AS you may be aware, an alien seeking permanent residency status in the US must be “admissible” to the US. Admissibility means the ability of an alien to receive a visa to enter the US or adjust status while in the US to obtain a permanent resident status under the US relevant laws and regulations. Aliens may be denied a visa or admitted to the US for health-related reasons, criminal grounds, security and related reasons, but there are certain provisions in the law allowing discretionary waivers on specific inadmissibility grounds for those who can demonstrate “extreme hardship” to US citizens or LPR (legal permanent residents) family members.
The inadmissibility grounds allowing waivers for those who can demonstrate “extreme hardship” include three-year and ten-year inadmissibility bars for unlawful presence, crimes involving moral turpitude, multiple criminal convictions, prostitution and commercialized vice, and certain serious criminal offenses for which the foreign national received immunity from prosecution, single offense of simple possession of 30 grams or less of marijuana, and certain types of immigration fraud.
Last 10/7/2015, the USCIS has issued a draft policy guidance on extreme hardship which was issued pursuant to the 11/21/2014 Presidential Memorandum. Since there is no specific definition of “extreme hardship” under the Immigration and Nationality Act (INA) or in court decisions, the policy guidance hopes to provide clarification and prevent confusion relative to this matter.
Based on the draft policy guidance, the following factors will be considered in determining “extreme hardship” in waiver applications: family ties and impact, social and cultural impact, economic impact, health conditions and care, and country conditions. The USCIS will also consider the following special circumstances that strongly suggest extreme hardships: qualifying relative previously granted asylum or refugee status, qualifying relative or related family member’s disability, qualifying relative’s active duty military service, Department of State warnings against travel to or residence in certain countries, and substantial displacement of care of applicant’s children.
The draft policy guidelines also stated the following documents may be submitted to prove extreme hardship: expert opinions; medical or mental health documentation and evaluations by licensed professionals; official documents, such as birth certificates, marriage certificates, or other court documents, photographs; evidence of employment or business ties, membership records in community organizations, confirmation of volunteer activities, or cultural affiliations; newspaper articles and reports; country reports from official and private organizations; personal oral testimony; and affidavits.
Hopefully, the USCIS will release the final version of the policy guideline soon after taking into consideration the comments submitted by all affected stakeholders.
If you are contemplating of filing any immigrant or non-immigration application, it is advisable to seek the counsel of an immigration lawyer to guide you on the intricacies of filing for such a petition.
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Atty. Gwendolyn Malaya-Santos is a member of the State Bar of California and the Integrated Bar of the Philippines. To schedule for a free initial in-person consultation, please call Tel. Nos. (213) 284-5984 or (626) 329-8215. Atty. Santos’ office is located at 3450 Wilshire Blvd., Suite 1200-105, Los Angeles, CA 90010.
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Information contained in this article does not, nor is it intended to, constitutes legal advice for any specific situation and does not create a lawyer-client relationship. It likewise does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
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