Should I Stay or Should I Go

This article originally appeared in Solicitor's Journal on 14 November 2016

Individuals with a special relationship to a US citizen or lawful permanent resident can find the path of immigrating to the USA fraught with peril if they have committed an indiscretion which requires obtaining an ‘inadmissibility waiver’ based on ‘extreme hardship’.

Anyone wishing to enter the US must show that they are not ‘inadmissible’, a concept typically related to a criminal record, misrepresentation to US officials, or prior US immigration violations.

An individual who is inadmissible must obtain a visa with a waiver of the inadmissibility grounds in order to enter the US.

In the case of an immigrant, the critical determination is whether a US ‘qualifying relative’ (QR) will suffer extreme hardship if the visa is not issued (in some cases, the passage of time may offset the need to establish hardship. The QR may be a spouse or parent of a US citizen or green card holder, or in limited instances a US child.

Separation and relocation

In the past, establishing extreme hardship required a two-pronged approach. Hardship had to be shown based on both two-country separation and relocation together to the foreign spouse’s country, i.e. what hardships would result if the couple had to live apart; and what hardships would result if the US spouse had to relocate to the home of the other partner.

While the notion of being forced to live apart seems like a no-brainer as to marital hardship, that alone was considered a ‘common’ hardship, and not extreme. This meant that, for UK-US partners, the US spouse would have to show that having to relocate to the UK would cause extreme hardship. Much as we might like to say things are dreary in Britain, even after Brexit, extreme hardship can be a tall order.

The new guidance says applicants need not show both; they can choose one. The impact of this is significant and shifts the evidentiary standard to a three-part test:

1. Is it more likely than not that the US spouse will separate or relocate if the non-US spouse does not receive a waiver?

2. Is it more likely than not that the US spouse will suffer extreme hardship as a result? and

3. Does the non-US spouse warrant a favourable exercise of discretion?

Put another way, the American resident spouse must answer the threshold question: should I stay (living separately) or should I go (relocate abroad)?

While one may argue both, it makes little sense because to do so would require establishing both. Allowing the applicant to choose enables one to focus the discussion on strongest hardship case.

What is extreme hardship?

Historically, US immigration officials looked at family ties in and out of the US, financial hardships, and health concerns (especially where relocation would be to a country with inadequate medical care). Over time, these categories were broadened to acknowledge the significance of community, economic deprivation, and assessment of all factors in totality.

The new guidance builds on this and articulates two categories of extreme hardship: factors that ‘may’ support a finding of extreme hardship; and ‘particularly significant factors’, which alone would constitute extreme hardship.

The factors that ‘may support’ are drawn from existing case law: family ties and their impact on the US spouse; social and cultural impact; economic impact; health conditions and care; and country conditions.

The ‘particularly significant factors’ are five super hardships: QRs with special status (e.g. refugees), family members with a disability, QRs with military service, US State Department travel warning countries, and ‘substantial displacement of care of applicant’s children’.

What about the children?

The new guidance is child-friendly. Inclusion of the applicant’s children among the ‘super hardships’ acknowledges that children are specifically excluded from the QRs for most inadmissibilities. Non-QR children were always a favourable discretionary factor; now, they add a heightened ingredient for hardship.