601 Waiver Legal News: Balancing of the Equities and Adverse Matters in I-601 Waivers

601 Waiver

This case demonstrates the importance of balancing the need for conciseness in a I-601 waiver case (you do not want to overwhelm the USCIS officer with too much documentation) with presenting as many favorable factors from your lives as possible.

The applicant in this case is a citizen of Mexico who had an approved I-130 Petition for Immediate Relative filed by her lawful permanent resident husband and son.  She previously obtained a lawful permanent residence card using the identity of her sister-in-law and procured admission into the U.S. on six separate occasions.

She was deemed inadmissible to the U.S. based on Section 212(a)(6)(C) of the Immigration and Nationality Act which provides, in relevant part:

(i) In general.- Any alien who, by fraud or willfully misrepresenting a material fact seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

She applied for the I-601 waiver pursuant to Section 212(i) of the INA which provides, in relevant part:

(1) The Attorney General [now the Secretary of Homeland Security (Secretary)] may, in the discretion of the [Secretary], waive the application of clause (i) of subsection (a)(6)(C) in the case of an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.

The AAO found that the lawful permanent spouse of the applicant in this case would suffer extreme hardship.  It is notable that the AAO found extreme hardship despite the LPR spouse having no particular medical condition of his own aside from being elderly.

The AAO also cited Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996) in finding that extreme hardship is but one favorable discretionary factor to be considered.  The AAO went on to state:

For waivers of inadmissibility, the burden is on the applicant to establish that a grant of a waiver of inadmissibility is warranted in the exercise of discretion.  The adverse factors evidencing an alien’s undesirability as a permanent resident must be balanced with the social and humane considerations presented on his behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of this country.

The factors adverse to the applicant include:

  • the nature and underlying circumstances of the exclusion ground at issue
  • the presence of additional significant violations of this country’s immigration laws
  • the existence of a criminal record and, if so, its nature, recency and seriousness, and
  • the presence of other evidence indicative of an alien’s bad character or undesirability as a permanent resident of this country

The favorable considerations include:

  • family ties in the United States
  • residence of long duration in this country (particularly where the alien began his residency at a young age)
  • evidence of hardship to the alien and his family if he is excluded and deported
  • service in this country’s Armed Forces
  • a history of stable employment
  • the existence of property or business ties
  • evidence of value and service to the community
  • evidence of genuine rehabilitation if a criminal record exists, and
  • other evidence attesting to the alien’s good character (e.g., affidavits from family, friends, and responsible community representatives)

Thus, in all I-601 waiver cases, the record as a whole is reviewed and a “balancing of the equities and adverse matters” is conducted to determine whether discretion should be favorably exercised.

In this case, the applicant and her LPR husband have been married for 33 years.  The LPR husband has always cared for the applicant, who suffers from several medical conditions that have required surgeries and on-going treatment.  These conditions include Basal Cell Carcinoma, Rectal Carcinoid Tumors, Seizure Disorder, Dyslipidemia, Hypothyroidism, and has undergone reconstruction and flap replacement of her right cheek.   She is permanently unable to drive due to epilepsy.

The lawful permanent resident husband was the sole financial provider for the family.  He demonstrated that he could not afford to pay for the applicant’s medical care in Mexico nor the travel costs to take care of her there.  He also feared for his wife’s well-being given the lack of medical care in remote areas of Mexico as well as high-rates of violence throughout the country.   He could not live in Mexico given his extensive family ties in the U.S. as well as his advanced age.

The applicant helps care for her grandchildren while her daughter works.  Her daughter would have to quit her job without the applicant’s babysitting since she cannot afford child care.  The applicant has numerous family ties to the U.S., has always paid taxes, and has no criminal record.

Given the situation described above, and despite the LPR husband having no notable medical condition of his own, extreme hardship was still found and the I-601 waiver approved.