ESTABLISHING EXTREME HARDSHIP
There are several forms of relief and immigration benefits that require a noncitizen to establish extreme hardship or variations of extreme hardship (such as exceptional and extremely unusual hardship). Most commonly I-601A and I-601 visa waivers require a showing of extreme hardship and cancellation of removal for non-permanent residents requires a showing of extreme and exceptionally unusual hardship. This is an overview of some of the ways in which one can go about establishing extreme hardship.
A. Totality of the Circumstances
The officer must make extreme hardship determinations based on the factors, arguments, and evidence submitted. Therefore, the officer should consider any submission from the applicant bearing on the extreme hardship determination. The officer may also consider factors, arguments, and evidence relevant to the extreme hardship determination that the applicant has not specifically presented, such as those addressed in Department of State (DOS) information on country conditions or other U.S. Government determinations regarding country conditions, including a country’s designation for Temporary Protected Status (TPS). Officers must base their decisions on the totality of the evidence and circumstances presented.
B. Common Consequences
The common consequences of denying admission, in and of themselves, do not warrant a finding of extreme hardship. The Board of Immigration Appeals (BIA) has held that the common consequences of denying admission include, but are not limited to, the following:
- Family separation;
- Economic detriment;
- Difficulties of readjusting to life in the new country;
- The quality and availability of educational opportunities abroad;
- Inferior quality of medical services and facilities; and
- Ability to pursue a chosen employment abroad;
- While extreme hardship must involve more than the common consequences of denying admission, the extreme hardship standard is not as high as the significantly more burdensome “exceptional and extremely unusual” hardship standard that that applies to other forms of immigration adjudications, such as cancellation of removal.
C. Factors Must Be Considered Cumulatively
The officer must consider all factors and consequences in their totality and cumulatively when assessing whether a qualifying relative will experience extreme hardship either in the United States or abroad. In some cases, common consequences that on their own do not constitute extreme hardship may result in extreme hardship when assessed cumulatively with other factors.
For example, if a qualifying relative has a medical condition that alone does not rise to the level of extreme hardship, the combination of that hardship and the common consequences of inferior medical services, economic detriment, or readjusting to life in another country may cumulatively cause extreme emotional or financial hardship for the qualifying relative when considering the totality of the circumstances.
Ordinarily, for example, the fact that medical services are less comprehensive in another country is a common consequence of denying admission; but the inferior quality of medical services, considered along with the individual’s specific medical conditions, may create sufficient difficulties as to rise to the level of extreme hardship in combination with all the other consequences.
The officer must weigh all factors individually and cumulatively, as follows:
First, the officer must consider whether any factor set forth individually rises to the level of extreme hardship under the totality of the circumstances.
Second, if any factor alone does not rise to the level of extreme hardship, the officer must consider all factors together to determine whether they cumulatively rise to the level of extreme hardship. This includes hardships to multiple qualifying relatives.
When considering the factors, whether individually or cumulatively, all factors, including negative factors, must be evaluated in the totality of the circumstances.
D. Examples of Factors that May Support a Finding of Extreme Hardship
The chart below lists factors that an applicant might present and that would be relevant to determining whether an applicant has demonstrated extreme hardship to a qualifying relative. This list is not exhaustive; circumstances that are not on this list may also be relevant to finding extreme hardship.
The presence of one or more of the factors below in a particular case does not mean that extreme hardship would necessarily result from a denial of admission. But they are factors that may be encountered and should be considered in their totality and cumulatively in individual cases. All hardship factors presented by the applicant should be considered in the totality of the circumstances in making the extreme hardship determination.
Some of the factors listed below apply when the qualifying relative would remain in the United States without the applicant. Other factors apply when the qualifying relative would relocate abroad. Some of the factors might apply under either circumstance.
Factors and Considerations for Extreme Hardship
Family Ties and Impact
Qualifying relative’s ties to family members living in the United States, including age, status, and length of residence of any children.
Responsibility for the care of any family members in the United States, particularly children, elderly adults, and disabled adults.
- The qualifying relative’s ties, including family ties, to the country of relocation, if any.
- Nature of relationship between the applicant and the qualifying relative, including any facts about the particular relationship that would either aggravate or lessen the hardship resulting from separation.
- Qualifying relative’s age.
- Length of qualifying relative’s residence in the United States.
- Length of qualifying relative’s prior residence in the country of relocation, if any.
- Prior or current military service of qualifying relative.
Impact on the cognitive, social, or emotional well-being of a qualifying relative who is left to replace the applicant as caregiver for someone else, or impact on the qualifying relative (for example, child or parent) for whom such care is required.
Social and Cultural Impact
Loss of access to the U.S. courts and the criminal justice system, including the loss of opportunity to request or provide testimony in criminal investigations or prosecutions; to participate in proceedings to enforce labor, employment, or civil rights laws; to participate in family law proceedings, victim’s compensation proceedings, or other civil proceedings; or to obtain court orders regarding protection, child support, maintenance, child custody, or visitation.
Fear of persecution or societal discrimination.
Prior grant of U nonimmigrant status.
Existence of laws and social practices in the country of relocation that would punish the qualifying relative because he or she has been in the United States or is perceived to have Western values.
Access or lack of access to social institutions and structures (official and unofficial) for support, guidance, or protection.
Social ostracism or stigma based on characteristics such as gender, gender identity, sexual orientation, religion, race, national origin, ethnicity, citizenship, age, political opinion, marital status, or disability.
Qualifying relative’s community ties in the United States and in the country of relocation.
Extent to which the qualifying relative has integrated into U.S. culture, including language, skills, and acculturation.
Extent to which the qualifying relative would have difficulty integrating into the country of relocation, including understanding and adopting social norms and established customs, including gender roles and ethical or moral codes.
Difficulty and expense of travel/communication to maintain ties between qualifying relative and applicant, if the qualifying relative does not relocate.
Qualifying relative’s present inability to communicate in the language of the country of relocation, as well as the time and difficulty that learning that language would entail.
Availability and quality of educational opportunities for qualifying relative (and children, if any) in the country of relocation.
Availability and quality of job training, including technical or vocational opportunities, for qualifying relative (and children, if any) in the country of relocation.
Economic impact of applicant’s departure on the qualifying relative, including the applicant’s or qualifying relative’s ability to obtain employment in the country of relocation.
- Economic impact resulting from the sale of a home, business, or other asset.
- Economic impact resulting from the termination of a professional practice.
- Decline in the standard of living, including due to significant unemployment, underemployment, or other lack of economic opportunity in the country of relocation.
- Ability to recoup losses, or repay student loan debt.
- Cost of extraordinary needs, such as special education or training for children.
- Cost of care for family members, including children and elderly, sick, or disabled parents.
Health Conditions and Care
Health conditions and the availability and quality of any required medical treatment in the country to which the applicant would be returned, including length and cost of treatment.
Psychological impact on the qualifying relative due to either separation from the applicant or departure from the United States, including separation from other family members living in the United States.
Psychological impact on the qualifying relative due to the suffering of the applicant.
Prior trauma suffered by the qualifying relative that may aggravate the psychological impact of separation or relocation, including trauma evidenced by prior grants of asylum, refugee status, or other forms of humanitarian protection.
Conditions in the country of relocation, including civil unrest or generalized levels of violence, current U.S. military operations in the country, active U.S. economic sanctions against the country, ability of country to address significant crime, environmental catastrophes like flooding or earthquakes, and other socio-economic or political conditions that jeopardize safe repatriation or lead to reasonable fear of physical harm.
Temporary Protected Status (TPS) designation.
Danger Pay for U.S. government workers stationed in the country of nationality.
Withdrawal of Peace Corps from the country of nationality for security reasons.
DOS Travel Warnings or Alerts, whether or not they constitute a particularly significant factor, as set forth in Part E below.
E. Particularly Significant Factors
The preceding list identifies factors that may bear on whether a denial of admission would result in extreme hardship. Below are factors that USCIS has determined often weigh heavily in support of finding extreme hardship. An applicant who seeks to demonstrate the presence of one of the enumerated circumstances must submit sufficient reliable evidence to support the existence of such circumstance(s) and show that the circumstance will cause extreme hardship to the qualifying relative. The mere presence of an enumerated circumstance does not create a presumption of extreme hardship. The ultimate determination of extreme hardship must be based on the totality of the circumstances present in the individual case.
It is important to emphasize that the enumerated circumstances listed below are specifically highlighted only because they are often likely to support findings of extreme hardship. Other hardships not enumerated may also rise to the level of extreme, even if they vary significantly than those listed below.
Eligibility for an immigration benefit ordinarily must exist at the time of filing and at the time of adjudication. However, considering the nature of the particularly significant factors described below, the presence of one or more of these circumstances at the time of adjudication should be considered by a USCIS officer even if the circumstance arose after the filing of the waiver request.
1. Qualifying Relative Previously Granted Iraqi or Afghan Special Immigrant Status, T Nonimmigrant Status, or Asylum or Refugee Status
If a qualifying relative was previously granted Iraqi or Afghan special immigrant status, T nonimmigrant status, asylum status, or refugee status in the United States from the country of relocation and the qualifying relative’s status has not been revoked, those factors would often weigh heavily in support of finding extreme hardship. The existence of this circumstance normally results in hardship greater than the common consequences denying admission, whether in cases involving relocation or separation.
The prior decision to grant the qualifying relative status as an Iraqi or Afghan special immigrant, T nonimmigrant, refugee, or asylee indicates the significantly heightened risk that relocation to the country from which he or she received protection could result in retaliatory violence, persecution or other danger to the qualifying relative. This prior assessment by USCIS would often weigh heavily in support of finding extreme hardship in a case involving relocation.
The same is also true in cases involving separation. The prior assessment by USCIS with respect to the qualifying relative indicates that he or she would likely face increased difficulty returning to that country to visit the applicant, thus generally resulting in hardship that is greater than that normally present in cases involving family separation. The applicant might also show that, due to their relationship, the applicant may experience persecution or other dangers similar to those that gave rise to the qualifying relative’s underlying status. The qualifying relative in such a case may suffer additional psychological trauma due to the potential for harm to the applicant in the country of relocation.
2. Qualifying Relative or Related Family Member’s
Cases involving disabled individuals often involve hardships that rise above the common consequences. If a government agency has made a formal disability determination with regard to the qualifying relative, or with regard to a family member of the qualifying relative who is dependent on the qualifying relative for care, that factor would often weigh heavily in support of finding that either relocation or separation would result in extreme hardship under the totality of the circumstances.
In cases involving either (1) relocation of the qualifying relative with a disability or (2) relocation of both the qualifying relative and the relevant family member with a disability, the applicant will need to show that the services available to the disabled individual in the country of relocation are unavailable or significantly inferior to those available to him or her in the United States. In such cases, the disability determination would often weigh heavily in support of a finding of extreme hardship.
In cases involving separation, the applicant will need to show that the qualifying relative with a disability, or the relevant family member with a disability, generally requires the applicant’s assistance for care due to the disability. Where replacement care is not realistically available and obtainable, the disability determination would often weigh heavily in support of a finding of extreme hardship.
Absent a formal disability determination, an applicant may provide other evidence that a qualifying relative or relevant individual suffers from a medical condition, whether mental or physical, that makes either travel to, or residence in, the country of relocation detrimental to the qualifying relative or family member’s health or safety. Similarly, an applicant may provide other evidence that the condition of the qualifying relative requires the applicant’s assistance for care.
3. Qualifying Relative’s Military Service
Military service by a qualifying relative often results in hardships from denial of the applicant’s admission that rise above the common consequences of denying admission. If a qualifying relative is an Active Duty member of any branch of the U.S. armed forces, or is an individual in the Selected Reserve of the Ready Reserve, denial of an applicant’s admission often causes psychological and emotional harm that significantly exacerbates the stresses, anxieties and other hardships inherent in military service by a qualifying relative.
This may result in an impairment of the qualifying relative’s ability to serve the U.S. military, or to be quickly called into active duty in the case of reservists, which also affects military preparedness. This is often the case even if the qualifying relative’s military service already separates, or will separate, him or her from the applicant. In such circumstances, the applicant’s removal abroad may magnify the stress of military service to a level that would constitute extreme hardship.
4. DOS Travel Warnings
DOS issues travel warnings to notify travelers of the risks of traveling to certain foreign countries. Reasons for issuing travel warnings include, but are not limited to, unstable government, civil war, ongoing intense crime or violence, or frequent terrorist attacks. A travel warning remains in place until changes in circumstances sufficiently mitigate the need for such a warning. With respect to some travel warnings, DOS advises of travel risks to a specific region or regions of the country at issue.
In some situations, DOS issues travel warnings that do more than notify travelers of the risks of traveling to a particular country or region(s) within a country. Rather, DOS affirmatively recommends against travel or affirmatively recommends that U.S. citizens depart. DOS may make such travel warnings country-wide. Such travel warnings may contain language in which:
DOS urges avoiding all travel to the country or region because of safety and security concerns;
DOS warns against all but essential travel to the country or region;
DOS advises deferring all non-essential travel to the country or region; and/or
DOS advises U.S. citizens currently in the country or region to depart.
In cases where a qualifying relative would relocate to a country or region that is the subject of such DOS recommendations against travel, the travel warning would often weigh heavily in support of a finding of extreme hardship. In assessing the dangers in the country of relocation, USCIS officers should give weight to DOS travel warnings, taking into account the nature and severity of such warnings.
Generally, the fact that the country of relocation is currently subject to a DOS country-wide travel warning against travel may indicate that a qualifying relative would face significantly increased danger if he or she were to relocate to that country with the applicant. This significantly increased danger would often support a finding of extreme hardship.
If the relevant travel warning covers only a part or region of the country of relocation, the USCIS officer must determine whether the qualifying relative would relocate to the part or region that is subject to the warning. If the officer finds that this part or region is one to which the qualifying relative plans to return despite the increased danger (for example, because of family relationships or employment opportunities), that may indicate that the qualifying relative would face significantly increased danger if he or she were to relocate to that part or region. This significantly increased danger would often support a finding of extreme hardship.
Alternatively, if the officer finds that the qualifying relative would relocate to a part of the country that is not subject to the travel warning (because of the danger in the part or region covered by the travel warning or for any other reason), that indicates that the qualifying relative would generally not face significantly increased danger upon relocation.
If the officer finds that the qualifying relative would remain in the United States while the applicant returns to a country or region that is subject to a DOS warning against travel, the officer should evaluate whether the separation may result in extreme hardship to the qualifying relative. In such cases, the officer should consider the hardship to the qualifying relative resulting from the increased danger to the applicant in the relevant country or region.
5. Substantial Displacement of Care of Applicant’s
USCIS recognizes the importance of family unity and the ability of parents and other caregivers to provide for the well-being of children. Depending on the particular facts of a case, either the continuation of one’s existing caregiving duties under new and difficult circumstances or the need to assume someone else’s caregiving duties can be sufficiently burdensome to rise to the level of extreme hardship. The children do not need to be U.S. citizens or lawful permanent residents (LPRs) in such cases.
In cases involving the separation of spouses in which the qualifying relative is the primary caretaker and the applicant is the primary income earner, the income earner’s refusal of admission often causes economic loss to the caregiver. Although economic loss alone is generally a common consequence of a denial of admission, depending on the particular circumstances the economic loss associated with the denial of admission may create burdens on the caregiver that are severe enough to rise to the level of extreme hardship. That can occur, for example, when the qualifying relative must take on the additional burdens of primary income earner while remaining the primary caregiver. That dual responsibility may significantly disrupt the qualifying relative’s ability to meet his or her own basic subsistence needs or those of the person(s) for whom the care is being provided. In such cases, the dual burden would often support a finding of extreme hardship. In addition, the qualifying relative may suffer significant emotional and psychological impacts from being the sole caregiver of the child(ren) that exceed the common consequences of being left as a sole parent.
In cases involving the separation of spouses in which the qualifying relative is the primary income earner and the applicant is the primary caretaker, the caretaker’s refusal of admission can result in a substantial shift of caregiving responsibility from the applicant to the qualifying relative. Such a shift may significantly affect the qualifying relative’s ability to earn income for the family; disrupt family, social, and cultural ties; or hinder the child(ren)’s psychological, cognitive, or emotional development.
The shift may also frustrate or complicate the qualifying relative’s efforts to provide a healthy, stable, and caring environment for the child(ren). Such additional emotional, psychological and/or economic stress for the qualifying relative could exceed the levels of hardship that ordinarily result from family separation, and rise to the level of extreme hardship.
Under either scenario discussed above, the significant shifting of caregiving or income-earning responsibilities would often weigh heavily in support a finding of extreme hardship to the qualifying relative, provided the applicant shows:
The existence of a bona fide relationship between the applicant and the child(ren);
The existence of a bona fide relationship between the qualifying relative and the child(ren); and
The substantial shifting of caregiving or income-earning responsibilities under circumstances in which the ability to adequately care for the children would be significantly compromised.
To prove a bona fide relationship to the child(ren), the applicant and qualifying relative should have emotional and/or financial ties or a genuine concern and interest for the child(ren)’s support, instruction, and general welfare. Evidence that can establish such a relationship includes (but is not limited to):
- Income tax returns;
- Medical or insurance records;
- School records;
- Correspondence between the parties; or
- Affidavits of friends, neighbors, school officials, or other associates knowledgeable about the relationship.
- To prove the qualifying relative would take on the additional caregiving or income-earning responsibilities, the applicant needs to show that the qualifying relative either (1) is a parent of the child(ren) in question or (2) otherwise has the bona fide intent to assume those responsibilities. Evidence of such an intent could include (but is not limited to):
- Legal custody or guardianship of the child;
Other legal obligation to take over parental responsibilities;
Affidavit signed by qualifying relative to take over parental or other caregiving responsibilities; or
Affidavits of friends, neighbors, school officials, or other associates knowledgeable about the qualifying relative’s relationship with the children or intentions to assume parental or other caregiving responsibilities.
[^ 1] See Matter of Cervantes-Gonzalez (PDF), 22 I&N Dec. 560 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). See Matter of L-O-G (PDF)-, 21 I&N Dec. 413 (BIA 1996). See Matter of Anderson (PDF), 16 I&N Dec. 596 (BIA 1978).
[^ 2] See DOS Country Reports on Human Rights Practices and DOS Travel Warnings.
[^ 3] See Matter of Ngai (PDF), 19 I&N Dec. 245 (BIA 1984) (“Common results of the bar, such as separation, financial difficulties, etc. in themselves are insufficient to warrant approval of an application unless combined with much more extreme impacts”).
[^ 4] See INA 240A(b)(1)(D).
[^ 5] See Matter of O-J-O- (PDF), 21 I&N Dec. 381, 383 (BIA 1996).
[^ 6] The characteristics for which a person is ostracized or stigmatized may be actual or perceived (that is, the person may actually have that characteristic, or someone may perceive the person as having that characteristic).
[^ 7] The officer should consider any submitted government or nongovernmental reports on country conditions specified in the hardship claim. In the absence of any evidence submitted on country conditions, the officer may refer to DOS information on country conditions, such as DOS Country Reports on Human Rights Practices and the most recent DOS Travel Warnings, to corroborate the claim.
[^ 8] For more information on TPS, see the USCIS website.
[^ 9] See 5 U.S.C. 5928. See Department of State Danger Pay Regulations, available at Standardized Regulations (DSSR).
[^ 10] See Section D, Examples of Factors that Might Support Finding of Extreme Hardship [9 USCIS-PM B.5(D)].
[^ 11] See 8 CFR 103.2(b)(1).
[^ 12] See, for example, Division F, Title VI of the Omnibus Appropriations Act of 2009, Pub. L. 111-8 (PDF), 123 Stat. 524, 807 (March 11, 2009). See Section 1244 of the National Defense Authorization Act for Fiscal Year 2008, Pub. L. 110-181 (PDF), 122 Stat. 3, 396 (January 28, 2008). See Section 1059 of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163 (PDF), 119 Stat. 3136, 3443 (January 6, 2006), as amended by Pub. L. 110-36 (PDF), 121 Stat. 227 (June 15, 2007).
[^ 13] Although it is unlikely that a qualifying relative would have been granted withholding of removal under INA 241(b)(3) or withholding or deferral of removal under the Convention Against Torture (CAT), if a qualifying relative was previously granted such a form of relief, this would often weigh heavily in support of a finding of extreme hardship to that qualifying relative, similar to situations involving qualifying relatives described in this particularly significant factor.
[^ 14] Federal agency programs focusing on individuals with disabilities generally rely on definitions found in their authorizing legislation. These definitions may be unique to an agency’s program.
[^ 15] See 10 U.S.C. 101. The term “armed forces” means the Army, Navy, Air Force, Marine Corps, and Coast Guard.
[^ 16] See DOS Travel Warnings.
[^ 17] The term “child” includes those related to the applicant by birth, adoption, marriage, legal custody, or guardianship.
[^ 18] In this scenario, the children are assumed to be under age 21. See INA 101(b)(1) and INA 101(c)(1).
[^ 19] These scenarios are not exhaustive. For example, even when a qualifying relative is not the primary caretaker or breadwinner. Nonetheless, the loss of the applicant’s contribution to caretaking or support may have consequences that rise to the level of extreme hardship to the qualifying relative based on the totality of the circumstances.
[^ 20] USCIS applies a similar principle when assessing whether there is a bona fide relationship between a father and his child born out of wedlock. See INA 101(b)(1)(D) and 8 CFR 204.2(d)(2)(iii).