What is “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.


  1. For the month of December 2019, we received two approvals of naturalization applications, three approvals of Adjustment of Status applications, two approvals of Petition to remove condition on residence, one renewal of green card approval and one green card application at the U.S. Embassy.
  2. For the month of November 2019, we received approvals of one naturalization application, one renewal of green card, one Petition to remove condition on residence and one adjustment of status.
  3. For the month of October 2019, we received five naturalization application approvals and two renewal of green card and one DACA approval.
  4. For the month of September 2019, we received approval of two naturalization applications, one adjustment of status and one application to remove condition on residence.
  5. For the month of August, 2019, we received approval from Immigration Court for a waiver of misrepresentation for a client who has committed marriage fraud. We also received approval from USCIS of two naturalization applications and two fiancé visa petition.
  6. For the month of July 2019, we received approvals of three N-400 application for Naturalization, one I-751 Petition to remove condition of residence with interview and two I-90 renewal of green card.
  7. For June 2019, we received approvals of four adjustment of status, six naturalization applications and two certificate of citizenship applications, and one Removal of condition on resident.
  8. On May 6, 2019, we received approvals of three adjustment of status applications and two Naturalization applications.
  9. On April 24, 2019, we received approval from USCIS for three naturalization applications and one adjustment of status.
  10. On March 29, 2019, we received an approval of adjustment of status for a client whose petitioner and primary beneficiary has died under INA 204(l)
  11. On March 28, 2019, we received an approval of renewal of green card for a client who was in the Philippines under medical treatment for one and a half years.
  12. From March 4 to 26, 2019, we received six adjustment of status approvals.
  13. For the month of February, 2019, we received tow approvals of renewal of green card and one approval of removal of condition on residence.
  14. On January 16, 2019, we received an approval of naturalization for a client who received a waiver of misrepresentation in Immigration Court.

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: info@CCLlaw.net

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