The government has released, for public comment, draft policy guidance regarding the definition of “extreme hardship” for purposes of obtaining an immigration waiver.

If a foreign national is not deemed to be “admissible” to the U.S. (for example, because they have had unlawful presence), immigration laws still provide that their inadmissibility can be waived (pardoned) at the government’s discretion. For the government to approve a waiver application, you must establish that a US citizen or permanent resident spouse or parent qualifying relative would suffer “extreme and unusual hardship” if the foreign national was not admitted or was to be removed from the U.S. However, there is currently no definition or guidance on what is meant by “extreme hardship” and this has led to inconsistent interpretation and application by Immigration Services, Immigration Courts and the Board of Immigration Appeals.

High hopes are being pinned on Secretary of Homeland Security, Jeh Johnson’s statement that: “It is my assessment that additional guidance about the meaning of the phrase ‘extreme hardship’ would provide broader use of this legally permitted waiver.” Time will tell…

The draft guidance explains the need to demonstrate that it is “reasonably foreseeable” that the qualifying relative would either relocate or remain in the U.S. and that it is more likely than not that the relocation or separation would result in extreme hardship. Further, the draft guidance states that the hardship must be of great suffering or loss; in other words, greater than that usually encountered by a denial of admission or removal from the U.S. It also clarifies that both individual and aggregate factors can be sufficient to meet the required standard. The draft guidance also says that extreme hardship to a person other than the qualifying relative can be considered extreme hardship to the qualifying relative if it impacts the qualifying relative.

Unfortunately, while Secretary Johnson directed the government to “consider criteria by which a presumption of extreme hardship may be determined to exist”, the draft guidance does not include a list of situations that would give rise to an automatic presumption that extreme hardship exists. However, the guidance does provide for “special circumstances” that “would often weigh heavily in favor of finding extreme hardship.”