AILA: Loss of Income Will Not Qualify as ‘Extreme Hardship’

The following is a contribution by outside blogger Gregory Sokoloff. Opinions expressed are solely those of Mr. Sokoloff.

Loss of income resulting from an illegal alien’s deportation cannot be considered “extreme hardship” under a new Department of Homeland Security proposal introducing new procedures for inadmissibility waivers for migrants with unauthorized stays in the U.S. exceeding six months, according to a top immigration law expert.

The proposal, unveiled by the U.S. Citizenship and Immigration Services on Jan. 9, aims to do away with the current three-year and 10-year inadmissibility rules, if the aliens can demonstrate that their “U.S. citizen spouse or parent” would suffer “extreme hardship” if their admission to the United States were denied. Under current law, illegal aliens with “immediate relatives” who are U.S. citizens must first exit the country and be barred from re-entry, respectively, for three or 10 years if their illegal stays exceeded 180 days or 365 days.

The new proposal calls for pre-approving the aliens in the United States. After that, they would have to quickly return to their home countries, go to a U.S. consulate there and receive formal approval for green cards often during that same interview.

The immigration agency did not elaborate what could constitute “extreme hardship” that must be demonstrated along this process. But Crystal L. Williams, executive director of the American Immigration Lawyers Association (AILA) said it cannot be just loss of income. “That doesn’t even rise to the level of hardship, much less extreme hardship,” Ms. Williams said in an interview. “Usually, there is a mental or physical disability involved on the part of a qualifying U.S. citizen of resident.”

She added that the only new element in the proposal consisted in processing of the waiver inside rather than outside of the United States, followed by a quick exit of the petitioner in case of pre-approval. Ms. Williams does not think the plan will facilitate legalization for parents of so-called “anchor babies” primarily because the “extreme hardship” requirement will still have to be met. “The child cannot qualify the parent for the waiver, though,” said the AILA executive director. “The spouse forms the basis of the hardship. The child can’t form the basis of the hardship.”

Ms. Williams acknowledged that she had heard legal experts “speculate” that the proposed changes would give a boost to fake marriages driven exclusively by the interest of legalization, but she dismissed these speculations as exaggerated. “The scrutiny level on waivers is extremely high,” she said. “Part of showing the ‘extreme hardship’ is to show that the relationship is longstanding and highly dependent on one another. And so, I do not see how somebody can get away with trying to get a waiver out of a fake marriage.” People married for only a few months or even a year have little chance of their waiver being approved, the AILA executive director explained.