DISCLAIMER: THE INFORMATION IN THIS BLOG IS PROVIDED FOR GENERAL INFORMATION ONLY. THE OFFICE OF NORKA M. SCHELL, LLC AND/OR ITS MEMBERS AND/OR EMPLOYEES MAKE NO WARRANTY REGARDING THE ACCURACY OF THIS INFORMATION. WHILE SOME OF THE INFORMATION IS ABOUT LEGAL ISSUES, IT IS NOT LEGAL ADVICE.
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March 10, 2017
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: Extreme Hardship Waivers
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: Extreme Hardship Waivers: LAW OFFICES OF NORKA M. SCHELL, LLC 11 Broadway, Suite 615 New York, NY 10004 Tel. (212)564-1589 / (973)621-9300 Website: www.lawsc...
Extreme Hardship Waivers
LAW OFFICES OF NORKA M. SCHELL, LLC
11 Broadway, Suite 615
New York, NY 10004
Tel. (212)564-1589 / (973)621-9300
Website: www.lawschell.com
A. Overview
Waivers of inadmissibility generally authorize U.S. immigration authorities to balance competing policy considerations when determining whether a foreign national should be admitted to the United States despite his or her inadmissibility.
On the one hand, the foreign national has engaged in conduct that Congress considers serious enough to render the individual inadmissible to the United States. On the other hand, Congress specifically authorized waivers of these grounds of inadmissibility for those cases in which the refusal of admission “would result in extreme hardship.” To meet this “extreme hardship” requirement, the applicant must show that refusal of admission would impose more than the usual level of hardship that commonly results from family separation or relocation. Congress clearly intended the waiver to be applied for purposes of family unity and with other humanitarian concerns in mind.
B. What is Extreme Hardship
The term “extreme hardship” is not expressly defined in the Immigration and Nationality Act (INA), in Department of Homeland Security (DHS) regulations, or in case law (although DHS regulations and certain Board of Immigration Appeals (BIA) decisions have provided some relevant guidance with respect to what may constitute extreme hardship in certain contexts). As the U.S. Supreme Court recognized in INS v. Jong Ha Wang, “[t]hese words are not self-explanatory, and reasonable men could easily differ as to their construction. But the [INA] commits their definition in the first instance to the Attorney General [and the Secretary of Homeland Security] and [their] delegates.”
Therefore, “[t]he Attorney General [and the Secretary of Homeland Security] and [their] delegates have the authority to construe ‘extreme hardship’ narrowly should they deem it wise to do so.” Conversely, “[a] restrictive view of extreme hardship is not mandated either by the Supreme Court or by [the BIA] case law.”
USCIS recognizes that at least some degree of hardship to qualifying relatives exists in most, if not all, cases in which individuals with the requisite relationships are denied admission. Importantly, to be considered “extreme,” the hardship must exceed that which is usual or expected. But extreme hardship need not be unique, nor is the standard as demanding as the statutory “exceptional and extremely unusual hardship” standard that is generally applicable to non-lawful permanent resident cancellation of removal.