A. Overview

In adjudicating a waiver request, the officer must ensure that the applicant meets all of the statutory requirements for the waiver, including the extreme hardship showing. If the applicant is eligible, the officer must then determine whether the applicant warrants a favorable exercise of discretion. In each case, the officer should analyze each part separately.

First, the applicant has the burden of proof to demonstrate by a preponderance of the evidence that he or she satisfies the statutory requirements of the waiver, including extreme hardship. [1] See INA 291 (providing that burden is on applicant for admission to prove he or she is “not inadmissible” and “entitled to the nonimmigrant [or] immigrant . . . status claimed”). See Matter of Mendez-Moralez, 21 I&N Dec. 296, 299 (BIA 1996) (holding that applicant for INA 212(h)(1)(B) waiver has burden of showing that favorable exercise of discretion is warranted, “as is true for other discretionary forms of relief”). See 8 CFR 212.7(e)(7) (provisional INA 212(a)(9)(B)(v) waivers). See INA 240(c)(4)(A) (in removal proceedings, the applicant for relief has the burden of proving that he or she is statutorily eligible and merits a favorable exercise of discretion). The applicant meets the preponderance of the evidence standard if the evidence shows that it is more likely than not that a denial of admission would result in extreme hardship to one or more qualifying relatives. [2] See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).

The finding of extreme hardship permits, but does not require, a favorable exercise of discretion. [3] See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 566 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). See Matter of Ngai, 19 I&N Dec. 245 (BIA 1984). See Matter of Shaughnessy, 12 I&N Dec. 810 (BIA 1968). Once the officer finds extreme hardship, the officer must then determine whether the applicant has shown that he or she merits a favorable exercise of discretion. [4] See Chapter 7, Discretion [9 USCIS-PM B.7].

B. Adjudicative Steps

The officer should complete the following steps when adjudicating a waiver application that requires a showing of extreme hardship to a qualifying relative. [5] In most cases, there will already have been a finding of inadmissibility, either by the consular officer adjudicating a visa application, or a USCIS officer adjudicating a related application, such as an Application to Register Permanent Residence or Adjust Status (Form I-485). A formal finding of inadmissibility is not required in adjudicating an Application for Provisional Presence Waiver (Form I-601A). The officer should identify all inadmissibility grounds and confirm that the ground(s) may be waived. This chart assumes that the inadmissibility grounds have been identified and that a waiver is available.

Adjudication Steps for Waivers Requiring Extreme Hardship to a Qualifying Relative

Adjudication Step

For More Information

Step 1

Confirm that the waiver provision requires a showing of extreme hardship to a qualifying relative.

See Chapter 1, Purpose and Background [9 USCIS-PM B.1]

Step 2

Consistent with the applicable waiver authority, identify each person as to whom the applicant makes a claim of extreme hardship and confirm that the applicant has established the necessary family relationship for the person(s) to be qualifying relatives(s).

See Chapter 4, Qualifying Relative [9 USCIS-PM B.4]

Step 3

Evaluate the present and future hardships that each qualifying relative would experience to determine whether it is more likely than not that an applicant’s refusal of admission would result in extreme hardship to the qualifying relative.

This includes whether any of the particularly significant factors listed below are present. These particularly significant factors generally exceed the common consequences and often weigh heavily in support of a finding of extreme hardship.

See Chapter 5, Extreme Hardship Considerations and Factors [9 USCIS-PM B.5]

See Chapter 6, Extreme Hardship Determinations [9 USCIS-PM B.6]

Step 4

If no single hardship rises to the level of “extreme,” then determine whether it is more likely than not that the hardships to the qualifying relatives in the aggregate rise to the level of extreme hardship.

See Chapter 2, Extreme Hardship Policy [9 USCIS-PM B.2]

See Chapter 5, Extreme Hardship Considerations and Factors [9 USCIS-PM B.5]

See Chapter 6, Extreme Hardship Determinations [9 USCIS-PM B.6]

Step 5

If extreme hardship is not found, deny the application.

If extreme hardship is found, determine whether based on the totality of the circumstances of the individual case, the applicant merits a favorable exercise of discretion.

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

Footnotes


1. [^]

See INA 291 (providing that burden is on applicant for admission to prove he or she is “not inadmissible” and “entitled to the nonimmigrant [or] immigrant . . . status claimed”). See Matter of Mendez-Moralez, 21 I&N Dec. 296, 299 (BIA 1996) (holding that applicant for INA 212(h)(1)(B) waiver has burden of showing that favorable exercise of discretion is warranted, “as is true for other discretionary forms of relief”). See 8 CFR 212.7(e)(7) (provisional INA 212(a)(9)(B)(v) waivers). See INA 240(c)(4)(A) (in removal proceedings, the applicant for relief has the burden of proving that he or she is statutorily eligible and merits a favorable exercise of discretion).

2. [^]

See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).

3. [^]

See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 566 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). See Matter of Ngai, 19 I&N Dec. 245 (BIA 1984). See Matter of Shaughnessy, 12 I&N Dec. 810 (BIA 1968).

4. [^]

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

5. [^]

In most cases, there will already have been a finding of inadmissibility, either by the consular officer adjudicating a visa application, or a USCIS officer adjudicating a related application, such as an Application to Register Permanent Residence or Adjust Status (Form I-485). A formal finding of inadmissibility is not required in adjudicating an Application for Provisional Presence Waiver (Form I-601A). The officer should identify all inadmissibility grounds and confirm that the ground(s) may be waived. This chart assumes that the inadmissibility grounds have been identified and that a waiver is available.