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In Lieu of Immigration Reform - Draft Hardship Guidance

True immigration reform appears to be off the table but a recent draft policy memo could provide helpful guidance in extreme hardship cases. Once the guidance is finalized (later this year), it would clarify how USCIS would make determinations regarding extreme hardship. Under U.S. immigration law, there are several reasons that an individual may need a waiver that is based upon a showing of extreme hardship to a qualifying U.S. citizen or lawful permanent resident relative.

There are a few "good" changes contained in the draft. Currently, in order to obtain an extreme hardship waiver, the individual must show that the qualifying relative would suffer extreme hardship two ways: separation (the individual leaves the U.S. but the qualifying relative remains in the U.S.) AND relocation (both the individual and the qualifying relative leave the U.S.). Under the draft guidance, the individual would only need to show that one or the other (separation or relocation) is reasonably foreseeable and then establish the extreme hardship for that situation.

The guidance also makes it clear that it is possible to "aggregate" hardship. This means that, if no single hardship factor must reach the level of extreme, CIS will consider a range of factors concerning hardship in their totality or in their aggregate. This could be really helpful. It means that hardship to two or more qualifying relatives may be considered "extreme" in the aggregate even if no single qualifying relative has hardship that would be extreme.

The guidance also lists several "special considerations" in determining extreme hardship. These include where the qualifying relative had previously been granted asylum or refugee status; the qualifying relative or related family member has a disability as determined by a qualified government agency; the qualifying relative is on active duty in the military service; there are DOS warning against travel to or residence in the country of destination; or, there would be substantial displacement of care of the applicant's children.

All in all, a pretty thorough and hopeful draft guidance document. 

At Miley & Brown, P.C., we applaud any efforts to that will help move smart immigration strategies forward, even without reform. We can all help. Visit Miley & Brown at where you can contact Congress to tell them what you think.

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  • Rated By Super Lawyers Craig E. Miley
  • Rated By Super Lawyers Sarah Z. Brown
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