While proving extreme hardship is often the most critical part of getting a waiver case approved, it is important to remember that it is not the only part. It is easy to get so focused on proving hardship that one forgets or neglects to address the notion of discretion. In order to demonstrate that one qualifies for a waiver, an applicant must not only prove the requisite hardship to the appropriate qualifying relative, he or she must also make the case that a favorable exercise of discretion is warranted. As the USCIS policy manual lays out, “a finding of extreme hardship permits but never compels a favorable exercise of discretion.” As a result, the adjudication of a waiver actually goes through a two-step process. First, the officer must determine whether hardship exists: if the hardship does not rise to the level required, the inquiry ends. However, if there is hardship, then the officer proceeds to step two, which is determining whether the applicant merits a grant. In making this determination, the officer must weigh both positive and negative factors.
Positive and Negative Factors That May Influence A Decision
Because the officer is accorded a great deal of discretion, there is no established, set criteria of what constitutes a positive or negative factor. Generally speaking, however, some of it comes down to common sense. Obviously, a criminal conviction, even if it is the subject of the waiver, will militate against an approval unless it is adequately addressed and perhaps counterbalanced with evidence of rehabilitation. Similarly, issues that involve fraud or deceit against the government are adverse circumstances that are not so easily overlooked, notwithstanding that hardship exists. The Policy Manual explicitly indicates that a favorable exercise of discretion in connection with an unlawful presence waiver may not be sufficient to warrant a favorable exercise of discretion with respect to crime-or fraud-related grounds of inadmissibility. In other words, applicants may need to show more in terms of discretion for 212h and 212i waivers than unlawful presence or 10 year bar waivers. In any case, no matter which type of waiver is being applied for, applicants would do well not to dismiss this aspect of the case.
In terms of positive factors, an applicant may want to furnish evidence of the following, depending on what is applicable:
•· Good moral character letters or affidavits
•· Proof of volunteer or community service
•· Proof of long residence in the US
•· Proof of taxes
•· Proof of gainful employment
•· Proof of good standing with employer and career prospects
•· Proof of education and educational goals
•· Proof of equities and assets in the US
•· Proof of family relations in the US (ie., other relatives who are not necessarily “qualifying relatives” but nevertheless a part of the applicant’s life and who might be affected)
•· Proof of rehabilitation or reform
These are only some, and certainly not all, types of factors that need to be considered and potentially proven during the course of a waiver application. While harmful facts or circumstances can adversely impact a case, they do not necessarily doom a case. A well thought out and carefully prepared waiver will bravely acknowledge the issues, explain the circumstances behind them, and produce enough positive evidence to overcome the negative.
Our office focuses its practice on waivers. For more information, please contact us to arrange for an evaluation of your case.