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Why proving “extreme hardship” in a Provisional Waiver is a hardship in itself.

Provisional Waivers of Unlawful Presence (Forms I-601A) are used by a foreign national who is the spouse, child, or parent of a U.S. citizen and who has been living unlawfully in the U.S. but could otherwise obtain a green card. The main requirement to get an application approved is to show that your U.S. citizen relative will suffer “extreme hardship” if your application is denied. The approval or denial of these waivers is done inside the U.S. (not outside, as it was generally the case).These waivers exist since 2013 but USCIS had not issued formal guidelines.

This week, the agency issued draft guidelines for the determination of “extreme hardship” for these Provisional Waivers, but applicants will continue to struggle to get approved. Although meant for clarification, the guidelines describe—for the most part—what USCIS is already doing when adjudicating Provisional Waivers. The problem is not in the guidelines; the problem is in the execution.

The guidelines seek to clarify (1) what qualifies as “extreme hardship” and (2) what the standard for proving it is (“more likely than not”). “More likely than not” essentially means a 51% chance of something happening. If an applicant need only show that there is a 51% chance of suffering extreme hardship if his family must relocate outside the U.S. or if his family must stay in the U.S. without the applicant, this is a reasonable task. The problem lies in the manner in which USCIS concludes that there exists—or not—“extreme hardship.”

Defining “extreme hardship.”

Regarding “extreme hardship,” the draft guidelines merely re-state what USCIS had already relied on when making such determination:  the case of Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996), from the Board of Immigration Appeals (“BIA”), which is a 20-year-old case that says that “extreme hardship” is that which is beyond what is “ordinarily associated with deportation” and that it varies according to each individual case. USCIS officers always quote this case when issuing applicants requests for additional evidence or when out-flat denying relief, but what officers do not realize is that this very case is very favorable to provisional waiver applicants.

Matter of O-J-O- is about a 24-year-old Nicaraguan male who was able to prove extreme hardship on a suspension of deportation case (yes, this is not a provisional waiver application, but USCIS relies on the analysis in this case anyway). The applicant in Matter of O-J-O- had no children, no wife, and had been unlawfully in the U.S. for 10 years. He attended school, had no criminal record, was the Deacon of his church, spoke fluent English, managed a small business he inherited from his deceased father, and played baseball recreationally. The Board decided that if the applicant were to return to Nicaragua, and leave all these lived experiences in the U.S., “[s]uch ordinary hardships, while not alone sufficient to constitute extreme hardship, are considered in the assessment of aggregate hardship.” The combination of hardships ultimately resulted in extreme hardship and the Board found in favor of the Nicaraguan male.

While this BIA case shows that USCIS officers should consider each hardship factor individually and THEN consider them in the aggregate, USCIS does the exact opposite: they consider each factor individually, and if they find that each of them is not enough to constitute hardship, then the sum of all of them should be no extreme hardship either—which is a flawed analysis. In our firm, we have several Requests for Evidence letters from USCIS misinterpreting the analysis of Matter of O-J-O- in this manner, and we have to promptly inform the agency of their error.

Should USCIS apply the analysis in the correct manner—as explained in the Matter of O-J-O- case—, more approvals would certainly happen. Many Provisional Waiver candidates have families and businesses of their own, have been living in the U.S. for many years, and could easily show more hardship than that one found in the case of the single, childless, 24-year-old Nicaraguan male in Matter of O-J-O-.  USCIS’ draft guidelines are unlikely to help applicants if the Department continues to misapply this case and their own guidelines.

The fix? Reviewability. The reason why the draft guidelines are of no real use and why USCIS officers continue to abuse their discretion in denying Provisional Waivers is the fact that applicants cannot appeal a denial of a Provisional Waiver. Similarly, the agency will not accept a request to reopen or reconsider a case. This is why it is very important to have a strong and complete application the first time you submit it with USCIS. Otherwise, re-filing (and repayment of fees) is the only option.

We have filed thousands of waivers at Kuck Immigration Partners, so we know very well what USCIS looks for in an application. If you are interested in filing a Provisional Waiver, you can contact us to learn more about what evidence to use and how to effectively present your case so you can win it.

Johanna Cochran, Associate Attorney


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