On July 22, 2016 the Obama administration expanded the I-601A provisional waivers for individuals considered inadmissible under INA 212(a)(9)(B)(i)(I),(II). This has allowed applicants to submit waiver applications prior to leaving the country. Since the 2016 presidential election immigration issues have come to the forefront of political debates and more I-601A applications are being filed. An I-601A application allows unlawful presence in the united states as long as the removal of the applicant poses extreme hardship to a qualifying relative who holds legal standing as a citizen. Extreme hardship is a multifaceted term and includes impact on family ties, social and cultural factors, economic factors, health conditions, special needs for family members, and existing conditions in the country of relocation. This article will be focused solely on determining economic impact to the qualifying relative associated with the denial of the I-601A provisional waiver.
The United States Citizenship and Immigration Services (henceforth, USCIS) considers the following factors to play a significant role in determining economic hardship.
Economic impact of applicant’s departure on the qualifying relative, including the applicant’s or qualifying relative’s ability to obtain employment in the country of relocation.
Economic impact resulting from the sale of a home, business, or other asset.
Economic impact resulting from the termination of a professional practice.
Decline in the standard of living, including due to significant unemployment, underemployment, or other lack of economic opportunity in the country of relocation.
Ability to recoup losses, or repay student loan debt.
Cost of extraordinary needs, such as special education or training for children.
Cost of care for family members, including children and elderly, sick, or disabled parents.
Considering these factors we prepare reports in which we address each one in our analysis of economic detriment to the qualifying relative.
In calculating the economic impact on the qualifying relative one must consider the impact of the departure of the applicant or the scenario in which the entire family relocates. In the first, scenario where the applicant is denied admission and the the qualifying relative remains in the United States the detriment to the qualifying relative will derive from the loss support from the applicant’s earnings and household services. In the second scenario in which the qualifying relative relocates to the country of the applicant’s citizenship the fundamental losses stem from the decline in the standard of living, including significant unemployment, underemployment, or other lack of economic opportunity in the country of relocation. In both cases factors such as the sale of property and assets, the termination of professional practices, ability to recoup losses or repay loans, and extraordinary cost associated with the care of elderly, sick, or family members with special needs.
An economist may opine and analyze the impact on the qualifying relative and produce reports to be submitted with the I-601A provisional waiver to add value and context to the damages suffered by the qualifying relative. In most cases we calculated the loss of support from earnings and household services to the dates of work-life and healthy life expectancy. In other situations we calculated the loss in earnings if the qualifying relative relocates, by calculating the difference in expected earning between countries. Other factors may then be added into the analysis as needed, as many of the losses are specific to each case. After considering these factors we then compare the expected lifetime loss to the annual income of the qualifying relative to give perspective on the size of the loss relative to the qualifying relatives standard of living. We then compare how the loss would impact the income of the household to relative expenses. This allows us to opine on whether the removal of the applicant would force the qualifying relative into a situation where he does not have the means to cover his expenses.
In order to determine whether or not the loss is actually economic hardship we rely on the definition provided by the NCIS, and propose and unbiased metric. We focus primarily on the fact that the inability to recoup losses or repay student debt is considered to be economic hardship by the NCIS. We thus propose a metric relying on the level of loss to the qualifying relative and the ability to earn above their expected lifetime earnings given an investment vehicle that provides return. In order to produce an unbiased measure one must first consider the relative magnitude of that loss as it compares to the income of the qualifying relative. For example, if the loss of the applicant’s departure is low relative to the qualifying relatives income over healthy life expectancy it signifies that the qualifying relative may be able to achieve the same living standard without the applicant by investing savings in a financial asset. This would not qualify as hardship. On the other hand if the loss is relatively high compared to the qualifying relative’s income then the qualifying relative may not be able to recoup losses. Thus financial hardship occurs when:
PV of Future Losses/Earnings based on Savings to HLE > 1
Since there are varying scenarios (relocation vs. deportation) and relationships (i.e. husband and wife, father and son , etc..) the exact investment vehicle and rate of return is subject to the economists analyses of viable investment options. In general, we use the 30 year treasury bond rate. This assumes that the returns on savings are guaranteed. Also note that there exist a trade off between assumed level of saving, rate of return, and the hardship metric. In that, higher savings and rates of return will correspond to a lower value of the proposed hardship metric.
Below are cases that can help attorneys determine when cases present factors that rise to the level of extreme hardship. An extreme hardship determination will always depend on the facts of each individual case. Below are two cases that exemplify the two scenarios mentioned above: departure and relocation.
Scenario 1: A couple married on March 13, 2009 and had two children. The wife does not have legal standing as a U.S. citizen and decided to file an I-601A to avoid deportation to El Salvador. We reviewed documents including proof of income, expenses, and relevant information provided to us by the applicant and qualifying relative. In this case the damages were calculated based on the loss of support from income and household services. The loss of support from income was calculated by projecting the current level of income until work-life expectancy and offsetting it by earnings in the country of relocation. Of course, the loss of support used is a fraction of the applicant’s income adjusted for self consumption based on the U.S Department of Labor’s Equivalence Scales and Consumer Expenditure Surveys.
Scenario 2: A father and his adult son cohabitate. The father does not have legal standing as a US citizen. They co-operate a family business and a few investments properties. However, the businesses are listed solely in the father’s name. Due to cultural and sociological factors the son would be forced to relocate in order to take care of his aging father. In this case the loss the qualifying relative experiences is determined on the loss of income realized in relocation.
A professional may opine on whether the facts favor a finding of extreme hardship or not. The present and nominal value of this extreme economic hardship can be compared with current levels of income and relative expenses to determine the extent of economic hardship.
In the first example, the qualifying relative’s level of annual income was $46,651 which reflects a full-time job and supplementary work that summed up to 60-80 hours a week and a $1,749,958 loss over his lifetime including $531,300 for loss of support from earnings and $1,250,194 for loss of household services and $50,511 for expected travel expenses and offset it by $82,046. Given the losses, compared to her current income, the economic hardship can be characterized as roughly 38 times his annual income. In such a case the facts favor a finding of extreme hardship because recouping the loss would be impossible over the qualifying relatives lifetime, given her expenses and current standard of living.
Given the rising demand for I-601A waivers and the lack of economic analysis devoted towards them exists, it may very well be a valuable and profitable contribution that economists can make to immigrant communities by providing an economic impact report. This impact report is very likely to not only help the reviewing office to understand the quantitative impact sustained by the qualifying relative and add value in determining extreme hardship.
USCIS Policy Manual, Volume 9, Waivers, Part B, Extreme Hardship, Chapter 5, Extreme Hardship Considerations.