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 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 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-601 Waiver for Prostitution Approved for Wife of U.S. Citizen from Thailand

I-601 Waiver for Prostitution Approved for Wife for U.S. Citizen from Thailand

Our office received approval of the I-601 Waiver (Application for Waiver of Grounds of Inadmissibility) for the Thai spouse of a U.S. citizen who was found inadmissible to the United States after being charged with engaging in prostitution due to her previous employment as a masseuse at a massage spa in Thailand.

The U.S. embassy in Bangkok, Thailand is well-known for engaging in rigorous consular interviews – conducting both procedural (checking a computerized database) and investigative checks on its applicants, and vigorously charging applicants with inadmissibility if they suspect certain types of conduct.

The U.S. citizen spouse contacted my office after his Thai spouse was charged with having engaged in prostitution in the past during her immigrant visa interview and deemed inadmissible to the United States pursuant to INA Section 212(a)(2)(D).

Section 212(a)(2)(D) of the Immigration and Nationality Act states:

(D) Prostitution and commercialized vice.-Any alien who-

(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,

(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10- year period) received, in whole or in part, the proceeds of prostitution, or

(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution, is inadmissible.

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))

The Attorney General may waive the grounds of inadmissibility under section 212(a)(2)(D)(i)-(ii) of the Act with regard to prostitution if the alien establishes to the satisfaction of the Attorney General that the alien’s admission would not be contrary to the national welfare, safety, or security of the U.S., and that the alien has been rehabilitated. INA 212(h)(1)(A).

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 demonstrates that this removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.

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

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

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

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

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

We prepared a comprehensive 34-page legal brief going over how the facts and circumstances of my clients’ situation met the legal standards used to define “extreme hardship”; thoroughly demonstrated “rehabilitation” of the Thai spouse; and showed that the Thai spouse’s admission would “not be contrary to the national welfare, safety, or security of the U.S.”  

As with all of our waiver cases, we went above and beyond the work that many law firms would engage in by demonstrating that our client met the legal standard of BOTH INA 212(a)(2)(D)(i)-(ii) and INA 212(h)(1)(B).  This brief was accompanied by supporting exhibits that provided credible proof of every vital and relevant statement made in the legal brief.

The positive factors in this case included:

  • Psychological disorders suffered by the U.S. citizen spouse which substantially impairs his ability to function in everyday life.  The psychological disorders are being being aggravated by the prolonged separation of the couple and the unique circumstances of their individual and collective lives.
  • Significant health issues suffered by the U.S. citizen spouse, including a pulmonary embolism in the past, which now requires regular medical check-ups and the taking of medication for the rest of his life
  • A serious medical condition suffered by the Thai spouse, which requires extremely complicated and high-risk surgery to correct.  Such  surgery is very difficult to obtain from a qualified surgeon in Thailand and complications from the surgery could include nerve damage and infertility.  This situation adds to the mental distress being experienced by the U.S. husband.
  • The U.S. citizen husband is financially responsible for three households: his own, his wife’s, and that of his wife’s parents.  Becoming incapacitated due to his various ailments would lead to financial collapse for the U.S. citizen husband as well as that of his extended family.
  • The U.S. citizen husband has served multiple long-term tours abroad in a civilian position to support the U.S. military in its “War on Terror.”  He has only recently re-united with his family in the U.S. and cannot bear the thought of leaving the U.S. once again.  He also does not speak Thai and would have no means for supporting himself financially in Thailand.
  • Country conditions of Thailand would make it difficult for the U.S. citizen husband to receive the standard of medical care he now receives in the U.S.  The current state of Thai medical care also makes it very difficult for his wife to receive the type of specialized surgery she needs for her serious condition.
  • Evidence of rehabilitation of the Thai spouse includes 14 affidavits of good moral character from members of her family; a Buddhist monk; a local government official; prominent members of the business community; and many others who can attest to her honesty, dedication to family, and character.  It also includes her complete honesty during her consular interview; her history of having studied massage therapy (including evidence of schooling in the field); and the reason for her employment at the massage parlor (which was to financially support her impoverished parents).

Although extreme hardship is only considered when suffered by the U.S. citizen or lawful permanent resident parent, spouse, son, or daughter of the foreign applicant under INA 212(h)(1)(B), it is my experience that extreme hardship suffered by any close relative of the qualifying relative should be thoroughly discussed.  In this case, the extreme hardships to be suffered by the U.S. citizen’s spouse herself (the waiver applicant), would in turn impact the U.S. citizen and aggravate all of the conditions he presently suffers from.  This was carefully outlined in detail in our memorandum.  This connection can be made when the waiver applicant plays an integral role in the overall well-being of the U.S. citizen and is needed to assume a vital, day-to-day role in his physical, emotional, and psychological care and oversight.

As a result of the I-601 “prostitution waiver” expeditiously prepared and submitted by my office, the I-601 waiver application was approved by the USCIS.  The couple now happily reside together inside the U.S.

Exercise of Discretion by the USCIS Officer on Immigrant Waivers

Exercise of Discretion by the USCIS Officer on Immigrant Waivers

If an immigrant waiver applicant meets all other statutory and regulatory requirements of a waiver, the USCIS officer must determine whether to approve the waiver as a matter of discretion. 

If the applicant does not meet another statutory requirement of the waiver, USCIS denies the waiver and a discretionary analysis is not necessary.

However, an officer may still include a discretionary analysis if the applicant’s conduct is so egregious that a discretionary denial would be warranted even if the applicant had met the other statutory and regulatory requirements.  Adding a discretionary analysis to a denial is considered useful if an appellate body on review disagrees with the officer’s conclusion that the applicant failed to meet the statutory requisites for the waiver.

According to the USCIS Policy Manual up-to-date as of August 23, 2017, meeting the other statutory and regulatory requirements of an immigrant waiver alone does not entitle the applicant to relief. See Reyes-Cornejo v. Holder, 734 F.3d 636 (7th Cir. 2013). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999). See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

The discretionary determination is the final step in the adjudication of a waiver application. The applicant bears the burden of proving that he or she merits a favorable exercise of discretion. See Matter of De Lucia, 11 I&N Dec. 565 (BIA 1966). See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957).

We consider the exercise of discretion by the adjudicating USCIS officer to be an essential part of any waiver approval that my office has obtained on behalf of our clients for the past 15 years.  Consequently, I always make sure to include every favorable factor from our client’s lives and backgrounds, that in our experience, have proven significant and pivotal in the approval of immigrant (and non-immigrant waivers) for our clients.

The legal basis for the exercise of discretion in immigrant waiver applications commonly filed by my office is highlighted below:

  1. The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in 8 CFR 212.7(e) and warrant a favorable exercise of discretion.
  2. 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:
    1. has a parent, spouse, son, or daughter who is a U.S. citizen or lawful permanent resident of the United States; and
    2. the parent, spouse, son, or daughter would suffer “extreme hardship” on account of the alien’s ineligibility to immigrate
    3. 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.
  3.  INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) authorizes the Secretary to waive the 3- and 10-year unlawful presence bars for individuals seeking admission to the United States as immigrants if they can show that the refusal of admission would result in extreme hardship to a qualifying U.S. citizen or LPR spouse or parent, and provided that the applicant warrants a favorable exercise of discretion. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

The below details some of the discretionary factors relevant to the waiver adjudication as set for by the USCIS Policy Manual:

Non-Exhaustive List of Factors that May Be Relevant in the Discretionary Analysis

CategoryFavorable FactorsUnfavorable Factors
Waiver Eligibility• Meeting certain other statutory requirements of the waiver, including a finding of extreme hardship to a qualifying family member, if applicable. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996) (relating to a criminal waiver under INA 212(h)(1)(B)). See Matter of Marin, 16 I&N Dec. 581 (BIA 1978) (relating to an INA 212(c) waiver). See Matter of Tijam, 22 I&N Dec. 408 (BIA 1998) (relating to a fraud or misrepresentation finding (INA 212(a)(6)(C)(i)) and the discretionary waiver under former INA 241(a)(1)(H) [renumbered as INA 237(a)(1)(H) by IIRIRA]).

• Eligibility for waiver of other inadmissibility grounds.
Not applicable – Not meeting the statutory requirements of the waiver results in a waiver denial. A discretionary analysis is not necessary.
Family & Community Ties• Family ties to the United States and the closeness of the underlying relationships.

• Hardship to the applicant or to non-qualifying lawful permanent residents (LPRs) or U.S. citizen relatives or employers.

• Length of lawful residence in the United States and status held during that residence, particularly where the applicant began residency at a young age.

• Significant health concerns that affect the qualifying relative.

• Difficulties the qualifying relative would be likely to face if the qualifying relative moves abroad with the applicant due to country conditions, inability to adapt, restrictions on residence, or other factors that may be claimed.

• Honorable service in the U.S. armed forces or other evidence of value and service to the community.

• Property or business ties in the United States.
Absence of community ties.
Criminal History & Moral Character (or both)• Respect for law and order, and good moral character, which may be evidenced by affidavits from family, friends, and responsible community representatives.

• Reformation of character and rehabilitation.

• Community service beyond any imposed by the courts.

• Considerable passage of time since deportation or removal.
• Moral depravity or criminal tendencies reflected by an ongoing or continuing criminal record, particularly the nature, scope, seriousness, and recent occurrence of criminal activity.
 
• Repeated or serious violations of immigration laws, which evidence a disregard for U.S. law.

• Lack of reformation of character or rehabilitation.

• Previous instances of fraud or false testimony in dealings with USCIS or any government agency.

• Marriage to a U.S. citizen or LPR for the primary purpose of circumventing immigration laws.

• Nature and underlying circumstances of the inadmissibility ground at issue, and the seriousness of the violation
Public safety or national security concerns
OtherAbsence of significant undesirable or negative factors.Other indicators of an applicant's bad character and undesirability as a permanent resident of this country.

Discretionary Factors

The officer must weigh the social and humanitarian considerations against the adverse factors present in the applicant’s case.  See Matter of De Lucia, 11 I&N Dec. 565 (BIA 1966). See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957). The approval of a waiver as a matter of discretion depends on whether the favorable factors in the applicant’s case outweigh the unfavorable ones. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

Discretionary Determination

When making a discretionary determination, the officer should review the entire record and give the appropriate weight to each adverse and favorable factor.  Once the officer has weighed each factor, the officer should consider all of the factors cumulatively to determine whether the favorable factors outweigh the unfavorable ones. If the officer determines that the positive factors outweigh the negative factors, then the applicant merits a favorable exercise of discretion.

Example

A lengthy and stable marriage is generally a favorable factor in the discretionary analysis. On the other hand, the weight given to any possible hardship to the spouse that may occur upon separation may be diminished if the parties married after the commencement of removal proceedings with knowledge of an impending removal.  In particular, if a finding of extreme hardship is a statutory eligibility requirement, the finding of extreme hardship permits, but does not require, a favorable exercise of discretion. Once extreme hardship is found, extreme hardship becomes a factor that weighs in favor of granting relief as a matter of discretion.

Example

In general, when reviewing an applicant’s employment history, an officer may consider the type, length, and stability of the employment. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996). See Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992).

Example

In general, when reviewing an applicant’s history of physical presence in the United States, the officer may favorably consider residence of long duration in this country, as well as residence in the United States while the applicant was of young age. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

Example

When looking at the applicant’s presence in the United States, the officer should evaluate the nature of the presence. For example, a period of residency during which the applicant was imprisoned may diminish the significance of that period of residency. See Diaz-Resendez v. INS, 960 F.2d 493 (5th Cir. 1992).

Cases Involving Violent or Dangerous Crimes

If a foreign national is inadmissible on criminal grounds involving a violent or dangerous crime, an officer may not exercise favorable discretion unless the applicant has established, in addition to the other statutory and regulatory requirements of the waiver that:

  • The case involves extraordinary circumstances; or
  • The denial would result in exceptional and extremely unusual hardship. See Douglas v. INS, 28 F.3d 241 (2nd Cir. 1994).

Extraordinary circumstances involve considerations such as national security or foreign policy interests.  Exceptional and extremely unusual hardship is substantially beyond the ordinary hardship that would be expected as a result of denial of admission, but it does not need to be so severe as to be considered unconscionable. See INA 212(h). See 8 CFR 212.7(d). See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (relating to a waiver of inadmissibility granted in connection with INA 209(c), refugee or asylee adjustment of status).  Depending on the gravity of the underlying criminal offense, a showing of extraordinary circumstances may still be insufficient to warrant a favorable exercise of discretion. See Matter of Monreal, 23 I&N Dec. 56 (BIA 2001).

I-601 Waiver Pursuant to INA 212(h) Approved for South Korean Applicant

I-601 Waiver Pursuant to INA 212(h) Approved for South Korean Applicant

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 misappropriating monies from the bank account of another individual in 1998, for which offense she was fined the equivalent of USD$2000, which fine she has paid. That conviction triggered the lifetime inadmissibility bar pursuant to INA 212(a)(2)(A)(i)(I) “Crimes involving moral turpitude.”

The U.S. citizen sibling petitioner contacted me after her sister was denied admission to the U.S. following her consular interview at the U.S. embassy in Seoul, South Korea.  A comprehensive waiver package was subsequently prepared by our office based on the fact that more than 15 years have passed since she was convicted of criminal offense in her home country of South Korea; the clear evidence that her admission would not be contrary to the national welfare, safety or security of the United States; and that she 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 her situation met the legal standards of INA 212(h)(1)(A).

I thoroughly demonstrated that my client was rehabilitated and her admission not contrary to the national welfare, safety, or security of the U.S., based upon her long-history as a successful small business owner; her membership and participation in various church and charitable programs; as well as her selfless dedication to the education of her children, which played an integral role in allowing her son to attend medical school after the death of his father.

I showed that following her conviction and later, after the death of her husband, she reached a profound “turning point” in her life.  She was baptized into the Christian faith and became a devout and ardent member of her church.  She committed herself to a number of charitable activities while also working tirelessly to support her children and their education.   Her conduct as well as a myriad of affidavits by friends, colleagues, and family proved that she posed absolutely no risk to the safety or welfare of the U.S., and in fact, would contribute to it 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.

An extensive table of exhibits also listed a variety of evidence in support of a showing of good moral character and rehabilitation.

As a result of our efforts, our client was approved for the 601 waiver and subsequently, received her lawful permanent residence to join her family in the United States.

Requests for Evidence (RFEs) Commonly Issued by USCIS on Waiver Applications

Requests for Evidence (RFEs) Commonly Issued by USCIS on Waiver Applications

I am often contacted by applicants who have received a Request for Evidence from the USCIS and are understandably concerned and unsure how to respond.

While some Requests for Evidence are procedural and relatively simple to handle (e.g. a request for a copy of a marriage certificate, birth certificate, etc.), others are more serious and accompanied by a Notice of Intent to Deny as well.  This typically occurs because the adjudicating USCIS officer believes that the applicant failed to meet the legal threshold of the waiver being applied for.

Below are Requests for Evidence commonly issued by the USCIS to waiver applicants.  Our office has successfully responded to such requests from the USCIS on behalf of our clients for the past 12+ years.  Should such a request be issued, I recommend contacting an experienced I-601 and I-212 waiver attorney and get guidance on how to proceed.  It is extremely important that such requests be carefully and fully complied with to ensure successful approval of your waiver application.

100 RFE 601- Waiver Requirements for Unlawful Presence – INA 212(a)(9)(B)(v)
You have been found inadmissible to the United States under section 212(a)(9)(B) of the Immigration and Nationality Act (INA) because you had previously been unlawfully present in the United States in excess of either 180 days, or for one year or more.

To be eligible for a waiver under section 212(a)(9)(B)(v) of the INA, you must show that:

• You have a U.S. citizen or lawful permanent resident spouse or parent, or a U.S. citizen fiance( e) who petitioned for your K visa, who would experience extreme hardship if you were denied admission, and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

101 RFE 601- Waiver Requirements for Criminal & Related Grounds – INA 212(h)
You have been found inadmissible to the United States under section 212(a)(2) of the Immigration and Nationality Act (INA) because of your involvement in: [ISO inserts applicable basis for inadmissibility finding]

• A crime involving moral turpitude (other than purely political offense).
• A controlled substance violation according to the laws and regulations of any country related to a single offense of simple possession of 30 grams or less of marijuana.
• Two or more convictions, other than purely political ones, for which you received sentences of confinement amounting to 5 years or more.
• Prostitution, including having procured others for prostitution or having received the proceeds of prostitution.
• Unlawful commercialized vice whether or not related to prostitution.
• Serious criminal activity but you asserted immunity from prosecution.

This office may approve a waiver of the inadmissibility ground(s) under section 212(h) of the INA, if you can show that either:

You are only inadmissible for participation in prostitution; and

• You have been rehabilitated; and
• Your admission to the United States will not be contrary to the national welfare, safety, or security of the United States; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

The criminal activities for which you are inadmissible occurred more than 15 years ago; and

• You have been rehabilitated; and
• Your admission to the United States will not be contrary to the national welfare, safety, or security of the United States;
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

You have a qualifying relative who is a U.S. citizen or lawful permanent resident of the United States; and

• Your qualifying relative would suffer extreme hardship on account of your ineligibility to immigrate; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

You are the fiance( e) of a K visa petitioner; and

• The K visa petitioner would suffer extreme hardship on account of your ineligibility to immigrate; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

You are a VA WA self-petitioner

In addition to the above requirements, if an applicant has been convicted of a violent or dangerous crime, USCIS will not waive the inadmissibility as a matter of discretion unless the individual can show an extraordinary circumstance, such as:

  • One involving national security or policy considerations; or
  • If the denial of your admission would result in exceptional and extremely unusual hardship.

102 RFE 601 – Waiver Requirements for Fraud/Misrepresentation – INA 212(i)
You have been found inadmissible to the United States under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA) because you sought to procure an immigration benefit by fraud or willfully misrepresenting a material fact.

To be eligible for a waiver under section 212(i) of the INA, you must show that:

• You have a U.S. citizen or lawful permanent resident spouse or parent, or a U.S. citizen fiance( e) who petitioned for your K visa, who would experience extreme hardship if you were denied admission, or
• You are a VA WA self-petitioner, and that you or your U.S. citizen, lawful permanent resident, or qualified parent or child would experience extreme hardship if you were denied admission; and ‘
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

103 RFE 601 – Waiver Requirements for Communicable Disease – INA 212(g)(1)
You have been found inadmissible to the United States under section 212( a)(1)(A)(i) of the Immigration and Nationality Act (INA) because you have a medical condition that will not allow you to enter or remain in the United States. USCIS may waive this inadmissibility ground under section 212(g)(1) of the INA as a matter of discretion after consulting with the Centers for Disease Control and Prevention (CDC).

To be eligible for this waiver, you must show that you are one of the following:

  • The spouse, parent, unmarried son or daughter, or minor unmarried lawfully adopted child of
    • A U.S. citizen; or
    • An alien lawfully admitted for permanent residence; or
    • An alien who has been issued an immigrant visa
  • A self petitioner under the Violence Against Women Act (VA WA)
  • The fiance( e) of a U.S. citizen or the fiance(e)’s child.

104 RFE 601 – Waiver Requirements for Missing Vaccinations – INA 212(g)(2)(C)
You have been found inadmissible to the United States under section 212(a)(1)(A)(2) of the Immigration and Nationality Act (INA) because you have not received the vaccines required for entry into the United States. USCIS may waive this inadmissibility ground under section 212(g)(2)(C) of the INA as a matter of discretion if you can establish that:

  • You are opposing vaccinations in any form (that is, you are not just opposed to one vaccine but that you oppose the practice of vaccination in general); and
  • Your objection is based on religious beliefs or your moral convictions; and
  • Your belief or conviction is sincere (that you actually live according to your belief and conviction, and that you do not just have the belief or conviction because you do not want to be vaccinated).

105VWR – Waiver Requirements for Physical or Mental Disorder- INA 212(g)(3) 

You have been found inadmissible to the United States under section 212(a)(1)(A)(iii) of the Immigration and Nationality Act (INA) because you were determined to have a mental or physical disorder that poses or may pose a threat to the property, safety, or welfare of you or others; or because you have a history of a physical or mental disorder and a history of behavior that poses or may pose a threat to the property, safety, or welfare of you or others because the disorder is likely to reoccur.

After consultation with the Centers for Disease Control and Prevention (CDC), USCIS may waive this inadmissibility ground under section 212(g)(3) of the INA as a matter of discretion to ensure that you have arranged for suitable health care in the United States so that your condition will no longer pose a threat to you or others.

106 RFE 601- Waiver Requirements for Membership in a Totalitarian Party – INA 212(a)(3)(D)(iv)
You have been found inadmissible to the United States under section 212(a)(3)(D) of the Immigration and Nationality Act (INA) because you had been a member of the Communist Party or another totalitarian party (or subdivision or affiliate thereof).

To be eligible for a waiver under section 212(a)(3)(D)(iv) of the INA, you must show that:

  • You are:
    • A parent, spouse, son, daughter, brother, or sister of a citizen of the United States, or
    • A spouse, son, or daughter of a lawful permanent resident of the United States; and
  • Your application should be granted to serve humanitarian purposes, to assure family unity, or because it is otherwise in the public interest; and
  • You are not a threat to the security of the United States; and
  • Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

107 RFE 601 – Waiver Requirements for Smuggling-INA 212(d)(11)
You have been found inadmissible to the United States under section 212(a)(6)(E) of the Immigration and Nationality Act (INA) because you had engaged in alien smuggling.

To be eligible for a waiver under section 212(d)(11) of the INA, you must show that:

  • You are:
    • An alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of removal, and are otherwise admissible to the United States as a returning resident under section 211(b) of the INA, or
    • Seeking admission or adjustment of status as an immediate relative under section INA 201(b)(2)(A) or as an immigrant under section 203(a) of the INA (first, second, and third family-based preference, but not fourth preference) or as the fiance(e) (or child of the fiance(e))’of a U.S citizen; and
    • You have encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was your spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of the law; and
    • Your application should be granted to serve humanitarian purposes, to assure family unity, or because it is otherwise in the public interest; and

Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

108 RFE 601- Waiver Requirements for Subject of Civil Penalty- INA 212(d)(12)
You have been found inadmissible to the United States under section 212(a)(6)(F) of the Immigration and Nationality Act (INA) because you have been the subject of a final order for violation of section 274C of the INA (Document Fraud).

To be eligible for a waiver under section 212(d)(12) of the INA, you must show that:

  • You are
    • An alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation or removal and who is otherwise admissible to the United States as a returning resident under section 211(b) of the INA, or
    • Seeking admission or adjustment of status as an immediate relative under section 201(b)(2)(A) of the INA or as an immigrant under section 203(a) of the INA (first, second, and third family-based preference, but not fourth preference) or as the fiance(e) (or child of the fiance(e)) of a U.S. citizen; and
    • This is the only civil money penalty order against you under INA 274C; and
    • You committed the offense only to assist, aid, or support your spouse or child (and not another individual); and
    • Your application should be granted to serve humanitarian purposes, to assure family unity, or because it is otherwise in the public interest; and

Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

109 RFE 601 – Applicant Previously Removed – INA 212(a)(9)(A)(iii)
The record indicates that in addition to the inadmissibility ground for which you have filed Form I-601, you are also inadmissible under section 212(a)(9)(A) of the Immigration and Nationality Act (INA) due to a previous removal or deportation.

An individual who is inadmissible under section 212(a)(9)(A) of the INA may file an Application for Permission to Reapply for Admission to the United States After Deportation or Removal (Form I-212).

Your application is missing evidence that you have filed Form I-212 with USCIS. Please submit a USCIS receipt notice for Form I-212 as evidence that you have filed the required application.

110 RFE 601-No Evidence of Visa Refusal or Pending I-485/I-821
An individual who is outside the United States may file Form I-601 if he or she has been found inadmissible by a U.S. Consular Officer after having applied for an immigrant visa or a nonimmigrant K or V visa.

An individual who is inside the United States may file Form I-601 along with an Application to Register Permanent Residence or Adjust Status (Form I-485) or an Application for Temporary Protected Status (Form I-821 ), or while the Form I-485 or Form I-821 is pending.

Your application is missing evidence that your waiver application is based on either:

  • An immigrant visa application (or nonimmigrant K or V visa application) filed with the Department of State (DOS), for which you were found ineligible due to an inadmissibility ground; or
  • A pending Form I-485 or Form I-821.

Please provide the following evidence to support your application:

  • If you are outside the United States, submit evidence that you have a pending immigrant visa application (or nonimmigrant K or V visa application), such as a copy of a DOS notice identifying your Consular Case Number.
  • If you are inside the United States and have a pending Form I-485 or Form I-821, submit evidence that you have a pending application, such as a copy of your USCIS receipt notice (Form I-797).

[Read more…]

Client Approval: I-601 Waiver for Prostitution Approved for K-1 Fiancée at U.S. Embassy Bangkok

Client Approval: I-601 Waiver for Prostitution Approved for K-1 Fiancée at U.S. Embassy Bangkok

Our office received approval of the I-601 Waiver (Application for Waiver of Grounds of Inadmissibility) for the Thai fiancée of a U.S. citizen that we expeditiously prepared and submitted on behalf of the couple.

The Thai fiancée was found inadmissible to the United States after being charged with engaging in prostitution during her K-1 fiancée visa consular interview (despite not having any such criminal conviction on her formal record).  The U.S. embassy in Bangkok, Thailand is well-known for engaging in rigorous consular interviews – conducting both procedural (checking a computerized database) and investigative checks on its applicants, and vigorously charging applicants with inadmissibility if they suspect certain types of conduct.

The U.S. citizen fiancée contacted my office after his Thai fiancée was charged with having engaged in prostitution in the past and deemed inadmissible to the United States pursuant to INA Section 212(a)(2)(D).

Section 212(a)(2)(D) of the Immigration and Nationality Act states:

(D) Prostitution and commercialized vice.-Any alien who-

(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,

(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10- year period) received, in whole or in part, the proceeds of prostitution, or

(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution, is inadmissible.

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))

The Attorney General may waive the grounds of inadmissibility under section 212(a)(2)(D)(i)-(ii) of the Act with regard to prostitution if the alien establishes to the satisfaction of the Attorney General that the alien’s admission would not be contrary to the national welfare, safety, or security of the U.S., and that the alien has been rehabilitated. INA 212(h)(1)(A).

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 demonstrates that this removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.

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

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

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

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

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

In support of my client’s I-601 waiver, I prepared a comprehensive legal brief going over how the facts and circumstances of my clients’ situation met the legal standards used to define “extreme hardship”; “rehabilitation” of the K-1 fiancée; and that the K-1 fianceé admission would “not be contrary to the national welfare, safety, or security of the U.S.”  

In other words, as with all of our waiver cases, we went above and beyond the work that many law firms would engage in by demonstrating that our client met the legal standard of BOTH INA 212(a)(2)(D)(i)-(ii) and INA 212(h)(1)(B).  This brief was accompanied by supporting exhibits that provided credible proof of every vital and relevant statement made in the legal brief.

The positive factors in this case included:

  • Psychological disorders suffered by the U.S. citizen fiancé which includes Dysthymic Disorder and Bipolar Depression, both of which were being aggravated by the prolonged separation of the couple.
  • Various physical ailments and medical conditions suffered by the U.S. citizen fiancé.
  • Various physical ailments and medical conditions suffered by the U.S. citizen fiancé’s father, who relies upon  his son to oversee his medical care.  The U.S. citizen fiancé is also expected to take over day-to-day care of his father in the future when his father’s wife is no longer able to carry out these duties due to her own age and health status.
  • Various physical ailments and a serious psychological disorder suffered by the U.S. citizen fiancé’s brother.  The U.S. citizen fiancé coordinates the medical care of his brother and visits him at the facility where he is hospitalized several times a week.
  • The role of the U.S. citizen fiancé in caring for indigent and low-income individuals through his professional work.  We presented and discussed the irreparable negative impact on the local community should the U.S. citizen fiancé be forced to depart from the U.S. in order to live with his beloved fiancée abroad in Thailand.
  • Country conditions of Thailand including the inability of the U.S. citizen fiancé to obtain proper psychological care for himself in Thailand; his inability to speak the local language; and his inability to practice his specialized profession there due to language-based licensing requirements.
  • Evidence of rehabilitation of the Thai fiancée including a letter of good moral character from the local chief of police; her reformed life as a business owner who continues to supports her family financially; her complete honesty in admitting to her past misconduct during her K-1 visa consular interview; and the reason for her past misconduct (which was to financially support her impoverished mother and siblings).

Although extreme hardship is only considered when suffered by the U.S. citizen or lawful permanent resident parent, spouse, son, or daughter of the foreign applicant under INA 212(h)(1)(B), it is my experience that extreme hardship suffered by any close relative of the qualifying relative should be thoroughly discussed.  In this case, the extreme hardships to be suffered by the U.S. citizen’s father and U.S. brother in the event of my client’s departure from the U.S., would in turn impact the U.S. citizen himself and aggravate all of the conditions he presently suffers from.  This was carefully outlined in detail in our memorandum.  This connection can be made when the qualifying relative plays an integral role in taking care of the close relative, either in daily care, financial support, and/or medical oversight.

As a result of the I-601 “prostitution waiver expeditiously prepared and submitted by my office within 2 weeks of my client having first contacted our office, the I-601 waiver application was approved by the USCIS.  The couple now happily reside together inside the U.S.

I-601 Waiver Approved for U.S. Military Spouse Inadmissible due to Crimes Involving Moral Turpitude

I-601 Waiver Approved for U.S. Military Spouse Inadmissible due to Crimes Involving Moral Turpitude

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for the foreign wife of a member of the U.S. Armed Forces  who is subject to a life-time bar from being admitted to the United States for convictions of two separate crimes involving moral turpitude under INA Section 212(a)(2)(A)(i)(I).  The foreign wife was also convicted of driving under the influence of alcohol in a separate incident.

The U.S. citizen husband is an active member of the U.S. Armed Forces, works on base in the United States, and became separated from his foreign wife and U.S. citizen son after a finding of inadmissibility by the US embassy during his wife’s immigrant visa consular interview.

He contacted our office due to our 14+ year history of securing approval of I-601 and I-212 immigrant waivers in sensitive and critical situations such as this one.

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 immigrant waiver preparation process.

We always provide a comprehensive waiver worksheet containing a thorough array of questions for our clients to answer about their lives.  This allows us to “brainstorm” every relevant factor (such as medical, physical, psychological, financial, legal, or other hardships) 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 12+ 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 word.  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 favorable factors we highlighted in this I-601 Waiver case includes the following:

  • the U.S. citizen husband is a member of the U.S. Armed Forces who works on the maintenance and operation of sophisticated military vehicles.  In my experience, spouses and immediate relatives of members of the U.S. Armed Forces are generally given preference on their waiver applications.  However, it is still important to discuss the duties carried out by the member of the U.S. Armed Forces; their role in the defense of the interests of the United States; as well as how their ability to carry out their duties is impacted by the immigration-related consequences of separation (or re-location).
  • the U.S. citizen husband suffers from mood disorders and physical ailments that are documented to be worsening as a result of separation from his foreign wife and U.S. citizen son.  He is a victim of verbal and physical abuse from childhood, and carries the emotional scars from the prior abuse to this day.
  • the U.S. citizen husband helps to care for his elderly mother, who is also victim of past domestic abuse.  It would be emotionally traumatic to force him to choose between life with his family abroad at the cost of abandoning his mother who needs her son nearby.
  • the U.S. citizen husband is attempting to pay for two homes during this separation with his wife and son.  The expenses involved in doing this (combined with travel to a foreign country to visit his family) is outstripping his income and causing severe financial hardship.
  • the U.S. citizen husband does not know the native language of his wife’s country of origin, would face difficulty obtaining appropriate psychological treatment in English there, and would have to resign from the U.S. military to re-locate abroad to be with his family.  Being forced to resign from life-long service to the U.S. Armed Forces would aggravate his precious psychological state and worsen every aspect of his life.

Due to our efforts on behalf of this family, the I-601 Waiver application was approved and this family can soon reside together in the United States.  The U.S. citizen husband can also continue his service to the United States Armed Forces and play an integral role in safe-guarding the lives of his fellow servicemen.

Client Approval: I-601 Waiver Approved for Marijuana Possession Conviction

I-601 "Extreme Hardship" Waiver Approved for K-1 Fiancee Inadmissible due to Marijuana Possession Conviction Pursuant to INA 212(h)(1)(B).

Our law firm and our clients were pleased to receive two separate “extreme hardship” immigrant waiver approvals in one day.

The first waiver approval was for a I-601 Application for Waiver of Inadmissibility for the K-1 fiance of a U.S. citizen (from Japan) who was deemed inadmissible for life due to a conviction for simple possession of marijuana.

The second waiver approval received the same day was for a I-601A Application for Provisional Unlawful Presence Waiver for the Peruvian husband of a U.S. citizen spouse.

I-601 “Extreme Hardship” Waiver Approved for K-1 Fiance of U.S. Citizen Deemed Inadmissible for Conviction of Possession of Marijuana

INA 212(a)(2)(A)(i)(II) deems inadmissible those convicted of, or who admit to having committed, or who admit to committing acts which constitute the essential elements of a a violation or conspiracy to violate any law or regulation of a State, the United States or a foreign country relating to a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).

An immigrant waiver is available pursuant to INA 212(h)(1)(A) if

  • the alien’s admission to the United States would not be contrary to the national welfare, safety, or security of the United States;
  • alien has been rehabilitated;
  • the inadmissible act occurred more than 15 years before the visa application; and
  • the violation relates to a single offense of simple possession of 30 grams or less of marijuana.

Alternatively, an immigrant waiver is available pursuant to INA 212(h)(1)(B) if:

  • the alien is the spouse, parent, son, or daughter to a U.S. citizen or U.S. lawful permanent resident;
  • in the opinion of the Secretary of Homeland Security, refusing the waiver would result in extreme hardship to the qualifying U.S. citizen or U.S. lawful permanent resident relative; and
  • the violation relates to a single offense of simple possession of 30 grams or less of marijuana.

Furthermore, even if the applicant demonstrates that he merits a grant of discretion under the waiver, he must also establish that he meets the terms, conditions, and procedures of the regulations promulgated by the Attorney General. INA 212(h)(2).

The applicant is in our case has long-standing ties to the United States, where he met his U.S. citizen fiancee with whom he has been in a relationship for over 10 years.

Our client attended boarding school in the United States, graduated from a U.S. university, and has no other criminal conviction aside from a single conviction for possession of marijuana for which he completed all court-imposed requirements.

We first prepared, filed, and obtained approval of the I-129F Petition for Alien Fiancee.  As with all of our K-1 fiancee visa cases, we provided our clients with a detailed letter going over the process from start to finish.  We also provided a checklist of supporting documents to gather and provide to ensure approval of their K-1 fiancee visa petition.

We meticulously prepared every USCIS form needed, assembled the initial USCIS petition, and expeditiously submitted the petition to the USCIS on behalf of our clients.

As a result of our efforts up-front, we were able to obtain approval of the I-129F Petition for Alien Fiancee from the USCIS within 2 months of submission.

In the meantime, we prepared the I-601 Application for Waiver of Grounds of Inadmissibility pursuant to INA 212(h)(1)(B) by demonstrating extreme hardship to our client’s U.S. citizen fiancee and highlighting every favorable discretionary factor from our clients’ lives.

A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

Legal Analysis of Extreme Hardship

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

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

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

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

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

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

Our Client’s Extreme Hardship and Discretionary Factors 

The factors discussed and documented (with ample objective evidence) in the I-601 “Extreme Hardship” waiver prepared for our client includes:

  • the U.S. citizen fiancee suffering from Generalized Anxiety Disorder and Dysthymic Disorder, including being prescribed anti-anxiety medication to alleviate her symptoms;
  • the U.S. citizen fiancee suffering from medical issues that elevates her risk of cancer (requiring regular check-ups) and makes it medically advisable to start a family sooner rather than later;
  • the U.S. citizen fiancee’s foreseeable need to help financially support her U.S. citizen father, who will soon no longer able to work due to back pain
  • the U.S. citizen fiancee’s special duties as an educator of young children, and the impairment of these duties due to the psychological symptoms of her disorders (made worse by her continued separation from her fiance and related stress factors)
  • documented psychological and financial hardships suffered by the U.S. citizen fiancee (and her U.S. citizen mother) during her prior periods of residence in her fiance’s home country
  • the country conditions of her fiance’s home country including persistent gender inequality and the prohibitive cost of living in the capital city (and its resultant impact upon the financial health of the U.S. citizen fiancee and her ability to visit her immediate family in the U.S.)
  • the good moral character, rehabilitation, and other favorable discretionary factors in the life of the waiver applicant

As a result of our effort, our client was approved for the I-601 waiver and will be allowed to enter the U.S. to marry his beloved fiancee and begin a life together as a married couple.