Chapter 1 - Purpose and Background
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.
Under the Immigration and Nationality Act (INA),  admissibility is generally a requirement for admission to the United States, adjustment of status, and other immigration benefits.  The grounds that make aliens inadmissible to the United States are generally described in section 212 of the INA.
Several statutory provisions authorize the Secretary of Homeland Security  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.” 
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). 
The various statutory waiver provisions specify different categories of qualifying relatives and permit waivers of different inadmissibility grounds. The provisions include:
INA 212(a)(9)(B)(v) – Provides for waiver of the 3- and 10-year inadmissibility bars for unlawful presence.  Qualifying relatives are limited to applicants’ U.S. citizen and LPR spouses and parents. 
INA 212(h)(1)(B)  – 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 alien received immunity from prosecution.  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.  Qualifying relatives are limited to applicants’ U.S. citizen and LPR spouses, parents, sons, and daughters. 
Qualifying relatives are generally limited to applicants’ U.S. citizen and LPR spouses and parents.
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  who is a U.S. citizen, LPR, or otherwise a qualified alien.
The factors discussed in this guidance apply to any waiver application in which the applicant must establish extreme hardship to a qualifying relative.  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.
[^ 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.
[^ 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.
[^ 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.
8 CFR 212.7 - Waiver of certain grounds of inadmissibility
INA 212(a)(9)(B)(v) - Waiver of the 3-year or 10-year unlawful presence bar
INA 212(h)(1)(B) - Waiver for certain criminal and related grounds
INA 212(i) - Admission of immigrant excludable for fraud or willful misrepresentation of material fact
No appendices available at this time.
U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF, 327.05 KB) between the AFM and the Policy Manual.
This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance on determinations of extreme hardship to qualifying relatives as required by certain statutory waiver provisions. This guidance becomes effective December 5, 2016.