I-601 and I-212 Waivers Approved for U.S. Citizen Spouse and Mexican Spouse currently residing outside the United States

I-601 and I-212 Waivers Approved for Mexican Spouse of U.S. Citizen, both of whom reside outside the United States

Our office received approval of both the I-601 Waiver (Application for Waiver of Grounds of Inadmissibility) and I-212 Waiver (Application for Permission to Reapply for Admission) for the Mexican spouse of a U.S. citizen husband, both of whom presently reside outside the United States.

Note: It is important to keep in mind that under current guidelines for the submission of I-601 or combined I-601 and I-212 waiver applications, immigrant visa applicants must first be denied for an immigrant visa by the consular officer at the U.S. embassy or consulate abroad, before they are eligible to submit their I-601 or combined I-601 and I-212 waiver packages.

For practical purposes, when the I-601 “Extreme Hardship” waiver is filed together with the I-212 Waiver, preparing a winning I-601 waiver application (by demonstrating extreme hardship to the qualifying relative and presenting a situation that warrants favorable discretion by the adjudicating officer) allows the applicant to also meet the standard for approval of the I-212 waiver.

In other words, if your I-601 waiver is approved, then the I-212 waiver will generally be approved as well.

Our client was subject to the 5 year “expedited removal” ban due to being removed from the United States during her most recent attempted entry into the United States on a valid B-1/B-2 visa. During this incident, she was also charged with a life-time ban for fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

Section 212(a)(9)(A)(i) and (ii) of the Immigration and National Act, as added by IIRAIRA Section 301, provides that foreign nationals who have been ordered removed may not be readmitted to the United States until they have stayed outside the U.S. for a specified period of time:

  • 5 years for individuals removed through summary exclusion or through removal proceedings initiated upon the person’s arrival in the U.S.;
  • 10 years for those otherwise ordered removed after a deportation hearing or whodeparted the United States while an order of removal was outstanding; and
  • 20 years for a second or subsequent removal.

The I-212 waiver allows foreign nationals who wish to return to the U.S. prior to meeting the required amount of time outside the U.S. to file an application for permission to reapply pursuant to INA Section 212(a)(A)((iii).

In Matter of Tin, 14 I & N 371 (1973), and Matter of Lee, 17 I & N Dec. 275 (1978), the Board of Immigration Appeals established the standards to be considered in adjudicating applications for permission to reapply.

In Matter of Tin, the BIA stated that in determining whether consent to reapply for admission should be granted, all pertinent circumstances relating to the application should be considered including: 1. the basis for deportation; 2. recency of deportation; 3. applicant’s length of residence in the United States; 4. the applicant’s good moral character; 5. the applicant’s respect for law and order; 6. evidence of reformation and rehabilitation; 7. The applicant’s family responsibilities; 8. Any inadmissibility to the United States under other sections of law; 9. hardship involving the applicant and others; 10. the need for the applicant’s services in the United States; and 11. whether the applicant has an approved immigrant or non-immigrant visa petition.

In Matter of Lee, the BIA stated that INA 212(a)(9)(A)(iii) was intended to be remedial rather than punitive, explaining that the factor of “recency of deportation” can only be considered when there is a finding of poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience.

INA 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 Attorney General [now the Secretary of Homeland Security (Secretary)] may, in the discretion of the Attorney General [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 Attorney General [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.

A waiver of inadmissibility under section 212(i) of the Act is dependent on a showing that the bar to admission imposes extreme hardship on a qualifying relative, which includes the U.S. citizen or lawfully resident spouse or parent of the applicant.  If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

An I-601 Application for Waiver of Grounds of Inadmissibility requires a showing that the applicant’s U.S. citizen spouse or parent would suffer “extreme hardship” if the applicant is refused admission into the United States.

”Extreme hardship” has a special meaning under U.S. immigration law.  The factors considered relevant in determining extreme hardship include:

  • Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.
  • Financial considerations: future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children; cost of caring for family members (i.e., elderly and infirm parents).
  • Education: loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time in grade; availability of special requirements, such as training programs or internships in specific fields.
  • Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
  • Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
  • Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

Spouses must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.

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, the 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 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. 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 Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant 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.” Id.

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs 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).

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (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).

Therefore, the AAO considers the totality of the circumstances in determining whether denial of admission would result in extreme hardship to a qualifying relative.

We prepared a detailed and comprehensive waiver package requesting approval of our client’s I-601 and I-212 waiver applications, including a 36 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship,” together with a collection of 22 different exhibits to prove the essential elements of our case.

This was a particularly challenging case since both the U.S. citizen and foreign spouse presently reside in the country of Mexico. We therefore made sure to elaborate upon on the extreme hardships being presently suffered by the U.S. citizen spouse while living outside the United States; how these hardships are being presently exacerbated and continue to worsen due to his continued residence outside of the United States; and alternatively, how re-locating back to the United States without his spouse would also trigger extreme hardships that could jeopardize his psychological and physical health.

Relevant factors in this case included:

  • The U.S. citizen spouse suffers from Generalized Anxiety Disorder and Persistent Depressive “Dysthymic” Disorder, with mental health issues including addiction that date back to childhood and have required psychotherapeutic treatment and medication.
  • The U.S. citizen spouse attempted to reside in the United States while visiting his foreign spouse (who resides in Mexico) in the past, but the separation and stress proved psychologically devastating for him, and directly contributed to his relapse into addiction
  • The U.S. citizen spouse presently resides in Mexico with his foreign spouse but still maintains his U.S.-based employment, leading to unreasonably long commute times every single day, causing deterioration of his fragile psychological and emotional state
  • Re-location to Mexico has cut off the U.S. citizen spouse from his close family members, and prevents him from providing care and support for his seriously ailing father and grandfather. This is leading to psychiatric distress over being unavailable to provide the care and support his family members need, to whom he is very close.

Due to our efforts, our client was approved for both the I-212 waiver and I-601 waiver after submission to the USCIS.  This family can now lawfully reside together inside the United States.

212(d)(3) Non-Immigrant Waiver Approved for B-1/B-2 Visa Applicant Charged with Fraud/Misrepresentation and Conviction of Crimes involving Moral Turpitude

212(d)(3) Non-Immigrant Waiver Approved for B-1/B-2 Visa Applicant Charged with Fraud/Misrepresentation and Conviction of Crimes involving Moral Turpitude

We recently received approval for a 212(d)(3) non-immigrant waiver prepared on behalf of a South Korean client who was subject to a life-time bar from entering the United States due to being charged with fraud/misrepresentation pursuant to INA Section 212(a)(6)(C)(i) and multiple convictions of Crimes Involving Moral Turpitude under INA Section 212(a)(2)(A)(i).

Our client previously attended middle school, high school, and university in the United States before returning to his native country of South Korea. He recently attempted to re-enter the United States as a temporary visitor to visit his family members and long-time friends, as well as pursue an entrepreneurial venture in partnership with a U.S.-based company.

He was denied entry due to being charged with fraud/misrepresentation under INA Section 212(a)(6)(C)(i) and multiple convictions of Crimes Involving Moral Turpitude under INA Section 212(a)(2)(A)(i). He subsequently contacted my office for assistance in obtaining a waiver of both INA Section 212(a)(6)(C)(i) and 212(a)(2)(A)(i) , as well as approval of a B-1/B-2 visa to temporarily visit the U.S. in the future.

We prepared a comprehensive 212(d)(3) non-immigrant waiver in the form of a fourteen-page legal brief discussing the three legal factors set forth by Matter of Hranka, 16 I&N Dec. 491 (BIA 1978). We also submitted twelve separate exhibits supporting all of the factors set forth in our memorandum including: numerous affidavits; financial documentation; police reports and court records; military service records; business presentations and documentation; along with other vital evidence we have found necessary to secure approval of the 212(d)(3) waiver.

In the case, Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the Board of Immigration Appeals reversed a district director’s denial of a waiver application filed by a Canadian woman who had been deported for engaging in prostitution and admitted to previous heroin use.  She filed her application only two years after having been deported.  She requested entry to visit relatives and engage in various tourist activities.

In overturning the district director’s decision to deny the application, the BIA accepted as proof of rehabilitation letters from the applicant’s mother, and the principal of the high school the applicant had attended, who is a psychologist.  It held that the applicant’s reasons for entering the United States need not be compelling.  The BIA articulated three criteria for granting a waiver under INA 212(d)(3)

1.      The risks of harm in admitting the applicant;

2.      The seriousness of the acts that caused the inadmissibility; and

3.      The importance of the applicant’s reason for seeking entry.

Both Department of State and the Foreign Affairs Manual specify that any nonimmigrant may request a waiver as long as his or her presence would not be detrimental to the United States.  They provide that “while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” See 22 CFR 40.301 Foreign Affairs Manual (FAM) 40.301 N3.  Furthermore, the Admissibility Review Office has confirmed that it will follow and adhere to Matter of Hranka in adjudicating requests for INA 212(d)(3) waivers.

In our client’s case, we addressed each of the factors laid out by Matter of Hranka emphasizing the importance of our client’s reason for entering the U.S.: namely, the vital importance of allowing a prior student of the United States educational system to re-visit the U.S. and visit his long-time friends; allowing our client to visit his U.S. citizen relatives who he has not seen for over 7+ years; and to facilitate the growth of the U.S. economy and promote international trade by allowing our client to meet with a U.S. company that he has entered into a contractual business agreement with.

We emphasized the non-existent risk of our client overstaying or violating the terms of a B-1/B-2 visa, given his ownership and operation of a South Korean company that requires his day-to-day managerial and operational presence; his prior lawful presence in the United States as a foreign student on a valid F-1 visa; our client’s intimate support and long-term commitment to his parents, who rely upon our client for their overall care and payment of household expenses; and our client’s legitimate business need to meet with a U.S. company, with whom he has entered into a contractual agreement.

Based upon these factors, our client was first recommended for the 212(d)(3) waiver by the interviewing consular officer at the U.S. embassy; then later approved for the 212(d)(3) non-immigrant waiver by the Admissibility Review Office in Washington D.C.; and finally, for the B-1/B-2 Visitor Visa.

These types of cases are difficult to get approved due to the tendency of US consular officers to attribute “immigrant intent” to non-immigrant visa applicants and consequently, refuse recommendation of the 212(d)(3) waiver.  This was especially so in this case because our client had multiple grounds of inadmissibility which he was subject to.

Due to our extensive preparation of the waiver and lobbying undertaken to ensure its adequate consideration and review by the U.S. consulate, our client is now able to enter the United States, visit his family members and long-time friends, and further the success of his entrepreneurial venture.

I-601 Waiver Pursuant to INA 212(h)(1)(A) and INA 212(h)(1)(B) Approved for Israeli Applicant Charged with Crimes involving Moral Turpitude

I-601 Waiver Pursuant to INA 212(h)(1)(A) and INA 212(h)(1)(B) Approved for Israeli Applicant Charged with Crimes involving Moral Turpitude

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a client who was subject to a lifetime ban from being admitted to the United States pursuant to INA 212(a)(2)(A)(i)(I).

Our client was charged and convicted of conduct which occurred between 1995 and 1997, for which offense he was fined over $10,000 USD and given a sentence of 31 months. These convictions triggered the lifetime inadmissibility bar pursuant to INA 212(a)(2)(A)(i)(I) “Crimes involving moral turpitude.”  After being discharged from prison, he was removed from the United States and returned to his home country of Israel.

The waiver applicant’s U.S. citizen daughter contacted me after her father was denied admission to the U.S. following his immigrant visa interview at the U.S. embassy in Israel.  We initiated work on this case after a detailed consultation by first sending the clients our Waiver Worksheets.  Our Waiver Worksheets contain a comprehensive list of questions for our clients to answer along with a detailed checklist of supporting documents to gather – all for the purpose of eliciting every piece of information that will allow us to prepare a winning immigration waiver package on behalf of our clients.

A thoroughly researched and documented waiver memorandum and package was subsequently prepared by our office based on the fact that more than 15 years have passed since the applicant was convicted of criminal offense in the United States; the clear evidence that his admission would not be contrary to the national welfare, safety or security of the United States; and that he has been fully rehabilitated.

Legal Requirements of the § 212(h) Waiver

Section 212(h) of the Immigration and Nationality Act provides a discretionary waiver for the following criminal grounds of inadmissibility:

  • Crimes involving moral turpitude (subparagraph 212(a)(2)(A)(I))
  • Multiple criminal convictions (212(a)(2)(B))
  • Prostitution and commercial vice (212(a)(2)(D))
  • Certain aliens who have asserted immunity from prosecution (212(a)(2)(E))
  • An offense of simple possession of 30 grams or less of marijuana (212(a)(2)(A)(i)(II))

INA 212(h)(1)(A) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), and (E) of the Act may be waived in the case of an alien who demonstrates to the satisfaction of the Attorney General that:

  • the activities for which she is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of status;
  • the admission would not be contrary to the national welfare, safety, or security of the U.S.; and
  • the alien has been rehabilitated;

INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who:

  • has a parent, spouse, son, or daughter who is a U.S. citizen or lawful permanent resident of the United States; and
  • the parent, spouse, son, or daughter would suffer “extreme hardship” on account of the alien’s ineligibility to immigrate

Waiver applicants must also show that their application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in his or her case.

In support of my client’s I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of his situation met the legal standards of both INA 212(h)(1)(A) and INA 212(h)(1)(B), including citations of existing case law favorable to my client’s case.  In other words, we went beyond what was required by presenting both legal arguments and documentary evidence to demonstrate eligibility for the I-601 waiver under two separate provisions of the Immigration & Nationality Act.

I showed that my client is rehabilitated and his admission not contrary to the national welfare, safety, or security of the U.S., based upon his long-history as a successful small business owner; his charitable acts including regularly donating food to local religious-educational institutions; as well as his selfless dedication to the care and education of his U.S. citizen children. I argued that even while in prison serving his sentence, he took advantage of the educational opportunities afforded to him to earn his high school equivalency; completed a custodial skills training program; and obtained early release from prison for good behavior.

I presented in-depth evidence that he committed himself to being an ethical, law-abiding, and respected member of his community after his release from prison.   His impeccable conduct for over 15+ years as well as a myriad of affidavits by friends and family proved that our client posed absolutely no risk to the safety or welfare of the U.S., and in fact, would substantially contribute to the U.S. if admitted as a permanent resident.

It is often important in waiver applications to demonstrate (when possible) an important turning point in an applicant’s life, which provides a marker that the USCIS officer can point to and remember has having effected a fundamental change in the applicant’s outlook and conduct.

We also discussed how the unique circumstances and dynamics of this family, and being unable to lawfully reside in the U.S., was presently causing extreme psychological, emotional, medical, and financial hardship to multiple U.S. citizen qualifying relatives.  We presented arguments showing how these extreme hardship factors would worsen if our client is not admitted into the United States.

An extensive collection of fifteen separate legal exhibits also provided a variety of evidence in support of our client’s good moral character and rehabilitation, as well as a finding of extreme hardship that his qualifying relatives would suffer in the event his I-601 waiver was denied.

As a result of our efforts, our client was approved for the 601 waiver and will be receiving his lawful permanent residence to join his family in the United States.

I-601 Waiver for Crime Involving Moral Turpitude Approved for K-1 Fiance

I-601 Waiver for Crime Involving Moral Turpitude Approved for K-1 Fiancé

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for the foreign fiancé of a U.S. citizen who is subject to a life-time bar from being admitted to the United States for conviction of a crime involving moral turpitude under INA Section 212(a)(2)(A)(i)(I).

Our office was contacted by our clients after the foreign fiancé attended his consular interview; was denied and deemed inadmissible for not disclosing a previously expunged conviction; and given a “Foreign Service of the United States of America Refusal Worksheet.” This refusal worksheet will typically notify the applicant of the specific inadmissibility (under the Immigration & Nationality Act) that the applicant is subject to, and whether the applicant is eligible to apply for a waiver or not.

Section 212(a)(2)(A) of the Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien was released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of the application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

The Board of Immigration Appeals (BIA) held in Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992), that:

[M]oral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.. ..In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

Section 212(h) of the Act provides, in pertinent part, that:

(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E).-The Attorney General [now the Secretary of Homeland Security, “Secretary”] may, in [her] discretion, waive the application of subparagraphs (A)(i)(I) … of subsection (a)(2) if-

(B) in the case of,an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it established to the satisfaction of the [Secretary] that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.

(2) the [Secretary], in [her] discretion, and pursuant to such terms, conditions and procedures as [she] may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.

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, the 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 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. 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 Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994);Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 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.” Id.

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs 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.,, 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).

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (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).

Therefore, the AAO considers the totality of the circumstances in determining whether denial of admission would result in extreme hardship to a qualifying relative.

Immediately after this case was opened, we initiated our comprehensive immigrant waiver preparation process that has allowed us to prepare winning I-601, I-601A, I-212, and 212(d)(3) waiver applications for the past 17+ years.

We provide our clients with a comprehensive waiver worksheet containing a thorough array of questions to answer about their lives.  This allows us to “brainstorm” every relevant factor (such as medical, physical, psychological, financial, legal, or other hardships, along with any other persuasive argument) that may apply. We then analyze each factor and decide upon the most effective way to present it to the USCIS in our waiver application.

Our waiver worksheet also contains a long checklist of supporting documents to gather and present based upon our experience with successful waiver applications submitted during the past 17+ years.

Overall, our waiver preparation process is constantly improved upon since we regularly prepare and submit winning immigrant waiver applications for clients who come from countries throughout the world.  We are proud to receive multiple approvals on I-601, I-601A, I-212, and 212(d)(3) waiver applications filed on behalf of our clients every single month.

The essential factors we highlighted in our 31 page legal memorandum (including 19 separate legal exhibits to prove every substantial element of our I-601 waiver case) include the following:

  • The U.S. citizen fiancée lives near her aging U.S. citizen parents and assists her father as he copes with a multitude of medical conditions. In addition to caring for her father, the U.S. citizen fiancée also struggles to manage her own health as she suffers from diabetes and mitral valve prolapse, and battles depression and anxiety.
  • The U.S. citizen fiancée harbors the emotional scars of a traumatic early life, and has been diagnosed with Generalized Anxiety Disorder and Persistent Depressive Disorder.
  • The U.S. citizen fiancée’s mother manages the the condition of diabetes and arthritis.
  • The U.S. citizen fiancée feels tremendous responsibility to care for her parents and continue to be physically present for them, especially as their health further deteriorates. She suffers immense anxiety at the possibility of re-locating abroad and being separated from her ailing parents, should the I-601 waiver application be denied
  • The U.S. citizen fiancée maintains employment, but she has accrued substantial credit card debt paying for flights to visit her foreign fiance abroad. More importantly, the stress of her fiancé’s uncertain immigration status, coupled with her psychiatric conditions, has caused her work performance to be negatively impacted and she is fearful of losing her job. The mental anguish she is facing prompted her to receive a referral to a counselor through the Employee Assistance Program at her place of employment.

In these types of cases, it is always important to present and prove the hardships of close U.S. citizen or lawful permanent relatives whose well-being are intimately tied to that of the qualifying relative; and demonstrate how all of the parties involved would be impacted by the immigration consequences of their situation.

Due to our efforts on behalf of this family, the I-601 Waiver application was approved. The K-1 foreign fiancé may now lawfully enter the United States; the couple can get married within 90 days of his entry into the U.S; and the foreign applicant may proceed with his process to Adjust Status to Lawful Permanent Residence thereafter.

I-601 Waiver for Multiple Crimes Involving Moral Turpitude and Adjustment of Status to Permanent Residence Approved

I-601 Waiver for Multiple Crimes Involving Moral Turpitude and Adjustment of Status to Permanent Residence Approved

Our office received approval of both the I-485 Application to Adjust Status to Permanent Residence and the I-601 Application of Waiver of Grounds of Inadmissibility for a citizen of Pakistan. Our client was subject to a life-time bar from being admitted to the United States as a lawful permanent resident due to conviction of multiple crimes involving moral turpitude under INA Section 212(a)(2)(A)(i)(I).  

Our client was previously granted asylum and living lawfully inside the United States when he was convicted of two misdemeanor crimes over 15 years ago and sentenced to 11 months of probation. Our office was engaged by the client to prepare and file the I-485 Application to Adjust Status package based on his marriage to a U.S. citizen spouse, as well as prepare and submit the I-601 “extreme hardship” waiver due to his inadmissibility for conviction of multiple CIMT (“Crimes Involving Moral Turpitude”).

We provided the client with a detailed letter going over the the I-485 Adjustment of Status process, including a comprehensive checklist of documents for him and his spouse to gather and return to our office. We prepared all of the required USCIS forms; verified that every piece of information required by the USCIS was answered accurately; and submitted a meticulously prepared Adjustment of Status package to the USCIS while simultaneously preparing the I-601 “extreme hardship” waiver.

I initiated our firm’s comprehensive process for preparation of powerful and effective immigration waiver applications.  I forwarded our Extreme Hardship Worksheet to my clients, which contains questions designed to elicit extreme hardships and other persuasive factors.  I also recommended the couple to a clinical psychologist well-versed in preparing psychological evaluations for immigration waivers and who offers a significantly discounted fee for my clients (please refer to my post on the elements of a powerful psychological evaluation for I-601 waiver applications for more details).

Once we identified the most important factors of the case, we prepared a comprehensive legal brief going over how the facts and circumstances of my client’s situation met the legal standards used to define “extreme hardship.” We prepared a 31 page legal memorandum thoroughly presenting relevant case law as well as the extreme hardship and discretionary factors relevant to this case.  A detailed table of exhibits providing objective proof of every crucial assertion made in our waiver was also included, as it is with all of our waiver applications.  

Section 212(a)(2)(A) of the Immigration & Nationality Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien was released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of the application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

The Board of Immigration Appeals (BIA) held in Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992), that:

[M]oral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.. ..In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

Section 212(h) of the Act provides, in pertinent part, that:

(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E).-The Attorney General [now the Secretary of Homeland Security, “Secretary”] may, in [her] discretion, waive the application of subparagraphs (A)(i)(I) … of subsection (a)(2) if-

(B) in the case of,an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it established to the satisfaction of the [Secretary] that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.

(2) the [Secretary], in [her] discretion, and pursuant to such terms, conditions and procedures as [she] may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.

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, the 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 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. 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 Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 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.” Id.

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs 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).

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (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).

Therefore, the AAO considers the totality of the circumstances in determining whether denial of admission would result in extreme hardship to a qualifying relative.

Some of the favorable factors that contributed to approval of this I-601 “extreme hardship” waiver for conviction of multiple crimes involving moral turpitude include the following:

  • The U.S. citizen spouse suffers from three major psychiatric disorders: Generalized Anxiety Disorder, Persistent Depressive “Dysthymic” Disorder, and Post-Traumatic Stress Disorder – Chronic, with a significant family history of psychological illness.
  • The U.S. citizen spouse has a personal history of trauma that has precipitated the development of Post-Traumatic Stress Disorder, which has now been further exacerbated by the threatened separation from her husband
  • The U.S. citizen spouse suffers from asthma, sciatica, and pain due to ailments associated with advancing age. She can only manage her daily life and responsibilities due to the emotional and psychological support and physical assistance she receives from her husband
  • The U.S. citizen spouse’s emotional and psychological status is considered fragile, and long-term separation from her husband will place her at substantial risk for psychiatric decompensation according to a psycho-social evaluation conducted by a licensed clinical psychologist
  • The couple have significant financial debt, and are dependent on the husband’s meager income (with assistance from their adult children), to survive economically.

Our I-601 waiver also thoroughly addressed how the possible scenario of relocation from the U.S. (should the waiver not be granted and the couple be forced to relocate to Pakistan) would also cause extreme hardship to the U.S. citizen spouse:

  • The couple would live in poverty and in constant fear of assault as a member of a persecuted religious minority in Pakistan;
  • The U.S. citizen wife would be exposed to high risk of exposure to infectious disease in a country with third-world level medical infrastructure;
  • The U.S. citizen spouse would lose access to the quality health care needed to monitor and mitigate her asthma and sciatica; no longer be able to obtain and afford necessary medications, nor be able to receive the emergency medical care needed to potentially save her life in a medical crisis;
  • The U.S. citizen spouse would be unable to afford health insurance in Pakistan;
  • The U.S. citizen spouse would lose access to a medical infrastructure that ensures prescriptions are refilled in a timely manner;
  • The U.S. citizen spouse would lose access to competent mental health treatment services at a time when she will be under extraordinary stress and most in need of such services;
  • The U.S. citizen spouse would face stigma associated with mental illness and her religious status, impairing her re-integration into Pakistan’s culture and society;
  • The U.S. citizen spouse would have virtually no job prospects given that she has little employment experience, very limited education, the high rate of unemployment in Pakistan, and her advancing age;
  • The U.S. citizen spouse would face discrimination because of her religious status in a country that has legalized discrimination and has a history of assaults on this minority;
  • The U.S. citizen spouse would be wholly separated from her family in the U.S. and unable to afford to return to the U.S. on an emergency basis.

Extreme hardship is a requirement for eligibility, but once established it is but one favorable discretionary factor to be considered. Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). 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. Id. at 299. 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. Id. at 300.  In Matter of Mendez-Moralez, in evaluating whether section 212(h)(1)(B) relief is warranted in the exercise of discretion, the BIA stated that:

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). Id. at 301.

The BIA further states that upon review of the record as a whole, a balancing of the equities and adverse matters must be made to determine whether discretion should be favorably exercised. The equities that the applicant for relief must bring forward to establish that he merits a favorable exercise of administrative discretion will depend in each case on the nature and circumstances of the ground of exclusion sought to be waived and on the presence of any additional adverse matters, and as the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence. Id. at 301.

In this case, we also discussed and presented proof of every factor we determined to be important for purposes of securing approval of the I-601 waiver.  We determine these factors based upon close analysis of the clients’ personal situations as well as upon my experience of obtaining approval of I-601, I-212, I-601A, and 212(d)(3) waivers for the past 17 years.   These factors included but were not limited to:

  • A summary discussion of the convictions for crimes involving moral turpitude, as well as any extenuating circumstances that led to the violations and the corresponding the sentence received
  • The applicant’s long period of residence and productive service inside the United States including the presence of a U.S. citizen spouse and several U.S. citizen children
  • The applicant being well-respected in the local religious community of his faith
  • The applicant’s tremendous efforts to raise law-abiding children and support their higher education, which led to all of his children attaining bachelor-level university degrees or higher
  • Numerous sworn-affidavits by family, friends, and prominent officials in a position to judge the character and rehabilitation of the applicant

As a result of our efforts, both the I-485 Application to Adjust Status to Permanent Residence and the I-601 Application of Waiver of Inadmissiblity were approved and this couple can continue to reside lawfully inside the United States.

I-601 Waiver Approved for Vietnamese Daughter of U.S. Citizen Father

I-601 "Extreme Hardship" Waiver for Fraud/Misrepresentation Approved for Vietnamese Daughter

We obtained approval of the I-601 Application of Waiver of Grounds of Inadmissibility for the Vietnamese daughter of a U.S. citizen father who was subject to a life-time bar for fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

INA Section 212(a)(6)(C)(i) states:

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.

Our client was previously married to a U.S. citizen husband for 6 years. She tried to immigrate to the United States through marriage to her U.S. citizen spouse but was denied for an immigrant visa because the consular officer at the time believed their marriage to be fraudulent. She was subsequently denied again for a non-immigrant visa based on the prior finding of fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

I was contacted by the client and her family to assist them in preparing and obtaining approval of the I-601 waiver of the finding of inadmissibility by the US consulate in Ho Chi Minh City, Vietnam. The I-130 Petition for Alien Relative had been filed by our client’s U.S. citizen father; approved by the USCIS; National Visa Center processing completed; and the submission and approval of this waiver was the only way by which the applicant would ever be allowed to enter the U.S. as an immigrant (i.e. as a U.S. lawful permanent resident).

Note: It is important to keep in mind that under current guidelines for the submission of I-601 or combined I-601 and I-212 waiver applications, immigrant visa applicants must first be denied for an immigrant visa by the consular officer at the U.S. embassy or consulate abroad, before they are eligible to submit their I-601 or combined I-601 and I-212 waiver packages.

An I-601 Application for Waiver of Grounds of Inadmissibility requires a showing that the applicant’s U.S. citizen spouse or parent would suffer “extreme hardship” if the applicant is refused admission into the United States.

”Extreme hardship” has a special meaning under U.S. immigration law.  The factors considered relevant in determining extreme hardship include:

  • Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.
  • Financial considerations: future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children; cost of caring for family members (i.e., elderly and infirm parents).
  • Education: loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time in grade; availability of special requirements, such as training programs or internships in specific fields.
  • Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
  • Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
  • Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

Spouses must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.

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, the 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 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. 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 Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant 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.” Id.

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs 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).

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (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).

Therefore, the AAO considers the totality of the circumstances in determining whether denial of admission would result in extreme hardship to a qualifying relative.

We prepared a detailed and comprehensive I-601 waiver application including a 30 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship,” together with a collection of 18 different exhibits to prove the essential elements of our case.

The “extreme hardship” factors presented as part of our case included included the day-to-day care that the U.S. citizen father requires due to suffering from Renal Failure, Hypertension, Prediabetes, Latent Tuberculosis, Hemorrhoids, and Back Pain. These conditions have left the U.S. citizen father unable to drive; greatly limited in mobility; and in persistent pain throughout the day.

Although the U.S. citizen father has his U.S. citizen wife as well as his two younger children who help him as best they can, we demonstrated that his elderly wife is greatly limited in her ability to provide the care that her husband needs due to her need to keep employed as well as her own infirmities. Additionally, we also showed that his younger daughter (who lives with her father and mother) also works full-time to financially support the family; her income is critical to meet the needs of this financially struggling family; and she simply does not have the time to devote to the constant care needed by her ailing father.

We went in-depth into this family’s history, showing the devastating toll having to leave the eldest daughter in Vietnam (while the rest of the family immigrated to the United States) has had on the U.S. citizen father, including a diagnosis of Generalized Anxiety Disorder and Persistent Depressive Disorder, made by a clinical psychologist who specializes in performing psycho-social evaluations for immigrant waiver cases.

Just as importantly, we demonstrated how the existing medical, psychological, emotional, and financial hardships being suffered by the U.S. citizen father are presently worsening due to the continued absence of the eldest daughter from the U.S. Without the medical, emotional, and financial support that the eldest daughter could provide from within the United States, the condition of the U.S. citizen father would continue to deteriorate, affecting the welfare of three other U.S. citizen family members who all desperately need the presence and support of the waiver applicant in their lives.

We also showed the potentially life-threatening impact that re-location to Vietnam would have on the U.S. citizen father given his compromised physical and psychological state, including the limited medical and psychological facilities that would be be available to him in Vietnam; his advanced age and inability to work to support himself in Vietnam; and the psychological toll of leaving his wife and two children in the U.S. would have on him, among other country-specific conditions.

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this family can now finally be united once again after a lengthy separation.

212(d)(3) Non-Immigrant Waiver for E-2 Treaty Investor Visa Application Approved

212(d)(3) Non-Immigrant Waiver for E-2 Treaty Investor Visa Application Approved

We received  approval for the 212(d)(3) non-immigrant waiver prepared on behalf of a client who was subject to the fraud/misrepresentation life-time bar pursuant to INA Section 212(a)(6)(C)(i).

Our client is the owner of a US start-up company which develops, markets, and operates cost-effective web and mobile applications for small-scale organizations.  He contacted my office to help him obtain approval of the 212(d)(3) non-immigrant waiver so that he could enter the U.S. as an E-2 Treaty Investor Visa Holder to direct and manage his start-up more effectively. 

We subsequently prepared a comprehensive 212(d)(3) non-immigrant waiver  in the form of a legal brief discussing the three legal factors set forth by Matter of Hranka, 16 I&N Dec. 491 (BIA 1978).

In the case, Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the Board of Immigration Appeals reversed a district director’s denial of a waiver application filed by a Canadian woman who had been deported for engaging in prostitution and admitted to previous heroin use.  She filed her application only two years after having been deported.  She requested entry to visit relatives and engage in various tourist activities.

In overturning the district director’s decision to deny the application, the BIA accepted as proof of rehabilitation letters from the applicant’s mother, and the principal of the high school the applicant had attended, who is a psychologist.  It held that the applicant’s reasons for entering the United States need not be compelling.  The BIA articulated three criteria for granting a waiver under INA 212(d)(3)

1.      The risks of harm in admitting the applicant;

2.      The seriousness of the acts that caused the inadmissibility; and

3.      The importance of the applicant’s reason for seeking entry.

Both Department of State and the Foreign Affairs Manual specify that any nonimmigrant may request a waiver as long as his or her presence would not be detrimental to the United States.  They provide that “while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” See 22 CFR 40.301 Foreign Affairs Manual (FAM) 40.301 N3.  Furthermore, the Admissibility Review Office has confirmed that it will follow and adhere to Matter of Hranka in adjudicating requests for INA 212(d)(3) waivers.

In our client’s case, we addressed each of the factors laid out by Matter of Hranka including but not limited to:

  • The non-existent risk of our client overstaying or violating the terms of an E-2 visa, given the substantial amount of capital already invested in his U.S. start-up; the revenues currently being generated by the company; large-order commitments by U.S. customers; our client’s personal history which demonstrates a truly dedicated focus on bring his product and company vision to fruition; as well as our client’s personal and financial ties to his home country (where he owns property, operates another company, and where all of his close family members reside)
  • An extensive set of mitigating factors as it relates to the violation that caused our client’s inadmissibility
  • Our client’s history of recognized leadership and accomplishments in business and technology, including a demonstrated commitment to public service and contributing towards a better civic society
  • A variety of positive factors unique to our client’s situation that clearly warranted favorable discretion on the part of the US consular officer and the Admissibility Review Office

Based upon these factors, our client was approved for the 212(d)(3) non-immigrant waiver by the Admissibility Review Office in Washington D.C., and subsequently, for the E-2 Treaty Investor Visa.  These types of cases are difficult to get approved due to the tendency of US consular officers to categorically reject non-immigrant visa applications with only a cursory review when a ground of inadmissibility is present.

Due to our extensive preparation of the waiver and careful lobbying undertaken to ensure its adequate consideration and review by the U.S. consulate, our client is now able to enter the United States and further the success of his promising technology-based start-up.

I-601 Waiver Approved for Multiple Convictions of Crimes Involving Moral Turpitude

I-601 Waiver Approved for Multiple Convictions of Crimes Involving Moral Turpitude

The applicant is a citizen of India who was found inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of two separate crimes involving moral turpitude: robbery and theft.

The applicant sought a waiver of inadmissibility under section 212(h) of the Act in order to reside in the United States with his U.S. citizen spouse.

Section 212(a)(2)(A) of the Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien was released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of the application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

The Board of Immigration Appeals (BIA) held in Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992), that:

[M]oral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.. ..In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

Section 212(h) of the Act provides, in pertinent part, that:

(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E).-The Attorney General [now the Secretary of Homeland Security, “Secretary”] may, in [her] discretion, waive the application of subparagraphs (A)(i)(I) … of subsection (a)(2) if-

(B) in the case of,an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it established to the satisfaction of the [Secretary] that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.

(2) the [Secretary], in [her] discretion, and pursuant to such terms, conditions and procedures as [she] may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.

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, the 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 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. 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 Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 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.” Id.

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs 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).

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (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).

Therefore, the AAO considers the totality of the circumstances in determining whether denial of admission would result in extreme hardship to a qualifying relative.

Some of the favorable factors that contributed to approval of this I-601 “extreme hardship” waiver for convictions of multiple crimes involving moral turpitude include the following:

  • The qualifying relatives for purposes of the I-601 waiver include the U.S. citizen spouse and two U.S. citizen children, all of whom reside in the United States
  • The U.S. citizen children are already developing behavioral problems due to separation from their father, including the youngest child refusing to eat and becoming critically underweight
  • The U.S. citizen wife has been diagnosed with psychological disorders, with a personal and family history of chronic illness and anxiety
  • The Indian husband’s income is not sufficient to support two households (his own and that of his family in the U.S.), and this is causing severe financial stress that is exacerbating the physical, psychological, and emotion state of the U.S. citizen wife and their children
  • The U.S. citizen wife suffers from a physical ailment, which only got worse during her attempted residence in India to be with her husband

Extreme hardship is a requirement for eligibility, but once established it is but one favorable discretionary factor to be considered. Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). 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. Id. at 299. 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. Id. at 300.  In Matter of Mendez-Moralez, in evaluating whether section 212(h)(1)(B) relief is warranted in the exercise of discretion, the BIA stated that:

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). Id. at 301.

The BIA further states that upon review of the record as a whole, a balancing of the equities and adverse matters must be made to determine whether discretion should be favorably exercised. The equities that the applicant for relief must bring forward to establish that he merits a favorable exercise of administrative discretion will depend in each case on the nature and circumstances of the ground of exclusion sought to be waived and on the presence of any additional adverse matters, and as the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence. Id. at 301.

In this case, we also discussed and presented proof of every factor we determined to be important for purposes of securing approval of the I-601 waiver.  We determine these factors based upon close analysis of the clients’ personal situations as well as upon my experience of obtaining approval of I-601, I-212, I-601A, and 212(d)(3) waivers for the past 15 years.   These factors included but were not limited to:

  • A summary discussion of the convictions for crimes involving moral turpitude, as well as any extenuating circumstances that led to the violations and the corresponding the sentence received
  • The applicant’s employment for a prestigious multinational company
  • The applicant’s involvement in humanitarian efforts
  • The applicant’s acceptance at one of the most prestigious universities in the world for graduate-level study
  • Numerous sworn-affidavits by family, colleagues, and prominent officials in a position to judge the character and rehabilitation of the applicant

As a result of our efforts, the I-601 waiver was approved and this family now resides together lawfully inside the United States.

I-212 Waiver Approved for Nigerian B-1/B-2 Visa Applicant Subject to 5 Year Ban

I-212 Waiver Approved for Nigerian B-1/B-2 Visa Applicant Subject to 5 Year Ban

Our client contacted my office after being expeditiously removed from the U.S. during his and his family’s attempted entry into the U.S. on valid B-1/B-2 visitor visas.  During inspection at the arriving port of entry, the CBP officer searched through their luggage and found children’s schoolbooks and school-related material as well as their medical records.

Our client informed the CBP officer that his wife and children planned to stay temporarily in the home of a relative while the Ebola epidemic was then a serious public health concern in Nigeria.  He informed the CBP officer that his wife and children would return back to Nigeria within 5 months.  Our client himself planned to return back to Nigeria within a few days to attend to businesses which he owns and operates in his home country.

The CBP officer determined that our client’s family did not overcome their presumption of immigrant intent and expeditiously removed them from the U.S.  My client subsequently contacted me because he needed to return to the U.S. to meet with business partners and customers and attend trade conventions that are vital to the operation and success of his enterprise.

Section 212(a)(9)(A)(i) and (ii) of the Immigration and National Act, as added by IIRAIRA Section 301, provides that foreign nationals who have been ordered removed may not be readmitted to the United States until they have stayed outside the U.S. for a specified period of time:

  • 5 years for individuals removed through summary exclusion or through removal proceedings initiated upon the person’s arrival in the U.S.;
  • 10 years for those otherwise ordered removed after a deportation hearing or who departed the United States while an order of removal was outstanding; and
  • 20 years for a second or subsequent removal.

The I-212 waiver allows foreign nationals who wish to return to the U.S. prior to meeting the required amount of time outside the U.S. to file an application for permission to reapply pursuant to INA Section 212(a)(A)((iii).

The USCIS exercises broad discretion when adjudicating I-212 waiver requests for permission to reapply.  The following may be considered positive factors in granting permission for early re-entry:

  •  Basis for the deportation
  • Recency of deportation
  • Foreign national’s length of residence in the U.S., and status held during that presence
  • Family responsibilities and ties to the U.S.
  • Foreign national’s evidence of good moral character
  • Foreign national’s respect for law and order
  • Evidence of reformation and rehabilitation
  • Hardship involving the applicant and others
  • Need for the applicant’s services in the U.S.
  • Whether the applicant has an approved immigrant or non-immigrant visa petition
  • Eligibility for a waiver of other inadmissibility grounds
  • Absence of significant undesirable or negative factors

Negative factors may include:

  • Evidence of moral depravity, including criminal tendencies reflected by an ongoing unlawful activity or continuing police record
  • Repeated violations of  immigration laws, willful disregard of other laws
  • Likelihood of becoming a public charge
  • Poor physical or mental condition (however, a need for treatment in the United States for such a condition would be a favorable factor)
  • Absence of close family ties or hardships
  • Spurious marriage to a U.S. citizen for purpose of gaining an immigration benefit
  • Unauthorized employment in the United States
  • Lack of skill for which labor certification could  be issued
  • Serious violation of immigration laws, which evidence a callous attitude without hint of reformation of character
  • Existence of other grounds of inadmissibility into the U.S.

In support of our client’s I-212 waiver application, we prepared a comprehensive legal brief going over how the facts and circumstances of his situation met the legal standards used to adjudicate an I-212 waiver application for a B-1/B-2 non-immigrant visa applicant.  The legal standards discussed included those set forth by the Board of Immigration Appeals in its precedent decision, Matter of Tin.  

Just as importantly, we presented substantial evidence of our client’s significant and permanent ties to his home country in order to overcome the presumption of immigrant intent.  We discussed and provided proof of our client’s previous travels to the United States, Canada, the United Kingdom, and other countries of the European Schenhen Area.  We presented details of his previous travels to the United States on business, attending trade conventions and conferences at which he and the management team of his companies have obtained training in cutting-edge technologies, strategies, and methodologies in their industry sector; negotiated contracts; and initiated business contacts with prospective clients.

We further presented corporate documentation showing the formation, capital structure, and revenues of our client’s companies that are based in his home country of Nigeria; our client’s own personal savings, investments, property ownership, and financial snapshot of his net worth; as well the reasons why it is critically important for him to enter the U.S. now to facilitate expansion of new start-up businesses in Nigeria that he has full or majority ownership of.

Just some of the supporting exhibits that we submitted to prove important assertions made in the legal brief and overcome immigrant intent included:

  • Passports and Visas for the Entire Family
  • Certificates of Incorporation
  • Expenses for Business Trips Previously Made to US
  • Family Travel Itinerary for Past 5 Years
  • Comprehensive Presentation of our Client’s Business Interests
  • Proof of Property Ownership
  • Property Surveys
  • Current Cash Assets of Companies Fully-owned by our Client
  • Personal Savings Account Statement
  • Contracts with Business Clients
  • Extended Contracts Demonstrating Product Marketing and Strategic Planning
  • Purchase Orders for Equipment by Companies Owned by our Client
  • Government Authorization to Employ Foreign Employees in Nigeria
  • Contracts with Business Partners
  • Criminal Record Background Checks
  • Attestations from Attorney

I-212 waivers for non-immigrants residing outside the U.S. and applying for non-immigrant visas are generally submitted at the U.S. embassy or consulate with jurisdiction over the applicant’s place of residence.

Thus, this waiver was submitted to the U.S. consulate in Lagos.

The I-212 waiver we thoroughly prepared for our client was subsequently approved.  Our client is now able to freely travel to the United States to further expand his businesses and meet with customers, partners, and colleagues in his respective industrial field.

I-601 and I-212 Waivers Approved for Colombian Spouse of U.S. Military Veteran

I-601 and I-212 Waivers Approved for Colombian Spouse of U.S. Military Veteran

Our office received approval of both the I-601 Waiver (Application for Waiver of Grounds of Inadmissibility) and I-212 Waiver (Application for Permission to Reapply for Admission) for the Colombian spouse of a U.S. citizen husband who is a veteran of the U.S. Armed Forces.

Our client lawfully entered the U.S. on a B-1/B-2 visitor visa when she was taken to the United States by her mother as a minor child.  She overstayed in the U.S. and was planning to leave the U.S. voluntarily with her mother when a deportation order was entered against her and her family.

She subsequently left from the U.S. to Colombia where she later met and fell in love with her U.S. citizen husband.

She was thus subject to the 10 year “unlawful presence bar” pursuant to INA INA Section 212(a)(9)(B) as well as the 10 year “deportation bar” pursuant to INA Section 212(a)(9)(A)(i) and (ii).

Keep in mind that combined I-601 and I-212 waiver submissions can only be submitted AFTER  the applicant is deemed inadmissible and denied an immigrant visa at his/her immigrant visa interview at a U.S. consulate or embassy.  It is therefore important to begin the waiver preparation process at least 3-4 months BEFORE such the consular interview is scheduled so that the waivers can be promptly submitted after the finding of inadmissibility by the consular officer.

Section 212(a)(9)(B) of the Act provides, in pertinent part:

(i) In General – Any alien (other than an alien lawfully admitted for permanent residence) who –

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of alien’s departure or removal from the United States, is inadmissible.

(v) Waiver. – The Attorney General [now the Secretary of Homeland Security (Secretary)] has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or 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 Attorney General [Secretary] that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

Section 212(a)(9)(A)(i) and (ii) of the Immigration and National Act, as added by IIRAIRA Section 301, provides that foreign nationals who have been ordered removed may not be readmitted to the United States until they have stayed outside the U.S. for a specified period of time:

  • 5 years for individuals removed through summary exclusion or through removal proceedings initiated upon the person’s arrival in the U.S.;
  • 10 years for those otherwise ordered removed after a deportation hearing or whodeparted the United States while an order of removal was outstanding; and
  • 20 years for a second or subsequent removal.

The I-212 waiver allows foreign nationals who wish to return to the U.S. prior to meeting the required amount of time outside the U.S. to file an application for permission to reapply pursuant to INA Section 212(a)(A)((iii).

In Matter of Tin, 14 I & N 371 (1973), and Matter of Lee, 17 I & N Dec. 275 (1978), the Board of Immigration Appeals established the standards to be considered in adjudicating applications for permission to reapply.

In Matter of Tin, the BIA stated that in determining whether consent to reapply for admission should be granted, all pertinent circumstances relating to the application should be considered including: 1. the basis for deportation; 2. recency of deportation; 3. applicant’s length of residence in the United States; 4. the applicant’s good moral character; 5. the applicant’s respect for law and order; 6. evidence of reformation and rehabilitation; 7. The applicant’s family responsibilities; 8. Any inadmissibility to the United States under other sections of law; 9. hardship involving the applicant and others; 10. the need for the applicant’s services in the United States; and 11. whether the applicant has an approved immigrant or nonimmigrant visa petition.

In Matter of Lee, the BIA stated that INA 212(a)(9)(A)(iii) was intended to be remedial rather than punitive, explaining that the factor of “recency of deportation” can only be considered when there is a finding of poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience.

The USCIS exercises broad discretion when adjudicating I-212 waiver requests for permission to reapply.  The following may be considered positive factors in granting permission for early re-entry:

  • Basis for the deportation
  • Recency of deportation
  • Foreign national’s length of residence in the U.S., and status held during that presence
  • Family responsibilities and ties to the U.S.
  • Foreign natonal’s evidence of good moral character
  • Foreign national’s respect for law and order
  • Evidence of reformation and rehabilitation
  • Hardship involving the applicant and others
  • Need for the applicant’s services in the U.S.
  • Whether the applicant has an approved immigrant or non-immigrant visa petition
  • Eligibility for a waiver of other inadmissibility grounds
  • Absence of significant undesirable or negative factors

Negative factors may include:

  • Evidence of moral depravity, including criminal tendencies reflected by an ongoing unlawful activity or continuing police record
  • Repeated violations of  immigration laws, willful disregard of other laws
  • Likelihood of becoming a public charge
  • Poor physical or mental condition (however, a need for treatment in the United States for such a condition would be a favorable factor)
  • Absence of close family ties or hardships
  • Spurious marriage to a U.S. citizen for purpose of gaining an immigration benefit
  • Unauthorized employment in the United States
  • Lack of skill for which labor certification could  be issued
  • Serious violation of immigration laws, which evidence a callous attitude without hint of reformation of character
  • Existence of other grounds of inadmissibility into the U.S.

For practical purposes, when the I-601 “Extreme Hardship” waiver is filed together with the I-212 Waiver, preparing a winning I-601 waiver application (by demonstrating extreme hardship to the qualifying relative and presenting a situation that warrants favorable discretion by the adjudicating officer) allows the applicant to also meet the standard for approval of the I-212 waiver.

In other words, if your I-601 waiver is approved, then the I-212 waiver will generally be approved as well.

”Extreme hardship,” for purposes of the I-601 Waiver, has a special meaning under U.S. immigration law.  The factors considered relevant in determining extreme hardship include:

  • Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.
  • Financial considerations: future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children; cost of caring for family members (i.e., elderly and infirm parents).
  • Education: loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time in grade; availability of special requirements, such as training programs or internships in specific fields.
  • Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
  • Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
  • Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

Spouses must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.

We drafted a 20+ page waiver memorandum outlining the relevant case law favorable to my client’s situation.  It also discussed in detail the extreme hardships the U.S. citizen husband is presently suffering from, and proved how they would worsen in the event of continued separation from his beloved wife.  We also highlighted a variety persuasive factors that I believed warranted an exercise of favorable discretion on the part of the USCIS.

Some of the favorable factors in this case includes the following:

  • The U.S. citizen husband is a veteran of the U.S. Armed Forces who served his country honorably.  USCIS has issued guidance giving preference to approval of I-601 waivers when the qualifying relative is a member of the U.S. Armed Forces or a veteran.
  • The U.S. citizen husband’s elderly mother has been diagnosed with non-Hodgkin’s lymphoma, for which she is receiving medical treatment.  We demonstrated that it is imperative for the U.S. citizen husband to remain inside the U.S. to give support and regular assistance to his mother during this difficult period.
  • The U.S. citizen husband suffers from psychological ailments, including anxiety, lack of sleep, lack of energy, general fatigue and other assorted ache and pain.  We showed that allowing this couple to reunite will provide the U.S. citizen husband the psychological, emotional, and fiscal stability needed to deal with the stressors in his life and sustain gainful employment. It will also allow him to continue to support his ailing mother, who suffers from cancer, and who faces an uncertain future.  We proved through a variety of objective evidence that the symptoms of these disorders have been greatly exacerbated by the mere possibility of long-term separation from his wife; and the inevitable, disastrous consequences that would result should such a separation continue.
  • The U.S. citizen husband is already experiencing extreme hardship.  We proved that being forced to provide subsistence payments to his family in Columbia places significant financial stress on the U.S. citizen husband.
  • The U.S. citizen husband cannot risk immigrating to Columbia to be with his spouse because of the personal risks such a move would create for him (most especially as ex-U.S. military), his inability to obtain employment in Columbia, and the wholly inadequate living, medical, and economic conditions to which he would be exposed.

Due to our efforts, our client was approved for both the I-212 waiver and I-601 waiver USCIS.  This family can now lawfully reside together inside the United States.