Chapter 6 - Extreme Hardship Determinations

A. Evidence

Most instructions to USCIS forms list the types of supporting evidence that applicants may submit with those forms.^[1] The instructions to the relevant waiver forms describe some of the extreme hardship factors that may be considered, along with certain possible types of supporting evidence that may be submitted. USCIS accepts any type of probative evidence, including, but not limited to: 

• Expert opinions; 

• Medical or mental health documentation and evaluations by licensed professionals;

• Official documents, such as birth certificates, marriage certificates, adoption papers, paternity orders, orders of child support, and other court or official documents;

• Photographs;

• Evidence of employment or business ties, such as payroll records or tax statements;

• Bank records and other financial records; 

• Membership records in community organizations, confirmation of volunteer activities, or records related to cultural affiliations;

• Newspaper articles and reports; 

• Country reports from official and private organizations;

• Personal oral testimony;^[2] and

• Affidavits, statements that are not notarized but are signed “under penalty of perjury” as permitted by 28 U.S.C. 1746, or letters from the applicant or any other person. 

​If the applicant indicates that certain relevant evidence is not available, the applicant must provide a reasonable explanation for the unavailability, along with available supporting documentation.^[3] Depending on the country where the applicant is from, is being removed to, or resides, certain evidence may be unavailable. If the applicant alleges that documentary evidence such as a birth certificate is unavailable, the officer may consult the Department of State (DOS) Foreign Affairs Manual,^[4] when appropriate, to verify whether these particular documents are ordinarily unavailable in the relevant country.^[5]

B. Burden of Proof and Standard of Proof

The applicant bears the burden of proving that the qualifying relative would suffer extreme hardship. He or she must establish eligibility for a waiver by a preponderance of the evidence.^[6] If the applicant submits relevant, probative, and credible evidence that leads the USCIS officer to believe that it is “more likely than not” that the assertion the applicant seeks to prove is true, then the applicant has satisfied the preponderance of the evidence standard of proof as to that assertion.^[7]

The mere assertion of extreme hardship alone does not establish a credible claim. Individuals applying for a waiver of inadmissibility should provide sufficient evidence to support and substantiate assertions of extreme hardship to the qualifying relative(s). Each assertion should be accompanied by evidence that substantively supports the claim absent a convincing explanation why the evidence is unavailable and could not reasonably be obtained. The officer should closely examine the evidence to ensure that it supports the applicant’s claim of hardship to the qualifying relative.

To illustrate, an applicant who claims that the qualifying relative has severe, ongoing medical problems will not likely be able to establish the existence of these problems without providing medical records documenting the qualifying relative’s condition. Officers cannot substitute their medical opinion for a medical professional’s opinion; instead the officer must rely on the expertise of reputable medical professionals. 

A credible, detailed statement from a doctor may be more meaningful in establishing a claim than dozens of test results that are difficult for the officer to decipher. However, nothing in such a case changes the requirement that all evidence submitted by applicants should be considered to evaluate the totality of the circumstances.

Similarly, if the applicant claims that the qualifying relative will experience severe financial difficulties, the applicant will not likely be able to establish these difficulties without submitting financial documentation. This could include, but is not limited to, bank account statements, employment and income records, tax records, mortgage statements, leases, and proof of any other financial liabilities or earnings.

If not all of the required initial evidence has been submitted, or the officer determines that the totality of the evidence submitted does not meet the applicable standard of proof, the officer should issue a Request for Evidence (RFE) in accordance with USCIS policy. 

In considering whether the applicant’s evidence is sufficient to meet the applicant’s burden of proof, the officer will consider whether the applicant has complied with applicable requirements to submit information and supporting documentation and whether the evidence is credible, persuasive, and refers to specific facts sufficient to demonstrate that the burden of proof has been satisfied and that applicant warrants a favorable exercise of discretion. In considering whether the applicant’s evidence is credible, the officer will consider the totality of the circumstances and all relevant factors and should take into account the inherent plausibility and internal and external consistency of the evidence and any inaccuracies or falsehoods in the evidence.

If evidence in the record leads the officer to reasonably believe that undocumented assertions of the extreme hardship claim are true, the officer may accept the assertion as sufficient to support the extreme hardship claim. The preponderance of the evidence standard does not require any specific form of evidence; it requires the applicant to demonstrate only that it is more likely than not that the refusal of admission will result in extreme hardship to the qualifying relative(s). Any evidence that satisfies that test will suffice.^[8]

If the officer finds that the applicant has met the above burden of showing extreme hardship to one or more qualifying relatives, the officer should proceed to the discretionary determination.^[9] If the officer ultimately finds that the applicant has not met the above burden, the waiver application must be denied. 

Footnotes

[^ 1] A waiver that requires a showing of extreme hardship to a qualifying relative is currently submitted on an Application for Waiver of Grounds of Inadmissibility (Form I-601) or an Application for Provisional Unlawful Presence Waiver (Form I-601A). 

[^ 2] An officer who interviews an applicant or other witness in person must place the witness under oath or affirmation before beginning the interview and must note in the record that the person was placed under oath along with the date and place of the interview. The officer should also take notes or record the testimony.

[^ 3] See 8 CFR 103.2(b).

[^ 4] See the DOS website.

[^ 5] See also DOS Bureau of Consular Affairs website for more information on birth certificates under reciprocity by country.

[^ 6] See Matter of Chawathe (PDF), 25 I&N Dec. 369 (AAO 2010) (identifying preponderance of the evidence as the standard for immigration benefits generally, in that case naturalization).

[^ 7] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (preponderance of the evidence means more likely than not).

[^ 8] For more detailed guidance on how to interpret the requirement that the refusal of admission “would result in” extreme hardship to the qualifying relative, see Chapter 2, Extreme Hardship Policy, Section B, What is Extreme Hardship [9 USCIS-PM B.2(B)].

[^ 9] See Chapter 7, Discretion [9 USCIS-PM B.7].