACA and whether the parties contemplate the need for further proceedings in this case.

***

SO ORDERED.

/s/ JOHN D. BATES

NAACP v. Trump, 298 F. Supp. 3d 209

And so, the order was was affirmed on June 18th, 2020, explicitly “ORDERED that the Department of Homeland Security’s (“DHS”) September 5, 2017 decision to rescind the Deferred Action for Childhood Arrivals (“DACA”) program is VACATED and REMANDED to the agency…” Because that decision was vacated, it is as though it never existed. DHS cannot rely on the decision in any part until it issues a new decision rescinding the DACA program. At that point, the litigation process will likely begin anew and most likely at some point the Supreme Court will allow the Trump Administration to terminate DACA since it was only due to its own errors that it lost in court to begin with.

In reality, the Trump Administration is not likely to have enough time left to carry out that policy. It will take years for a new decision to make its way to the Supreme Court, and it is likely that some court will step in to enjoin a new rescission order. Or, Congress could finally take action to give DACA-holders a permanent status, which would resolve all of these issues.

With all of the above in mind, what options do those with DACA, those who qualified for DACA but did not request it, and those with DACA who want to travel on advance parole have? As said above, the situation is new and there are no guarantees. But it seems, generally speaking and not for any specific person, that:

  • Anyone who meets the original requirements for DACA can now file an initial DACA application, and USCIS has no lawful basis to refuse that until they formally rescind DACA again. However, this does not mean that USCIS will accept those applications, and everyone attempting this should accept that it may need to be litigated.
  • DACA renewal applications should be able to continue as they were before the Trump Administration tried to end it, which is not terribly different from the situation we have been in.
  • Request for I-131 parole (travel permits) are not likely to work, but for someone with an urgent need to travel there might be some value in trying.

Resources

Supreme Court Holds that Trump Administration Unlawfully Terminated DACA, Deferred Action for Childhood Arrivals

In a decision issued by the Supreme Court on June 18, 2020, Chief Justice John Roberts wrote that the Trump Administration violated the law when it terminated DACA (Deferred Action for Childhood Arrivals) for hundreds of thousands of immigrants. The decision was based on the Trump Administration’s actions taken in terminating the program, its failure to fully consider the available alternatives to complete termination, and ignoring the reliance interests of many DACA holders who had been promised protection by the US Government.

This decision is an important protection for those who were brought to the United States as children, and who lived their lives here like any child born in the United States, but have no legal options to become residents due to the structure of the immigration laws. While this decision is extremely important in the short term, Congress needs to act to provide a long-term remedy to these individuals so that they can obtain residency and eventually citizenship.

MPP Hearings Rescheduled Through July 17th, Resume on July 20, 2020

Executive Office for Immigration Review

The US Government recently announced that MPP hearings were again being delayed due to the ongoing COVID-19 pandemic. DHS and EOIR issued a joint statement today explaining that hearings scheduled through July 17, 2020 will be rescheduled, and that they anticipate resuming hearings on July 20, 2020. Individuals should continue to check case status and the EOIR’s website to ensure up to date and accurate information.

Non-Detained Immigration Court Hearings Postponed through June 26, 2020 except in Honolulu

Executive Office for Immigration Review

The Executive Office for Immigration Review (EOIR) sent an update on May 29, 2020, stating that all immigration court hearings for non-detained individuals are now postponed through June 26, 2020. This means that the courts will reopen for non-detained hearings on June 29, 2020. This new announcement does not apply to the Honolulu Immigration Court, which is resuming hearings for non-detained individuals on June 15, 2020. As with before, detained individuals are still having master and individual hearings in most courts around the country, subject to frequent interruptions.