Proving “extreme hardship” for provisional waiver

By Atty. Crispin Caday Lozano

          The USCIS provided additional guidance on the definition of “extreme hardship.” To be granted a provisional waiver, applicants must demonstrate that their absence from the United States would cause “extreme hardship” to a spouse or parent who is a U.S. citizen or lawful permanent resident. The statute does not define the term, and federal courts have not specifically defined it through case law. 

USCIS identified the factors that are considered by adjudicators in determining whether the “extreme hardship” standard has been met. Factors that should be considered for further explanation include, but are not limited to: family ties to the United States and the country of removal, conditions in the country of removal, the age of the U.S. citizen or permanent resident spouse or parent, the length of residence in the United States, relevant medical and mental health conditions, financial hardships, and educational hardships.

The Department of Homeland Security issued a memorandum on July 29, 2016, expanding eligibility for a provisional waiver of the 3 and 10 year bar for unlawful presence which takes effect on August 29, 2016.

Q.      What has been expanded?

A.       The provisional waiver of unlawful presence was expanded to cover all individuals who are eligible to apply for green card in the employment and family based preferences.  Originally, only immediate relatives of U.S. citizens are covered by the provisional waiver.  Under the new rule, all individuals are covered for as long as they have an approved immigrant petition that has a current priority date and the applicant can show extreme hardship to his or her U.S. citizen or Lawful Permanent Resident spouse or parents.

Q.      Who benefits from this provisional waiver? 

A.       The following individual may benefit from this provisional waiver rule:

  • Seaman or Crewman (jump ships), who do not have Section 245(i) eligibility;
  • Those who entered the U.S. without inspection (EWI), but do not have Section 245(i) eligibility or a close family member who is on active duty or US veteran;
  • K-1 fiancée visa entrants, but did not marry the US citizen who petitioned them.

Note:    This is not a legal advice.

If you have immigration problems the Law Offices of Crispin C. Lozano can help you find a solution before your problem gets worse which could lead to deportation and family separation. 

Crispin Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers.  He practices immigration law, bankruptcy and personal injury law since June 1999.  His contact phone is 1-877-456-9266, email:

Toll Free 1-877-4LOZANO for free consultation or Schedule an Appointment