Provisional Waivers and Demonstrating Extreme Hardship

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.

Current doctrine
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.

Economic hardship
Not every situation lends itself to economic difficulties, but the availability of receipts, annual income tax reports and other financials makes evidence for economic hardship by far the easiest to compile. Of particular importance is demonstrating the potential for lost income if the alien is forced to relocate or if the citizen spouse or parent is forced to relocate with them. This method has its roots in the personal injury model and seeks to quantify and contrast future earnings with potential for lost income. By far the best way to clearly demonstrate this is through submission of income reports charting potential income for an individual of the petitioner’s age and socioeconomic status. In a recent case, an attorney petitioner was faced with potential relocation to Guatemala should her husband relocate. Due to language barriers, cultural differences and pervasive violence, the petitioner stood to forgo over five million dollars over the course of her lifetime in the event of relocation. It was a clear demonstration of hardship made possible by the economic data she provided.

Demonstrating emotional hardship is by far the most difficult element to establish. While depression, stress, anxiety and feelings of worthlessness are all natural feelings stemming from the sudden loss of a spouse, our clients often find it hard to put into words the pain and mental anguish they stand to suffer. Recently, after an extensive hardship interview with a client, it was only after much time did we discover that the client’s sole remaining kidney will in fact fail within five years, something that was not evident through her medical reports or other evidence we had gathered. As a result, we have found that including a detailed psychological evaluation of the petitioner and their family is a great way to memorialize and document hardship that the client and the attorney may either not be aware of or is simply unable to document.

Child Hardship
Although the November executive action stands to broaden the definition of who may satisfy the definition of “qualifying relative,” under current law, children are not seen as qualifying relatives for whom hardship may be demonstrated. What practitioners and their clients should bear in mind, however, is that the minor status of the child makes their care and therefore any medical or psychological anguish they may suffer the direct responsibility of the petitioner parent. In other words, while the child’s hardship in and of itself is inadmissible, it is permissible to impute that hardship onto the parent as they will be additionally burdened by caring for the child’s own hardship.

Physical Hardship
Perhaps the second easiest element to establish, physical hardship is often comes to light in psychological evaluations but are best demonstrated by a letter from the attending physician. Recently, a client suffering from chronic pain as a result of herniated disc and subsequent surgery following pregnancy provided us with extensive evidence documenting her injury. The two most demonstrative pieces of evidence, though, were letters from her attending surgeon and mental health therapist explaining in plain English what she went through and her prognosis for recovery.

Demonstrating the suffering another stands to experience is never easy, especially when he or she hasn’t experienced it yet. As such, obtaining both evidence documenting the existence of hardship and professional summations tying everything together are key to submitting a successful Provisional Waiver.