March 4, 2013 was an important date for many mixed status couples: it was the date USCIS began accepting provisional hardship waiver applications.
Blackwell Law Group (BLG) does a lot of hardship waiver work. In the last year, BLG has filed 24 provisional hardship waivers and 9 regular hardship waivers. Both types of hardship waivers require proving extreme hardship to a qualifying relative, usually a spouse.
We have had decisions on 15 provisional hardship waivers and 4 regular hardship waivers.
Among the provisional hardship waivers, only 1 case has been denied, giving BLG a 93.3% approval rate. The one case denied was for lack of extreme hardship. The case was an extremely difficult case, so denial was not unexpected.
Among the regular hardship waivers, 1 case was denied. This was only the 2nd regular hardship waiver denied among the 98 regular hardship waivers filed by BLG over the last 7 years, giving BLG a 98.3% approval rate. The denial was very frustrating because it was for something unrelated to whether the spouse suffered extreme hardship. Unfortunately, the client was inadmissible for another reason, one that does not qualify for an exception based on hardship. Neither the client nor I knew about that reason before he left the country.
How do BLG statistics compare with national statistics?
USCIS has made available statistics on provisional hardship waivers filed prior to September 14, 2013. The denial rate was 39%! Among those denials, 41% were denied for lack of extreme hardship and 48% were denied because the applicant had a criminal history that might have made the applicant inadmissible on account of a criminal conviction.
Since September 2013, USCIS has begun approving cases with criminal convictions as long as the convictions did not make the applicant inadmissible. Not all criminal convictions make someone inadmissible. Convictions for disorderly conduct, misdemeanor battery and possession of a firearm are examples of crimes that do not make the offender inadmissible to the U.S. OWIs also should not lead to denial. This means the denial rate for all provisional hardship waiver applications will now be lower, perhaps closer to 20% to 25% rather than 39%.
BLG has succeeded at getting provisional hardship waivers approved on all cases where the applicant had a criminal history. For two clients, there were OWIs and one client there was a conviction for possession of dangerous weapon.
The other matter of great interest is processing times. Two important observations.
First, having a criminal history lengthens the processing time and usually leads to an RFE (request for further evidence). Among BLG cases, a criminal history seems to add about 6 months onto the processing time.
Second, processing times have been lengthening in general. Although USCIS initially stated a goal of 4 months, that is not being achieved. BLG cases filed in December are still pending, even though the applicants have no criminal history.
The lengthening processing time is frustrating for clients. Unfortunately, getting USCIS to move on the cases is difficult. Why? Because USCIS no longer has an expected processing time for the provisional hardship waiver. For just about every other type of application, USCIS publishes an expected processing time. Not for the provisional hardship waiver. What this means is USCIS Customer Service will not take a service request on the case. Normally, a service request nudges USCIS into action and a decision gets made within 4-6 weeks. Without the service request option, clients have no choice but to be patient. Thankfully, the applicant is still here in the U.S., so the family is not suffering the hardships of separation.
The third matter of interest is how many cases get a request for further evidence (RFE). An RFE means USCIS thinks insufficient evidence has been submitted and is giving another chance to submit more evidence. Only 20% of BLG cases get RFEs. We're very proud of that RFE rate. We believe our low RFE rate is because we are very, very thorough in preparing our cases for filing.
If you are looking for an attorney to help you with a hardship waiver, we would love to help you. It doesn't matter where in the country you live. Call us today on 414-964-1900.
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