Client Approval: I-601 Waiver Approved for 3 Year Unlawful Presence Bar

Client Approval: I-601 Waiver Approved for 3 Year Unlawful Presence Bar

Our office received approval of the I-601 “unlawful presence” waiver for the fiancée of a U.S. citizen.   She had previously entered the U.S. as a non-immigrant visitor but overstayed her authorized period of stay in the U.S. by over six months before departing back to the United Kingdom.  The U.S. citizen fiancée filed the I-129F Petition for Alien Fiancé(e) on her behalf.  She was interviewed at the U.S. embassy in London where she was denied the K-1 visa based upon being subject to the 3 year unlawful presence bar under Section 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act.  The U.S. citizen fiancé subsequently contacted my office to prepare and submit the I-601 waiver on their behalf.

INA Section 212(a)(9)(B)(v) provides that a waiver for INA Section 212(a)(9)(B)(i)(II) is applicable solely where the applicant establishes extreme hardship to her U.S. citizen or lawfully resident spouse or parent.  A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

Extreme hardship is “not a definable term of fixed and inflexible content or meaning, but necessarily depends upon the facts and circumstances peculiar to each case.”  Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964 ).

In Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565-66 (BIA 1999), the Board of Immigration Appeals (BIA) provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative.  The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.

The Board of Immigration Appeals has also made it clear that although hardships may not be extreme when considered abstractly or individually,  “relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of O-J-O, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882).  The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.”

The Board of Immigration Appeals has also held that hardship factors such as family separation, economic disadvantage, cultural readjustment, et cetera, differ in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships.   See, e.g., Matter of Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch regarding hardship faced by qualifying relatives on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which they would relocate).

As an example, the Board of Immigration Appeals has found family separation, a common result of inadmissibility or removal, can also be the most important single hardship factor in considering hardship in the aggregate. See Salcido-Salcido, 138 F.3d at 1293 (quotingContreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983; but see Matter of Ngai, 19 I&N Dec. at 247 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

In support of my client’s I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of my clients’ situation met the legal standards used to define “extreme hardship.”  This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief.

The positive factors in this case included:

  • The U.S. citizen fiancé is a disabled U.S. veteran who sustained injuries during combat training and deployment.
  • The U.S. citizen fiancé has been diagnosed with Post-Traumatic Stress Disorder, recurring migraines, chronic knee pain, Depression, and Hypertension.  He receives medical care through the U.S. Department of Veterans Affairs.
  • The U.S. citizen fiancé continues to work with the U.S. Marine Corp as a specialized contractor.
  • The U.S. citizen fiancé has significant financial obligations in the U.S. including mortgage payments on a family home. Departure from the U.S. would mean discontinuation of his work with the U.S. Marine Corp and the inability to afford his existing monthly payments.

 It is my experience that waiver applications filed by fiancées and spouses of U.S. military personnel and veterans are generally given more favorable discretion by the USCIS if the importance of their duties to the national security of the U.S. can be demonstrated.  I thus elaborated on the vital nature of the U.S. citizen fiancé’s continued work with the U.S. Marine Corp and how instrumental his work is to safe-guarding the lives of American soldiers. .

 As a result of the “unlawful presence” waiver prepared and submitted by our office, this I-601 waiver application was received and the couple can be re-united in the United States.