USCIS to Clarify “Extreme Hardship” and Adjudicate I-601 and I-601A Waivers More Consistently

On November 20, 2014, related to the President’s executive order on administrative immigration reforms, Homeland Security Secretary Jeh Johnson issued a memorandum directing USCIS to issue guidance on the definition of “extreme hardship.”

“Extreme hardship” is a legal term of art, and is the basis for qualifying for various types of waivers, including an unlawful presence waiver prior to immigrating to the United States. This is a very commonly sought waiver by a large number of our clients. It is the standard for approving the I-601A and I-601 waivers.

Immigration practitioners, for years, have been urging more consistent adjudication of these waivers. More recently, practitioners and applicants have noticed a spike in waiver denials on very strong cases. There is no clear definition of “extreme hardship” codified in the law, and the courts have struggled to find how difficult of a hardship would truly be considered to be an “extreme hardship.” This has led to very inconsistent adjudications by USCIS. One officer may believe one said of circumstances might not meet the standard, while another officer firmly believes that extreme hardship is established.

Also helpful, Secretary Johnson asked USCIS to clarify criteria that would presume an extreme hardship. Again, a legal term of art, the presumption of extreme hardship is a legal mechanism or default that shows an extreme hardship exists by operation of law. For example, a commonly used form of relief called NACARA presumes hardship in many types of cases. The intent here seems to be that presuming certain countries with civil unrest or lower standards of living might give rise to a legal minimum of extreme hardship in most or all cases.

The “extreme hardship” directive by Secretary Johnson, just one of many reforms in the President’s executive order, will help to create a more effective and more efficient immigration system until Congress can pass substantive immigration reform.