601 Waiver Legal News: AAO Overturns USCIS Decision on 601 Waiver

601 Waiver

I personally try to review every 601, 601A, and 212 waiver case that is made available, as they provide a valuable insight into the discretionary standards applied in deciding immigration waiver applications.

This case is instructive in the persuasive importance of medical hardship when waiver cases are adjudicated.  It involves a citizen of the Philippines who was found inadmissible to the U.S. under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act. The applicant is the spouse of a U.S. citizen who previously entered the United States using a fraudulent passport.

Section 212(a)(6)(C) of the Act provides, in pertinent part: (i) 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.

The applicant applied for a 601 waiver pursuant to Section 212(i) of the INA which provides: (1) The [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 USCIS Field Director concluded that the applicant had failed to demonstrate extreme hardship to her qualifying spouse and denied the application.  The AAO overturned the decision on appeal and granted the waiver.

The AAO stated that 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).

The AAO also cited Matter of Cervantes-Gonzalez, in which the Board of Immigration Appeals (Board) provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or U.S. 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. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id. at 566.

The following factors in this case were deemed persuasive in granting the 601 waiver:

  • The applicant suffered from reproductive health issues since 2000
  • The applicant has resided for a long period of time in the U.S. and has a husband and family members who are U.S. citizens
  • A letter from her doctor and medical records showed that she has been attempting to have a child with her U.S. citizen husband through in vitro fertilization since 2006.
  • The letter from her doctor stated that she must avoid stress and remain in the U.S. for fertility treatments if she wishes to ever have a child in the future.
  • She has undergone surgeries due to her reproductive health issue, and takes medication for depression and anxiety.
  • Bank statements, mortgage payments, and utility bills showed that the U.S. citizen husband could not afford fertility treatments for his wife if she were forced to live in the Philippines.
  • They demonstrated that the applicant moving to the Philippines would prevent the couple from having the child they so desperately wanted, which would in turn cause tremendous emotional stress on the U.S. citizen husband
  • They demonstrated that the U.S. citizen husband could not afford to make mortgage payments on their family home or afford his other monthly payments without his wife’s financial contributions.
  • The U.S. citizen husband has significant family ties to the United States, including parents, sisters, nieces, aunts, and uncles.
  • The U.S. citizen husband has enjoyed long-term employment in the U.S.
  • The U.S. citizen husband provided medical documentation showing a severe allergic reaction he suffered during his last visit to the Philippines due to pollution