On November 20, 2014, President Obama’s executive action on immigration effectively brought millions of our country’s unauthorized immigrants out from the shadows and onto a legitimate path toward citizenship. While the executive action promises to relax the threshold for extreme hardship while expanding the scope of who can experience hardship, the elements of what constitutes hardship stands to change very little in the world of Provisional Waivers.
Under current doctrine, practitioners must show that 1) “refusal of admission to the United States would result in extreme hardship to the U.S. Citizen or Legal Permanent Resident spouse or parent, and 2) a waiver is warranted as a matter of discretion.” Not surprisingly though, extreme hardship is not statutorily defined and practitioners and their clients must instead rely on case law to decipher what rises to the level of extreme hardship. Guideposts identified by USCIS however, such as in the Matter of Andazola-Rivas, where the court found that “[e]xtreme hardship does not need to be unique or unusual,” and in the Matter of Nagi, holding, “extreme hardship is hardship that is greater than common consequences of the bar to admissions, i.e. separation, financial difficulties, etc…,” have proven to be quite helpful. With this in mind, practitioners have decidedly focused on demonstrating three to four factors that either in themselves, or in aggregate, rise to the level of extreme hardship: economic hardship, psychological or emotional hardship and physical hardship.