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.
On August 29, 2016, the new rule went into effect regarding the I601A Provisional Waiver process. We discussed the important changes here briefly a while back. Even lawyers are taking their time getting a grasp on the new changes, so for the layman, the new regulations can understandably still cause a lot of confusion out there.
Late last week, USCIS published a final rule incorporating proposed changes from July of last year to the I-601A process. Many of proposed changes are now final and will become effective August 29, 2016. Of the many changes, the most significant are that the class of eligible applicants has been opened up to all individuals who are statutorily eligible for the unlawful presence waiver, not just immediate relatives of US Citizens. This means that immigrants in other preference based categories-family and employment-may now potentially apply for the I601A. Secondly, up until now, the provisional waiver was limited to immediate relatives who could demonstrate extreme hardship to a US Citizen spouse or parent. Under the new rule, extreme hardship may now be shown to a US Citizen or Lawful Permanent Resident spouse or parent. Another change worth noting is that USCIS will no longer deny I-601A applications based on a "reason to believe" that the applicant may be inadmissible on other grounds, although, of course, it retains the right to deny cases as a matter of discretion. There are also some important technical changes pertaining to individuals with final orders of removal, exclusion, or deportation. How these changes will play out practically remains to be seen once implementation starts. Nevertheless, given the current state of immigration affairs and dwindling hope of immigration reform, these measures may open up alternative avenues of relief to thousands of immigrants currently in limbo due to the unlawful presence bar.
In addition to releasing draft provisional waiver policy changes for public comment, USCIS has also issued draft guidance relating to extreme hardship and how adjudicators are supposed to be evaluating cases requiring such a showing. These changes, if effective, would be incorporated into the USCIS Policy Manual and purportedly establish a more standardized definition of extreme hardship.
Many people are aware that DAPA and Expanded DACA are currently on hold due to pending litigation. What people may not know is that DAPA and the expansion of DACA are only parts of President Obama's 2014 Executive Action on immigration. The Executive Order is actually comprised of a series of initiatives to reform the immigration system. Not all of the initiatives have been blocked or put on hold. One of the more prominent pieces of the package that received less attention but remains very important to a lot of people-the expansion of the provisional waiver-remains intact. In fact, USCIS just recently released a copy of the proposed rules and is requesting comments.
The Board of Immigration Appeals (BIA) recently issued an important precedential decision in Matter of J-H-J, 26 I & N Dec. 563 (BIA 2015) that affects individuals who may need to file criminal waivers in order to stay in the United States. This is a notable decision because the Board has retreated from its former position and withdrawn from two previous decisions regarding the same issue.
The immigration laws can be especially strict. Under certain circumstances, an individual applying for a green card or immigrant visa may actually be barred or prohibited from permanent residence due to some problem, whether it be a criminal conviction, previous overstay, or misrepresentation in the application process. Fortunately, our system does allow for some of these problems to be forgiven or waived. Most waivers are filed on Form I-601, which is a broad based application that embraces many different types of waiver applications. Among the more waivers frequently applied are the following (understand that the waivers listed here only represent some of the more popular ones but by no means is a list of all the waivers that may be applied for):