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Updates to the United States Citizenship and Immigration Service (USCIS) Policy Manual Volume Nine, regarding Waivers, were published October 21, 2016, effective December 5, 2016. In the updates, the evidence standard for certain compelling arguments has been lowered and useful guidance on what USCIS is looking for in extreme hardship cases has been provided, but the extreme hardship standard has not been substantially changed. The bulk of the updates are a mere clarification of existing policy. While some optimistically view the clarifications as an easing of the standard, the opposite is equally as possible; the standard may well have just become stricter. Whether the standard is looser or stricter, the difference is marginal either way.

The one portion of the updates that is clearly new is the change in evidence standard for certain compelling arguments. Normally the waiver applicant (the foreign national) must prove why the qualifying relative cannot move abroad – relocation – and cannot simply remain in the United States without the applicant – separation. Extreme hardship must be proven with arguments and evidence in both scenarios in order for the waiver application to be approved. The updates at first appear to change that so that the applicant can choose to prove only one or the other, but upon closer review it becomes unclear what has actually changed. Here are some excerpts from the manual on the subject:

“An applicant may show that extreme hardship to a qualifying relative would result from both separation and relocation. If an applicant who submits evidence related to both relocation and separation ultimately demonstrates extreme hardship with regard to only one scenario, the USCIS officer should determine, possibly through the issuance of an RFE, whether the qualifying relative has established which scenario is more likely to result from a denial of admission. However, an applicant is not required to show extreme hardship under both scenarios. An applicant may submit evidence demonstrating which of the 2 scenarios would result from a denial of admission and may establish extreme hardship to one or more qualifying relatives by showing that either relocation or separation would result in extreme hardship.”

“If the applicant seeks to demonstrate extreme hardship based on separation or relocation, the applicant’s evidence must demonstrate that the designated outcome “would result” from the denial of the waiver. The applicant may meet this burden by submitting a statement from the qualifying relative certifying under penalty of perjury that the qualifying relative would relocate or separate if the applicant is denied admission. The statement should be sufficiently detailed to adequately convey to USCIS the reasons why either separation or relocation would likely result from a denial of admission. The applicant may also submit documentation or other evidence, if available, in support of this statement.”

“However, if the USCIS officer determines that such a statement is not plausible or credible (including because it is inconsistent with the evidence of hardship presented), the officer may request additional evidence from the applicant to support the designation that the qualifying relative would separate or relocate.”

What all of this means is that the applicant and qualifying relative cannot merely pick one of the two scenarios – relocation or separation – for proving the case. It is not as simple as choosing the option with the strongest arguments and evidence and ignoring the other. That would not be consistent with case law. In the waiver application arguments and possibly evidence must be presented which convince the adjudicator that the option not selected is unacceptable even in the face of the extreme hardship for the option selected. This begs the question, “How is this different from having to prove extreme hardship for the option not selected?” For many cases it is no different from having to prove extreme hardship for both. However, one can imagine scenarios where there has been a lengthy marriage and the US citizen spouse simply states, “I have been married to this woman for ten years. I don’t know how to be away from her. I go where she goes.” Whereas before a statement from the qualifying relative to that effect would have been insufficient and additional evidence demonstrating the expected impact of separation would have been required, now a detailed, sworn statement is likely to suffice, but note that such detailed, convincing, sworn statement is required. The difference between the previous standard and the new standard is not so much the strength of the argument, but the amount of evidence. Also, the qualifying relative does not have to imagine or describe what the impact of that unselected option would be, but rather can describe why that option is unthinkable and the qualifying relative finds it difficult to imagine what the impact would be because the option would never be chosen under any circumstances. Effectively, the new standard allows the adjudicator to take judicial notice that one of the options would create extreme hardship where the argument presented is credible and convincing in light of the other facts of the case.

The requirement that the qualifying relative’s statement be under the penalty of perjury leaves attorneys and applicants to wonder whether it needs to be notarized. USCIS is well aware of the problem of notary publics practicing immigration law without a license (“notarios”) and has taken steps to discourage this practice. There has been a decline in the requirement of notarized documents in immigration law over the past decade, most notably on the I-864, though USCIS to my knowledge has never explicitly stated that its decision not to require notarized documents was related to its efforts to stop the unauthorized practice of law. The revised waiver manual does not state one way or another whether the sworn statement from the qualifying relative needs to be notarized or not. My personal opinion is that it does not need to be notarized and indeed in my own practice I use notary publics as sparingly as possible in order to avoid giving the impression to the immigrant community that notary publics are in any way a necessary part of the immigration process. Please note that immigration court is different.

In the updated manual, the extreme hardship standard is explained in detail, not with a clear, succinct definition, but rather with a series of lengthy examples of what would and would not constitute extreme hardship; I will decline to quote those here due to their length. Those who have been filing a substantial volume of waiver applications will notice that the description of the standard appears to be generally consistent with attorneys’ experience. While the description might not be especially exciting for seasoned practitioners, newer practitioners and pro se applicants will be relieved to finally find a detailed description of the standard from a reliable government source. One concern that I have in looking at the examples of what is not extreme hardship is that I have had cases approved on similar facts. While I have to agree with the government that such cases are very weak and I was previously surprised to have those approved in the past, I worry that the approval rate for similar cases will decline in the future now that the government is stating explicitly that these cases with weak fact patterns do not meet the standard.

The updated manual provides a much longer list of possible hardship considerations than has previously been put forth by the government. The list includes not only factors that might prove hardship such as fear of persecution, the economic impact of the loss of a business, or major political upheaval in the designation country, but also factors that would tend to disprove extreme hardship such as the qualifying relative’s family ties in the relocation country or the qualifying relative’s previous residence in the relocation country. The list is not exhaustive and is only meant to provide the public with a better understanding of what types of things the adjudicator will be considering. The suggestions aren’t really new or surprising, but newer practitioners will find the list useful. As always, I would urge attorneys to keep in mind that not all possible arguments for a case are strong ones, some potential arguments are directly contradictory, and quality of arguments and evidence prevails over quantity.

Of especial interest is the section on “Particularly Significant Factors” where USCIS provides a short list of five fact patterns that are considered especially strong. When USCIS was first contemplating this new guidance several years ago, officials had openly stated that they would consider factors that would create a presumption of extreme hardship. It is clear in the narrative for this new section, that USCIS decided against creating a new “presumption of extreme hardship” standard. A summary of the list of five, with commentary is as follows:

1. Qualifying Relative Previously Granted Iraqi or Afghan Special Immigrant Status, T Nonimmigrant Status, or Asylum or Refugee Status
Comments: I’ve seen this once in my career. It’s rare, but it happens and when it does, it’s always been an inherently strong case.

2. Qualifying Relative or Related Family Member’s Disability
Comments: The term “disability” does not mean the same thing to everyone, and not all disabilities have the same level of severity. The manual indicates a preference for a previous determination of disability by a government agency (res judicata), though not absolutely required, and evidence that either necessary services for the qualifying relative are not available abroad, in the case of relocation, or the person’s disability would be poorly managed in the US without the applicant, in the case of separation. Not every case where the attorney can think of a disability argument will be approved.

3. Qualifying Relative’s Military Service
Comments: They are looking for active service, including reserves, but not prior service. Current or imminent deployment is not a requirement.

4. DOS Travel Warnings
Comments: It is easy to overestimate the impact of the inclusion of this item on the list. It is not “any” travel warning that USCIS is referring to, but specifically the following travel warnings: (1) DOS urges avoiding all travel to the country or region because of safety and security concerns; (2) DOS warns against all but essential travel to the country or region; (3) DOS advises deferring all non-essential travel to the country or region; and/or (4) DOS advises U.S. citizens currently in the country or region to depart. They will also accept as evidence for this argument the above travel warnings for a specific part of the applicant’s country if it can be shown convincingly that the region is where the applicant would go. The above warnings are uncommon and do not apply to every developing country.

5. Substantial Displacement of Care of Applicant’s Children
Comments: It is refreshing to have this item listed as there have been insinuations of inconsistency on this issue in the past. HOWEVER, placing the item on the list only clarifies that the care of the children is a factor despite them not being qualifying relatives themselves. It does not state that the argument rises to the level of extreme hardship more often than not. In the description it says that for one parent who was previously only the primary income earner OR the primary caregiver to then take on both responsibilities is an extreme hardship if such responsibilities and challenges exceed those of the typical single parent. The responsibilities and challenges of the typical single parent are pretty high, so proving they are higher for the case-at-hand means the argument will not be as universally strong at it initially seems to be.

It is a bit disappointing that USCIS spent so little time in the manual discussing discretion. It only gets a two vague paragraphs, as though it is an afterthought. Discretion is huge. In my own comments to USCIS after they published their draft changes to the manual, I urged USICS to spend more time talking about discretion and to discuss the interplay between discretion and extreme hardship. In the final manual, the section on discretion does little more than state that a case can be denied despite a finding of extreme hardship if the adjudicator thinks the applicant does not merit an approval. Do not be misled by the limited attention discretion received. It is a major part of the case.

The extreme hardship standard for waiver cases has long been lenient. Per the manual and case law, “extreme hardship” is generally greater than the normal hardship one would expect a qualifying relative to experience if an applicant’s waiver application is denied. By that reasoning, one would expect at least half the applications to be denied. Current statistics are not available, but the consensus in the immigration attorney community is that approval rates – at least for unlawful presence waivers – are well above 50%. In this attorney’s personal experience, a well-prepared waiver application without aggravating factors had a better than 90% chance of approval, even when the hardship factors for the case were weak. In my humble opinion, I just don’t see how USCIS can be more generous in the extreme hardship definition than it has been in the past. If the new manual makes some cases easier to approve, I have to imagine that it will make some cases easier to deny. The case examples in the manual describing deniable cases may do just that.