Chapter 1 - Purpose and Background
A. Purpose
This part offers guidance concerning the adjudication of applications for those discretionary waivers of inadmissibility that require applicants to establish that refusal of their admission would result in “extreme hardship” to certain U.S. citizen or lawful permanent resident (LPR) family members.
B. Background
Under the Immigration and Nationality Act (INA),[1] admissibility is generally a requirement for admission to the United States, adjustment of status, and other immigration benefits.[2] The grounds that make noncitizens inadmissible to the United States are generally described in section 212 of the INA.
Several statutory provisions authorize the Secretary of Homeland Security[3] to grant discretionary waivers of particular grounds of inadmissibility for those who demonstrate that a denial of admission would result in “extreme hardship” to specified U.S. citizen or LPR family members. These specified family members are known as “qualifying relatives.”[4]
Each of these statutory provisions conditions a waiver on both a finding of extreme hardship to one or more qualifying relatives and the favorable exercise of discretion. These waiver applications are adjudicated by USCIS (and in some cases by the Department of Justice’s Executive Office for Immigration Review).[5]
The various statutory waiver provisions specify different categories of qualifying relatives and permit waivers of different inadmissibility grounds. The provisions include:
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INA 212(a)(9)(B)(v) – Provides for waiver of the 3- and 10-year inadmissibility bars for unlawful presence.[6] Qualifying relatives are limited to applicants’ U.S. citizen and LPR spouses and parents.[7]
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INA 212(h)(1)(B)[8] – Provides for waiver of inadmissibility based on crimes involving moral turpitude, multiple criminal convictions, prostitution and commercialized vice, and certain serious criminal offenses for which the noncitizen received immunity from prosecution.[9] Also provides a waiver of inadmissibility for a controlled substance violation insofar as the violation relates to a single offense of simple possession of 30 grams or less of marijuana.[10] Qualifying relatives are limited to applicants’ U.S. citizen and LPR spouses, parents, sons, and daughters.[11]
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INA 212(i)(1) – Provides for waiver of inadmissibility for certain types of immigration fraud or willful misrepresentations of material fact.[12] For purposes of this waiver:
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Qualifying relatives are generally limited to applicants’ U.S. citizen and LPR spouses and parents.
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But if the applicant is a Violence Against Women Act (VAWA) self-petitioner, USCIS also must consider extreme hardship to the applicant himself or herself, or to a parent or child[13] who is a U.S. citizen, LPR, or otherwise a qualified noncitizen.
The factors discussed in this guidance apply to any waiver application in which the applicant must establish extreme hardship to a qualifying relative.[14] Because the classes of individuals who may serve as qualifying relatives varies among the different waiver provisions, officers should carefully determine which individuals can serve as qualifying relatives under the relevant extreme hardship analysis.
Footnotes
[^ 1] See Immigration and Nationality Act, Pub. L. 82-414 , 66 Stat. 163 (June 27, 1952), as amended.
[^ 2] See INA 212(a) and INA 245(a).
[^ 3] See 6 U.S.C. 271(b). See Delegation No. 0150.1, “Delegation to the Bureau of Citizenship and Immigration Services” II, Z (June 5, 2003).
[^ 4] The classes of individuals who may serve as “qualifying relatives” depends on the specific text of the waiver provision involved. A U.S. citizen or LPR spouse or parent is a qualifying relative for most extreme hardship waivers. For certain other extreme hardship waivers, a U.S. citizen or LPR child, as well as an adult son or daughter, can be the qualifying relative. In the case of a K visa applicant, a U.S. citizen fiancé(e) is considered a U.S. citizen “spouse” qualifying relative. See 8 CFR 212.7(a) and 22 CFR 41.81(d) (K nonimmigrants). Finally, under some provisions, discretionary relief may be available upon a showing of extreme hardship to the applicants themselves. These include waivers of inadmissibility under INA 212(i)(1) (waiver of fraud-related inadmissibility for Violence Against Women Act (VAWA) self-petitioners), waivers of requirements for removing conditions on LPR status under INA 216(c)(4)(A), cancellation of removal under INA 240A(b)(2)(A)(v) adjudicated by the Executive Office for Immigration Review, and suspension of removal and cancellation of removal under Section 203 of Nicaraguan Adjustment and Central America Relief Act (NACARA), Pub. L. 105-100, 111 Stat. 2160, 2196 (November 19, 1997). See 8 CFR 240.64(c) and 8 CFR 1240.64(c). This guidance addresses USCIS’ adjudication of waiver applications that require a showing of extreme hardship to specified family members, not applications based on extreme hardship to applicants themselves.
[^ 5] See 6 U.S.C. 271(b). See Delegation No. 0150.1, “Delegation to the Bureau of Citizenship and Immigration Services” II, Z (June 5, 2003).
[^ 6] See INA 212(a)(9)(B)(i).
[^ 7] A U.S. citizen fiancé(e) is a qualifying relative in the case of a K nonimmigrant applicant. See 8 CFR 212.7(a) and 22 CFR 41.81(d) (K nonimmigrants).
[^ 8] Other provisions of INA 212(h) authorize waivers of certain grounds of inadmissibility without an extreme hardship determination. See INA 212(h), INA 212(h)(1)(A), and INA 212(h)(1)(C).
[^ 9] See INA 212(a)(2)(A)(i), INA 212(a)(2)(B), INA 212(a)(2)(D), and INA 212(a)(2)(E).
[^ 10] See INA 212(a)(2)(A)(ii).
[^ 11] The son or daughter must be related to the applicant in one of the ways specified in INA 101(b)(1), but he or she does not need to be a “child” (unmarried and under 21 years of age). Because the term “son or daughter” is not restricted with respect to age or marital status, it includes children as defined in INA 101(b)(1) as well as adult or married sons and daughters.
[^ 12] See INA 212(a)(6)(C)(i).
[^ 13] The term “child” is limited to individuals who are unmarried, under 21 years of age, and related to the applicant in one of the ways specified in INA 101(b)(1).
[^ 14] Certain types of waivers utilize standards of hardship other than “extreme hardship.” For example, the “exceptional hardship” waiver that applies to the foreign residence requirement for certain exchange visitors under INA 212(e) is a less demanding standard than “extreme hardship.” By contrast, the “exceptional and extremely unusual hardship” standard for non-LPR cancellation of removal is more stringent that the extreme hardship standard under INA 240A(b). See Matter of Monreal-Aguinaga (PDF), 23 I&N Dec. 56 (BIA 2001). This guidance specifically applies only to “extreme hardship” determinations.