USCIS’s Draft Guidance on the Extreme Hardship Standard

In becoming permanent residents, some applicants must overcome certain bars to admission, such as unlawful presence in the United States. In doing so, a waiver is required in which the applicant must prove extreme hardship to a qualifying relative, for instance, a U.S. Citizen petitioning spouse. Throughout the years, however, USCIS has failed to apply the hardship standard consistently leaving many questions open as to what constitutes “extreme hardship.” On November 20, 2014, as part of President Obama’s executive action, Secretary of Homeland Security Jeh Johnson directed a memo to USCIS’s Director Leon Rodriguez to “clarify the factors that are considered by adjudicators in determining whether the ‘extreme hardship’ standard has been met.” In response, USCIS issued draft guidance on what constitutes “extreme hardship” for purposes of an immigration waiver and seeks the public’s feedback, with comments due by November 23, 2015. This is a good step by USCIS and a great opportunity for stakeholders to review the detailed guidance and make recommendations.

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