I-601 Waiver for Fraud / Willful Misrepresentation Approved for Filipino Spouse

I-601 Waiver for Fraud / Willful Misrepresentation Approved for Filipino Spouse

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

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

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

Our client entered the U.S. lawfully on a valid non-immigrant visa, met his U.S. citizen spouse, and fell in love.  They have been married for 14 years. He returned to the Philippines to pursue his studies, planning to return to the U.S. after graduation.  He failed to disclose a prior marriage on his original visa application and was consequently charged with fraud / willful misrepresentation pursuant to INA Section 212(a)(6)(C)(i) and deemed inadmissible at his immigrant visa interview.

I was contacted by the clients to assist them in preparing and obtaining approval of the I-601 waiver after the finding of inadmissibility by the U.S. embassy in Manila, Philippines.

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

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

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

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

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id . at 566.

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

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

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

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

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

We prepared a comprehensive I-601 waiver application including a 29 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship.”

In particular, this includes the day-to-day care that the U.S. citizen spouse provides to her elderly mother, who suffers from diabetes, hypertension, and arthritis.  The U.S. citizen spouse lives with her elderly mother and they are each dependent on one another to oversee and manage the medical care they both vitally need.  Although the elderly mother of the U.S. citizen is not a qualifying relative per se under the INA Section 212(i), her well-being is intimately tied to that of the U.S. citizen spouse (who is the qualifying relative) and was thoroughly presented in our brief.

To provide more detail – should the U.S. citizen spouse be forced to re-locate to the Philippines to be with her husband, her elderly mother would lose her primary support giver.  This could be potentially life-threatening to her elderly mother given her fragile state; and such an event would traumatically affect the psychological and physical health of the U.S. citizen spouse which is already compromised.  Alternatively, should the U.S. citizen spouse have to remain in the U.S. without the support of her husband, her personal condition would likewise continue to deteriorate, affecting the welfare of two U.S. citizens who desperately need the presence and support of the waiver applicant in their lives.  In these types of scenarios, it is always important to present and prove the hardships of close relatives whose well-being are intimately tied to that of the qualifying relative; and demonstrate how both parties would be impacted by the immigration consequences of their situations.

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this couple now reside lawfully in the U.S. together once again after a separation of more than 9 years apart.

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).

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I-601 Extreme Hardship Waiver Approved for Canadian Client Charged with Fraud – Misrepresentation

I-601 Extreme Hardship Waiver Approved for Canadian Client Charged with Fraud - Misrepresentation

Our office recently obtained approval of the I-601 “Extreme Hardship” Waiver for a Canadian client found inadmissible for having attempted to procure an immigration benefit in the United States by fraud or willful misrepresentation of a material fact under INA Section 212(a)(6)(C)(i).

Our clients, a U.S. citizen wife and her Canadian husband, contacted me to prepare and submit the I-601 Application of Waiver of Grounds of Inadmissibility on their behalf, after the Canadian husband was denied for an immigrant visa at the US consulate in Canada.

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

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

Section 212(i) of the Act provides that:

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

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

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.

The favorable factors we presented and proved in this case to obtain approval of the I-601 Waiver includes the following:

  • The U.S. citizen wife suffered severe psychiatric decompensation shortly after their first failed attempt to have her spouse from Canada immigrate to the United States.  As a result of her hospitalization, her psychiatrist ordered a leave of absence from her work and career.
  • Loss of income from stopping work has forced the U.S. citizen wife to move in with her parents, who are elderly and infirm.  The U.S. citizen wife provides daily living assistance to both her father and mother.
  • The U.S. citizen wife has a son from a former relationship.  The son is suffering severe behavioral and emotional problems due to the close bond he has developed with his step-father and due to their on-going separation from one another.
  • The U.S. citizen wife shares joint-legal custody of her son with the biological father under a legal custody agreement.  Her son’s father, who exercises regular visitation rights, would never allow their son to be re-located to Canada.
  • The U.S. citizen wife is becoming increasingly depressed, as she lost her home, her transportation, her good credit rating, as well as her ability to work.  She requires her Canadian husband’s presence and support now more than never to survive in a rapidly deteriorating situation.
  • The Canadian husband has no criminal history, has worked productive in the financial services industry for more than two decades, and is a loving husband and father who has been an impeccable step-father and role model to his U.S. citizen step-son.

Some clients (and attorneys) mistakenly believe that extreme hardship can only established when the applicant comes from a “developing country.”  We routinely obtain I-601 Waivers for clients who come from countries such as Canada, the United Kingdom, Japan, and other more “developed” countries throughout the world.   We have particular expertise in demonstrating how the unique circumstances of our clients’ lives combine and interact to meet the threshold of “extreme hardship.”  Just as importantly, we always go beyond the legalese and present our clients as people that the adjudicating officer can relate to.

As a result, our client was approved for the I-601 Waiver and can now obtain permanent residence in the U.S. to reside together with his family.

I-212 Waiver and I-601 Extreme Hardship Waiver Approved for Chinese Client

I-212 Waiver and I-601 Extreme Hardship Waiver Approved for Chinese Client

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

Our client lawfully entered the U.S. on a B-1/B-2 visitor visa.  She overstayed in the U.S. due to a misunderstanding of U.S. immigration laws related to the I-539 Application to Extend Non-Immigrant Status.

She was subsequently removed from the U.S. while attempting re-entry into the U.S.

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

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

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

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

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

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

Our client was also charged with fraud or willful misrepresentation under INA Section 212(a)(6)(C) of the Immigration and Nationality Act.

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

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

INA Section 212(i) of the Act provides that:

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

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

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

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

We drafted a comprehensive 24+ page waiver memorandum outlining the relevant case law favorable to my client’s situation.  It also discussed in detail the extreme hardships the U.S. citizen husband is presently suffering from, and proved how they would worsen in the event of continued separation from his beloved wife.  We also highlighted a variety persuasive factors that I believed warranted an exercise of favorable discretion on the part of the USCIS.

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

  • The U.S. citizen husband shares physical and joint legal custody over his children with his former partner.  He would not be allowed to re-locate abroad with some of the children due to regular visitation rights exercised by the mother of the children.  His U.S. citizen children would be emotionally and psychologically devastated should their father be forced to leave the U.S. to be with his wife.  On the other hand, the U.S. citizen husband finds it increasingly difficult support his household alone given his deteriorating physical and psychological state.
  • The U.S. citizen husband’s monthly expenses continue to exceed his income.  He also does not speak, read, or write Mandarin Chinese and would have limited employment-prospects if he located abroad to China to be with his wife.
  • The U.S. citizen husband is postponing much-needed surgery for a medical conditions because he cannot afford to stop working and fall deeper into debt.  He also needs his wife by his side to help care for his children (and his elderly U.S. citizen mother) during his period of recuperation post-surgery.

Due to our efforts, our client was approved for both the I-212 waiver and I-601 waiver in less than 5 months after submission to the USCIS.  This family can now lawfully reside together inside the United States.

Client Approval: I-601 Fraud/Misrepresentation Waiver Approved for Nigerian Client

Client Approval: I-601 Fraud/Misreprsentation Waiver Approved for Nigerian Client

Our office recently received approval for the I-601 Waiver for a client found inadmissible to the United States due to fraud/misrepresentation.

The applicant misstated his marital status and the number of children he has in an immigration application, and was subsequently found inadmissible under INA Section 212(a)(6)(C) when he was forthcoming with the facts during his visa interview.

The married couple then contacted our law firm to prepare the I-601 Application for Waiver of Grounds of Inadmissibility on their behalf.

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

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

INA Section 212(i) of the Act provides that:

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

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

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

The favorable factors we presented to secure approval of the I-601 waiver in our client’s case includes the following:

  • The U.S. citizen spouse suffers from psychological and physical disorders, and has been diagnosed with obesity.  The psychological stress, anxiety, and depression caused by her immigration situation leads to a vicious cycle of overeating, which further destabilizes her psychological and physical health, and in turn leads to increased psychological stress and anxiety.
  • The U.S. citizen spouse lives with her mother and brother, both of whom suffer from serious illnesses and rely upon the U.S. citizen spouse for day-to-day help and financial support.
  • The U.S. citizen spouse is in severe debt, on the verge of bankruptcy, with monthly expenses that far outstrip her monthly income.
  • The foreign spouse (the waiver applicant) has no criminal record whatsoever except for the single charge of immigration fraud/misrepresentation, for which he was forthcoming and completely truthful during his visa interview
  • Country conditions of Nigeria (where the foreign spouse is originally from and resides in) show ethnic, sectarian, and tribal conflicts throughout the country; rampant crime with largely ineffective law enforcement; and travel through large swaths of the countryside limited for U.S. embassy employees due to killings, kidnappings, and violent crime.
  • U.S. Bureau of Consular Affairs describes Nigeria’s medical facilities as being in poor condition, with inadequately trained nursing staff, diagnostic and treatment equipment often poorly maintained, and many medicines unavailable.
  • The CIA World Factbook states that 62% of the Nigerian population lives in extreme poverty, living on less than $1 per hour

It is important that the attorney retained to prepare the I-601 waiver or the I-601A provisional waiver be familiar with the conditions of the country where the waiver applicant is from.  Our office has prepared I-601 “Extreme Hardship” Waivers and I-601A Provisional Waivers for clients who come from countries throughout the world (including but not limited to, Argentina, Australia, Austria, Brazil, China, Costa Rica, Colombia, Ecuador, France, Japan, Germany, India, Jamaica, Latvia, Mexico, Nigeria, Morocco, Pakistan, Romania, Russia, South Korea, Thailand,  Ukraine, United Kingdom, and Vietnam).

Consequently, we have in-depth experience not only researching and presenting a country’s conditions to prove extreme hardship, but precisely showing how our clients’ lives are and would be affected by these conditions.

As a result of our 25-page I-601 waiver application and numerous Exhibits attached to prove the statements made in our “extreme hardship” waiver, our client’s waiver application was approved.  This family in need may now reside together in the U.S. and work together to deal with this difficult period in their lives.

 

USCIS Draft Guidance on Adjudication of Extreme Hardship Waivers

USCIS Issues Draft Guidance on Adjudication of Extreme Hardship Waivers

Selected USCIS draft guidance concerning the adjudication of applications for those discretionary waivers of inadmissibility that require showings of “extreme hardship” to certain U.S. citizen or lawful permanent resident (LPR) family members of the applicant follows below.

Admissibility is generally a requirement for admission to the United States, adjustment of status, and other immigration benefits.  Several provisions of the Immigration and Nationality Act (INA), however, authorize discretionary waivers of particular inadmissibility grounds for those who demonstrate “extreme hardship” to specified U.S. citizen or LPR family members (referred to here as “qualifying relatives”).

Each of these provisions conditions a waiver on both a finding of extreme hardship to a qualifying relative and the more general favorable exercise of discretion.  All of these waiver applications are adjudicated by U.S. Citizenship and Immigration Services (and in some cases by the Department of Justice’s Executive Office for Immigration Review).

The various statutory provisions specify different sets of qualifying relatives and permit waivers of different inadmissibility grounds. They include:

  • INA 212(a)(9)(B)(v) – This provision can waive the three-year and ten-year inadmissibility bars for unlawful presence.  Eligible qualifying relatives include the applicant’s U.S. citizen or LPR spouse or parent.
  • INA 212(h)(1)(B) – This provision can waive inadmissibility for crimes involving moral turpitude, multiple criminal convictions, prostitution and commercialized vice, and certain serious criminal offenses for which the foreign national received immunity from prosecution.  It can also waive inadmissibility for controlled substance convictions, but only when the conviction was for a single offense of simple possession of 30 grams or less of marijuana. Eligible qualifying relatives include the applicant’s U.S. citizen or LPR spouse, parent, son, or daughter.
  • INA 212(i)(1) – This provision can waive inadmissibility for certain types of immigration fraud. Eligible qualifying relatives include the applicant’s U.S. citizen or LPR spouse or parent.

Common Consequences of Inadmissibility

Common consequences of an applicant’s refusal of admission, in and of themselves, do not warrant a finding of extreme hardship. The BIA has held that these common consequences include, but are not limited to, the following:

  • Family separation;
  • Economic detriment;
  • Difficulties of readjusting to life in the new country;
  • The quality and availability of educational opportunities abroad;
  • Inferior quality of medical services and facilities; and
  • Ability to pursue a chosen employment abroad.

Even though these common consequences alone would be an insufficient basis for a finding of extreme hardship, they are still factors that must be considered when aggregating the total hardships to the qualifying relative.

When combined with other factors that might also have been insufficient when taken alone, even these common consequences might cause the sum of the hardships to reach the “extreme hardship” standard.

For example, if a qualifying relative is gravely ill, elderly, or incapable of caring for himself or herself, the combination of that hardship and the common consequences of a refusal of the applicant’s admission might well cause extreme emotional or financial hardship for the qualifying relative.

Examples of Factors that Might Support Finding of Extreme Hardship

FactorsConsiderations
Family Ties and ImpactPresence of qualifying relative’s ties to family members living
in the United States, including age, status, and length of
residence of any children
Responsibility for the care of any family members in the
United States, in particular children and elderly or disabled
adults
Presence or absence of qualifying relative’s ties outside of the
United States, including to family members living abroad and
how close the qualifying relative is to these family members
Nature of relationship between the applicant and the
qualifying relative, including any facts about the particular
relationship that would either aggravate or lessen the
hardship resulting from separation
Qualifying relative’s age
Length of qualifying relative’s residence in the United States
Length of qualifying relative’s prior residence in the country of relocation, if any
Military service of qualifying relative, where the stresses and
other demands of such service aggravate the hardship
ordinarily resulting from family separation
Impact on the cognitive, social, or emotional well-being of a
qualifying relative who is left to replace the applicant as
caregiver for someone else, or impact on the qualifying
relative (for example, child or parent) for whom such care is
required
Social and Cultural ImpactLoss of access to the U.S. courts and the criminal justice
system, including the loss of opportunity to request criminal
investigations or prosecutions, initiate family law proceedings,
or obtain court orders regarding protection, child support,
maintenance, child custody, or visitation
Fear of persecution
Existence of laws and social practices in home country that
punish the qualifying relative because he or she has been in
the United States or is perceived to have Western values
Access or lack of access to social institutions and structures
(official and unofficial) for support, guidance, or protection
Social ostracism or stigma based on characteristics such as
gender, gender identity, sexual orientation, religion, race,
national origin, ethnicity, citizenship, age, political opinion, or
disability
Qualifying relative’s community ties in the United States and
in the country of relocation
Extent to which the qualifying relative has assimilated to U.S.
culture, including language, skills, and acculturation
Difficulty and expense of travel/communication to maintain
ties between qualifying relative and applicant, if the qualifying
relative does not relocate
Qualifying relative’s present inability to communicate in the
language of the country of relocation, taking into account the
time and difficulty that learning that language would entail
Availability and quality of educational opportunities for
qualifying relative (and children, if any) in country of
relocation
Economic ImpactFinancial impact of applicant’s departure on the qualifying
relative(s), including the applicant’s or the qualifying relative’s
ability to obtain employment in the country to which the
applicant would be returned and how that would impact the
qualifying relative
Qualifying relative’s need to be educated in a foreign
language or culture
Economic and financial loss due to the sale of a home or
business
Economic and financial loss due to termination of a
professional practice
Decline in the standard of living, including high levels of
unemployment, underemployment, and lack of economic
opportunity in country of nationality
Ability to recoup losses
Cost of extraordinary needs such as special education or
training for children
Cost of care for family members, including children and
elderly, sick, or disabled parents
Health Conditions
& Care
Significant health conditions and impact on the qualifying
relative, particularly when tied to unavailability of suitable
medical care in the country or countries to which the
applicant might relocate
Health conditions of the applicant’s qualifying relative and the
availability and quality of any required medical treatment in
the country to which the applicant would be returned,
including length and cost of treatment
Psychological impact on the qualifying relative due to either
separation from the applicant or departure from the United
States, including separation from other family members living
in the United States
Psychological impact on the qualifying relative due to the
suffering of the applicant, taking into account the nature of
the relationship and any other relevant factors
Country ConditionsConditions in the country or countries to which the applicant
would relocate, including civil unrest or generalized levels of
violence, ability of country to address crime/high rates of
murder/other violent crime, environmental catastrophes like
flooding or earthquakes, and other socio-economic or political
conditions that jeopardize safe repatriation or lead to
reasonable fear of physical harm
Temporary Protected Status (TPS) designation
Danger Pay for U.S. citizens stationed in the country of
nationality
Withdrawal of Peace Corps from the country of nationality for
security reasons
DOS Travel Warnings issued for the country of nationality

Special Circumstances that Strongly Suggest Extreme Hardship

The preceding list identifies factors that bear generally on whether a refusal of admission would result in extreme hardship to one or more qualifying relatives.

USCIS has also determined that the circumstances below would often weigh heavily in favor of finding extreme hardship. These sorts of special circumstances are beyond the qualifying relative’s control and ordinarily cause suffering or harm greater than the common consequences of separation or relocation.

An applicant who is relying on one or more of these special circumstances must submit sufficient evidence that such circumstances exist. As always, even when these or other special circumstances are present, the ultimate determination of extreme hardship is based on the totality of the circumstances in the individual case.

It must be emphasized that the special circumstances listed below are singled out only because they are especially likely to result in findings of extreme hardship. Many other hardships will also be extreme, even if they are very different from, or less severe than, those listed below. Further, even the factors discussed are not exclusive; they are merely examples of factors that can support findings of extreme hardship, depending on the totality of the evidence in the particular case. Other factors not not discussed could support a finding of extreme hardship, under a totality of the circumstances.

Eligibility for an immigration benefit ordinarily must exist at the time of filing and at the time of adjudication. Given the underlying purpose of considering special circumstances, a special circumstance does not need to exist at the time of filing the waiver request. As long as the qualifying relative was related to the applicant at the time of filing, a special circumstance arising after the filing of the waiver request also would often weigh heavily in favor of finding extreme hardship.

1. Qualifying Relative Previously Granted Asylum or Refugee Status

If a qualifying relative was previously granted asylum or refugee status in the United States from the country of relocation and the qualifying relative’s status has not been revoked, those factors would often weigh heavily in favor of a finding that relocation would result in extreme hardship.

As the family member of a foreign national who has been granted asylum or refugee status, the applicant might also face dangers similar to those that gave rise to the qualifying relative’s grant of asylum or refugee status. In such a case, the qualifying relative could suffer psychological trauma in knowing the potential for harm if the applicant returns to the country of nationality, particularly if the qualifying relative fears returning to that country even to visit the applicant, and could thereby suffer extreme hardship.

2. Qualifying Relative or Related Family Member’s Disability

If the Social Security Administration or other qualified U.S. Government agency made a formal disability determination for the qualifying relative, the qualifying relative’s spouse, or a member of the qualifying relative’s household for whom the qualifying relative is legally responsible, that factor would often weigh heavily in favor of a finding that relocation would result in extreme hardship.

Absent a formal disability determination, an applicant may provide other evidence that a qualifying relative or related family member suffers from a medical or physical condition that makes either travel to, or residence in, the relocation country detrimental to the qualifying relative or family member’s health or safety.

In cases where the qualifying relative or related family member requires the applicant’s assistance for care because of the medical or physical condition, that factor would often weigh heavily in favor of a finding that separation would result in extreme hardship to the qualifying relative.

3. Qualifying Relative’s Active Duty Military Service

If the qualifying relative (who might be a spouse or other qualifying relative) is on active duty with any branch of the U.S. Armed Forces, relocation will generally be unrealistic, because the qualifying relative ordinarily will not be at liberty to relocate.

If the applicant and the qualifying relative have been living together – for example, on a military base that accommodates families or in a private facility off base – the removal of the applicant can therefore create separation. Under those circumstances, the qualifying relative might well suffer psychological and emotional harm associated with the separation.

The resulting impairment of his or her ability to serve the U.S. military could exacerbate that hardship. In addition, even if the qualifying relative’s military service already separates him or her from the applicant, the applicant’s removal overseas might magnify the stress of military service to a level that would constitute extreme hardship.

4. DOS Warnings Against Travel to or Residence in Certain Countries

DOS issues travel warnings to notify travelers of the risks of traveling to a foreign country. Reasons for issuing a travel warning include, but are not limited to, unstable government, civil war, ongoing intense crime or violence, or frequent terrorist attacks. Travel warnings remain in place until the situation changes. In some of these warnings, DOS advises of travel risks to a specific region or specific regions of a country.

In other travel warnings, DOS does more than merely notify travelers of the risks; it affirmatively recommends against travel or residence and makes its recommendation countrywide.

These travel warnings might contain language in which:

  • DOS urges avoiding all travel to the country because of safety and security concerns;
  • DOS warns against all but essential travel to the country;
  • DOS advises deferring all non-essential travel to the country; and/or
  • DOS advises U.S. citizens currently living in the country to depart.

Generally, the fact that a qualifying relative who is likely to relocate would face significantly increased danger in the country of relocation would often weigh heavily in favor of a finding of extreme hardship. If the country of relocation is currently subject to a DOS country-wide travel exists and, therefore, that relocation would result in extreme hardship.

If the travel warning covers only part of the country of relocation, but the officer finds that that part is one to which the qualifying relative plans to return despite the increased danger (for example, because of family relationships or employment opportunities), then that fact would similarly tend to weigh heavily in favor of finding that relocation would result in extreme hardship.

Alternatively, if it is more likely than not that the qualifying relative would relocate in a part of the country that is not subject to the travel warning (either because of the danger in the area covered by the travel warning or for any other reason), the officer should evaluate whether relocation in the chosen area would itself result in extreme hardship to that qualifying relative.

Conversely, if the applicant were to return to this particular country but the qualifying relative would be more likely than not to remain in the United States, the separation might well result in psychological trauma for the qualifying relative.

5. Substantial Displacement of Care of Applicant’s Children

USCIS recognizes the importance of family unity and the ability of parents and other caregivers to provide for the well-being of children. Moreover, depending on the particular facts, either the need to assume someone else’s care-giving duties or the continuation of one’s existing care-giving duties under new and difficult circumstances can be sufficiently burdensome to rise to the level of extreme hardship for the caregiver. The children do not need to be U.S. citizens or lawful permanent residents for that to be the case.

At least two different scenarios can occur.

In one scenario, the primary or sole breadwinner is refused admission, and the caregiver, who is a qualifying relative, remains behind to continue the caregiving. The fact that the breadwinner’s refusal of admission would cause economic loss to the caregiver is not by itself sufficient for extreme hardship. Economic loss is a common consequence of a refusal of admission.

But, depending on the facts of the particular case, economic loss can create other burdens that in turn are severe enough to amount to extreme hardship. For example, if the qualifying relative must now take on the combined burdens of breadwinner and ensuring continuing care of the children, and that dual responsibility would threaten the qualifying relative’s ability to meet his or her own basic subsistence needs or those of the person(s) for whom the care is being provided, that dual burden would tend to weigh heavily in favor of finding extreme hardship. In addition, depending on the particular circumstances, the qualifying relative may suffer significant emotional and psychological impacts from being the sole caregiver of the child(ren) that exceed the common consequences of being left as a sole parent.

If the refusal of admission would result in a substantial shift of care-giving responsibility from the applicant to a qualifying relative, and that shift would disrupt family, social, and cultural ties, or hinder the child(ren)’s psychological, cognitive, or emotional development, or otherwise frustrate or complicate the qualifying relative’s efforts to provide a healthy, stable, and caring environment for the child(ren), the additional psychological and economic stress for the qualifying relative could exceed the levels of hardship that ordinarily result from family separation – depending, again, on the totality of the evidence presented. If that is found to be the case, such a consequence would tend to weigh heavily in favor of a finding of extreme hardship to the qualifying relative, provided the applicant shows:

  • The existence of a bona fide parental or other care-giving relationship between the applicant and the child(ren);
  • The existence of a bona fide relationship between the qualifying relative and the child(ren); and
  • The qualifying relative would become the primary caretaker for the child(ren) or otherwise would take on significant parental or other care-giving responsibilities.

To prove a bona fide relationship to the child(ren), the applicant and qualifying relative should have emotional and/or financial ties or a genuine concern and interest for the child(ren)’s support, instruction, and general welfare. Evidence that can establish such a relationship includes:

  • Income tax returns;
  • Medical or insurance records;
  • School records;
  • Correspondence between the parties; or
  • Affidavits of friends, neighbors, school officials, or other associates knowledgeable about the relationship.

To prove the qualifying relative either would become the primary caretaker for the child(ren) or relative needs to show an intent to assume those responsibilities. Evidence of such an intent could include:

  • Legal custody or guardianship of the child, such as a court order;
  • Other legal obligation to take over parental responsibilities;
  • Affidavit signed by qualifying relative to take over parental or other care-giving responsibilities; or
  • Affidavits of friends, neighbors, school officials, or other associates knowledgeable about the qualifying relative’s relationship with the children or intentions to assume parental or other care-giving responsibilities.would otherwise take on significant parental or other care-giving responsibilities, the qualifying relative’s relationship with the children or intentions to assume parental or other care-giving responsibilities.

Hypothetical Case Examples

Scenario #1: AB has lived continuously in the United States since entering without inspection 7 years ago. He and his U.S. citizen wife have been married for 4 years. If AB is refused admission, it is reasonably foreseeable that his wife would relocate with him. His wife is a sales clerk. A similar job in the country of relocation would pay far less. In addition, she does not speak the language of the relocation country, lacks experience in the country, and lacks the ties that would facilitate social and cultural integration and opportunities for employment. AB himself is an unskilled laborer who similarly would command a much lower salary in the country of relocation. The couple has no children.

Analysis: These facts alone generally would not favor a finding of extreme hardship. The hardships to the qualifying relative, even when aggregated, include only common consequences of relocation – economic loss and the social and cultural difficulties arising mainly from her inability to speak the language.

Scenario #2: The facts are the same as in Scenario # 1 except that now the couple has a 9-year old U.S. citizen daughter who would relocate with them if AB is refused admission. The child was born in the United States and has lived here her entire life. AB’s wife and daughter both have close relationships with AB’s wife’s U.S. citizen sister and brother-in-law, who are the child’s aunt and uncle, and this couple’s U.S. citizen children, who are the child’s cousins, as well as other members of the family. They all live in close proximity with one another, have close emotional bonds, and visit each other frequently, and the aunt and uncle help care for the child. Neither AB’s wife’s family nor (for this particular waiver) the child are qualifying relatives, but AB’s wife, who is a qualifying relative, would suffer significant emotional hardship from seeing the suffering of both her young child and her sister’s family (the child’s aunt, uncle and cousins), all separated from one another, as well as separated from other family members, and from losing the emotional bonds she and her child have with her sister’s family and other family members, and financial benefit she receives from the care that her sister and brother-in-law provide. In addition, the child (like her mother) does not speak the language of the relocation country.

Analysis: Depending on the totality of the evidence, these additional facts would generally support a finding of extreme hardship. The aggregate hardships to the U.S. citizen wife now include not only the economic losses, diminution of professional opportunities, and social, cultural, and linguistic difficulties – all common consequences – but also the extra emotional hardship she would experience as a result of seeing the suffering of her young child and also her sister and the sister’s family, and other members of the family because of the additional separation, the child’s inability to speak the language, as well as loss of emotional bonds between all these family members and financial benefit from their contribution to the care of the child. That is the case even though neither the child nor the aunt, uncle and cousins, or family members are qualifying relatives for the particular waiver, because their suffering will in turn cause significant emotional suffering for the U.S. citizen wife, who is a qualifying relative. Note that even though the common consequences are not alone sufficient to constitute extreme hardship, they must be added to the other hardships to determine whether the totality adds up to extreme hardship.

Scenario #3: Again the facts are the same as in Scenario # 1, except this time AB himself has LPR parents who live in the United States and who would suffer significant emotional hardship as a result of separation from their son and their daughter-in-law, with whom they have close family relationships.

Analysis: Depending on the totality of the evidence, the addition of these facts would generally favor a finding of extreme hardship. There are now 3 qualifying relatives – AB’s wife and both his parents. Although the aggregated hardships to AB’s wife alone (under Scenario # 1) include only the common consequences of a refusal of admission, further aggregating them with the emotional hardships suffered by the two LPR parents would generally tip the balance in favor of a finding of extreme hardship, depending, again, on the totality of the evidence.

Scenario #4: CD has lived continuously in the United States since entering without inspection 4 years ago. She has been married to her U.S. citizen husband for 2 years. It is reasonably foreseeable that he would choose to remain in the United States in the event she is refused admission. He has a moderate income, and she works as a housecleaner for low wages. Upon separating they would suffer substantial economic detriment; in addition to the loss of her income, he is committed to sending her remittances once she leaves, in whatever amounts he can afford. They have no children, and there are no extended family members in the United States.

Analysis: These facts alone generally would not favor a finding of extreme hardship. The qualifying relative, and the hardships to him, even when aggregated, include only common consequences – separation from his spouse and economic loss.

Scenario #5: EF and GH, a married couple from Taiwan, entered the United States on student visas 19 and 17 years ago, respectively. They overstayed their visas and have lived here ever since. They have five U.S. citizen children, all of whom were born in the United States and have lived here their entire lives. In the event that the parents are removed to Taiwan, it is reasonably foreseeable that the children would relocate with them. The children range in age from 6 to 15 and are fully integrated into the American lifestyle. None of the children are fluent in Chinese, and they would have to attend Chinese language public schools if they relocate because the family would not be able to afford private school. The 15-year-old child in particular would experience significant disruption to her education in light of her current age and her inability to speak or understand Chinese. The family of seven would be able to afford only a one-bedroom apartment upon relocation.

Analysis: This is the fact situation of Matter of Kao, 23 I. & N. Dec. 45 (BIA en banc 2001). The Board in that case, sitting en banc, held that these facts constitute extreme hardship for the 15-year-old daughter, who was one of the qualifying relatives. The Board therefore did not need to decide whether the other qualifying individuals would also suffer extreme hardship upon relocation. A key factor in that decision was the daughter’s age. In addition to the common consequences (integration into the American lifestyle, current inability to speak the language of the country of relocation, lesser educational opportunities, and economic loss), the Board found that because of her age and the time it would take to become fluent in the language of the country of relocation, the daughter’s education would be significantly disrupted and she would experience extreme hardship as a result.

Scenario #6: KL has lived continuously in the United States since entering without inspection six years ago. She married a U.S. citizen four years ago and seeks a waiver of the 10-year inadmissibility bar for unlawful presence based on extreme hardship to her husband. If she is refused, she would be removed to a country for which the U.S. State Department has issued travel warnings for specific regions, including the region where her family lives. It is reasonably foreseeable that her husband would relocate with her, and that because of the danger they would relocate in one of the areas for which no travel warnings have been issued. Unemployment throughout the country is extremely high, however, and without the family connections that they would forfeit by living outside the region of their family’s residence, the job prospects for both spouses are dim and their basic subsistence needs would be threatened.

Analysis: The fact that parts of the country of relocation are dangerous does not, by itself, constitute extreme hardship. Similarly, economic loss alone is not extreme hardship. But economic detriment that is severe enough to threaten a person’s basic subsistence can rise to the level of extreme hardship. Therefore, if the dangers in parts of the relocation country would induce the qualifying relative to relocate in other parts of the country where economic subsistence would be threatened (or if relocation in such parts is reasonably foreseeable for any other reason), the resulting economic distress would generally favor a finding of extreme hardship, depending on the totality of the evidence. Conversely, if it were reasonably foreseeable that because of the economic realities the qualifying relative, despite the danger, would relocate in a region for which travel warnings have been issued, then that danger would weigh heavily in favor of finding extreme hardship.

I-601 Waiver Approved by AAO for Fraud/Misrepresentation and Crime Involving Moral Turpitude

I-601 Waiver Approved by AAO for Fraud/Misrepresentation and Crime Involving Moral Turpitude

I-601 Waiver Legal News

The applicant is a native and citizen of Pakistan 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 a crime involving moral turpitude.  This was due to a conviction on October 6, 1995 for P.L. 215.15.01, or Intimidating a Victim or Witness in the Third Degree.

The applicant was also found to be inadmissible to the United States under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. §1182(a)(6)(C)(i), for having attempted to procure an immigration benefit in the United States by fraud or willful misrepresentation.  The applicant submitted false information on an Application for Asylum and Withholding of Removal (Form 1-589).

The applicant sought a waiver of inadmissibility under section 212(h) of the Act and section 212(i) 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.

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

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

Section 212(i) of the Act provides that:

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

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

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.

The favorable factors that contributed to approval of this I-601 “extreme hardship” waiver include the following:

  • The applicant’s wife has medical conditions including depression, recurring pain that exacerbates her depression, and anxiety.  She is monitored biweekly to ensure that her condition does not become life-threatening.
  • Should the wife’s condition become unbearable she will undergo a hysterectomy.
  • The wife’s medical conditions are complicated by her trying to become pregnant.  She is undergoing fertility treatment, and the applicant’s presence is necessary for continued support.
  • Due to health problems the applicant’s wife misses work at times.  She depends on the applicant’s income in addition to her own.
  • If the wife remains in the United States without the applicant she would be unable to support herself entirely and would be unable to visit the applicant in Pakistan.
  • Affidavit from the wife states that the applicant is her strength and support and that time spent with him is the happiest of her life.  She states that she is trying to have a child, but suffers severe menstrual pain and it is difficult to conceive.  She states that she was diagnosed with major depressive disorder, anxiety, and hypertension due mainly to the applicant’s immigration problem and her inability to get pregnant, and that she has regularly received psychiatric care for more than two years, taking limited medication because of trying to get pregnant.
  • A letter from the spouse’s medical doctor states that the wife has a history of adenomyosis, hypothyroidism and depression, with pain and vaginal bleeding that impact her everyday life by causing her to avoid activities.  The letter further states that there is a possibility of a hysterectomy, calling it a risky and invasive surgery, and that she is undergoing fertility treatment.
  • A 2011 psychological evaluation notes the wife’s medical history and states that being unable to conceive causes anxiety. The evaluation states that the spouse is diagnosed with major depressive disorder and it further states that the applicant’s wife could benefit with a closely monitored trial of antidepressants, but that she needs family support.
  • A March 2013 letter from a medical doctor states he has treated the applicant’s wife since 1998 and that she is taking prescribed psychotropic medication.
  • The family members of the applicant’s wife all live in the United States.  The family is extremely close and has strong bonds, and she visits with her family often.
  • The applicant’s wife came to the United States more than 20 years ago and is assimilated in manner and ideology.  She became a U.S. citizen in 2004
  • Country conditions information indicates that Pakistan is dangerous, becoming increasingly radical and violent, and that expatriates are subjected to increasing scrutiny.  Anti-Americanism is on the rise.
  • The applicant’s wife has an established job as an accountant in the United States, but a Muslim female in Pakistan is rarely given the opportunity for a career.  It is unlikely the applicant’s spouse would find a job in Pakistan to support herself because of discrimination against women in the work force.
  • The applicant’s wife states that she fears women are a prime target by Islamic fundamentalists in Pakistan and that she does not follow traditional rules for women.
  • Medical treatment is unavailable or unaffordable in Pakistan, so the financial impact of living there would be life-threatening for the applicant’s spouse.  The applicant’s wife asserts that mental health issues are largely ignored in Pakistan.

Based on the above, the AAO found that the applicant’s qualifying spouse will suffer extreme hardship as a consequence of being separated from the applicant, in particular due to her medical and emotional condition.  The AAO also found that the cumulative effect of the qualifying spouse’s family ties and length of residence in the United States, her health and safety concerns, and loss of employment if she were to relocate, rises to the level of extreme  if she returned to Pakistan to reside 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, upon a balancing of the positives and negatives of the case, favorable discretion was exercised and the I-601 waiver was approved.

How to Prepare a Powerful Psychological Evaluation to Prove Extreme Hardship for the I-601 and I-601A Waiver

How to Prepare a Powerful Psychological Evaluation to Prove Extreme Hardship for the I-601 and I-601A Waiver

Extreme Hardship Defined

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

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

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

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

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

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

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

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

(**Please note that the I-601a Provisional Waiver requires a showing of extreme hardship to the U.S. citizen spouse or parent.  In other words, lawful permanent residents are not allowed to be the qualifying relative for I-601a Provisional Waivers).

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 of Immigration Appeals 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 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 lge, 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 lge, 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 (BI2001) (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).

The Psychological Evaluation

The psychological evaluation can thus be a powerful piece of evidence to demonstrate and prove the extreme hardship that the qualifying relative would suffer if he or she is separated from the applicant; or alternatively, if the qualifying relative leaves the U.S. and re-locates abroad in order to be with the applicant.  I will first go over an I-601 waiver application that was approved by the AAO to examine the characteristics of a successful and persuasive psychological evaluation.

The applicant in this case is a native and citizen of Mexico who was found to be inadmissible to the United States pursuant to section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), for fraud or willful misrepresentation of a material fact in order to procure an immigration benefit.  The applicant is married to a U.S. citizen and seeks a waiver of inadmissibility pursuant to Section 212(i) of the Act, 8 U.S.C. § 1182(i), in order to reside with her husband in the United States.

The qualifying relative (the U.S. citizen husband) was born in Texas.  He is 58 years old, and has 10 siblings, 4 children from previous relationships, and 3 grandchildren who all reside in the U.S.  He has a 88 year old elderly father.  He fears that he would not have a job if he moves to Mexico and consequently would not be able to afford visits to see his father.  He encountered a shoot-out between drug cartels and the Mexican military during a visit to see his mother-in-law during a visit to Ciudad Juarez, Mexico.  He and his nephew were stopped by armed men with machine guns who threatened their lives during a visit to see his mother-in-law in the state of Sinaloa, Mexico.  A letter from his sister-in-law confirms the violence in Los Mochis Mexico, and the general state of disrepair of the house there that the applicant and her U.S. citizen husband would have to live in.

The psychological report submitted as part of the I-601 waiver application expressly states the following:

  • The U.S. citizen husband was the middle child of eleven children who grew up in a home with a physically and verbally abusive alcoholic father.
  • The U.S. citizen husband watched and heard his mother being beaten and felt powerless to stop his father.
  • The U.S. citizen husband is very close to his siblings since they supported each other while growing up in order to survive.
  • The U.S. citizen husband grew up in Idaho where he felt a sense of discrimination and prejudice during his school years.
  • When the U.S. citizen husband was 23 years old, he was called back home from the U.S. Army because his mother had died, his father had left, and there was no one to care for his younger siblings.
  • The U.S. citizen husband’s first marriage was brief and they had a son together.  His ex-wife disappeared with his son and he was unable to find him until his son was 12 years old and complained that his mother abused him.  His son subsequently lived with him for two years.
  • The U.S. citizen husband’s physician prescribed him Prozac for his depression which dates back to his first marriage.
  • The U.S. citizen husband re-married and had two children with his second wife.  This marriage lasted 28 years.
  • When the U.S. citizen husband met his current wife (the I-601 waiver applicant), he felt there was new meaning in life.
  • He fears he will go into serious depression if she moves back to Mexico without him, and fears that if he moved to Mexico with her, he would deeply miss his children and siblings.
  • The U.S. citizen husband has a history of depression and anxiety.
  • The U.S. citizen husband has difficulty sleeping, feels anxious, and had had thoughts of suicide.
  • The U.S. citizen husband has been diagnosed with Dysthymia and Adjustment Disorder with Depression and Anxiety.
  • If the wife is not allowed to remain in the U.S., the U.S. citizen husband would experience serious psychological consequences and it his highly likely his depression would worsen to the point he would consider suicide.

In my experience, effective psychological evaluations should always include a detailed personal history of the person being examined (along with the waiver applicant and family members in general).  It should concisely and accurately detail the unique circumstances of the patient that makes him or her particularly vulnerable to hardship.

The psychological evaluation in support of a I-601 or I-601a waiver should summarize the psychological and medical history of the patient, including the length of time the patient has suffered from psychological disorders and medical illnesses; any treatments received including surgery; and the medications the patient has been prescribed.  This is particularly important because the USCIS can discount the credibility of psychological diagnoses prepared solely to support the I-601 or I-601A waiver application.  A discussion of a history of previously diagnosed psychological disorder(s) will go a long ways towards establishing credibility.

The psychological evaluation should describe the emotional impact of both separation and re-location.  In other words, it must discuss the psychological and emotional impact on the qualifying relative if he or she becomes separated from the applicant due to inadmissibility; as well as the psychological and emotional impact on the qualifying relative if he or she re-locates abroad in order to be with the applicant.

Since mental and physical well-being have been found to be closely related, the psychological report can also emphasize the physical consequences of patient’s current or future psychological state.  For example, if the patient suffers from coronary disease, then an aggravation of his or her psychological disorders could contribute to a fatal heart attack.

The psychological evaluation should state the methodology used to diagnose the patient.  It should specify all of the symptoms shown by the patient that led to a particular diagnosis.   If applicable, if should expressly state that separation from the applicant (and re-location abroad to be with the applicant) would make the psychological disorders worsen.   It should also state what the consequences will be for the patient if his or her psychological disorders worsen, including the possibilities of decompensation or suicide.

A well-written psychological evaluation should have a final section that summarizes the conclusions of the psychologist or psychiatrist.  It should emphasize all of the hardships that the patient is currently suffering from, as well as those that he will suffer (or that will grow worse) should the applicant not be admitted to the United States.

It is therefore essential that the psychological evaluation be prepared by a professional who has experience with the unique requirements of the extreme hardship standard used in I-601 and I-601a waiver applications.  If your chosen psychologist or psychiatrist does not have such experience, I suggest providing a link to this article and making sure they understand the importance of a well-written and detailed psychological report.

Expedited Approval of the I-601 Waiver, I-212 Waiver, and 212(d)(3) Non-Immigrant Waiver

I-601 Waiver and I-601A Waiver Expedite

The USCIS has had a long standing policy to accept requests to expedite processing of petitions or applications where the applicant or the petitioner demonstrates reasons that merit expedited processing of a petition or application.

While almost all I-601 waiver applicants outside the United States have an interest in expeditious processing, the USCIS states that only extraordinary circumstances that present certain compelling and urgent, time-sensitive reasons merit expedited processing of the I-601 waiver.

According to a memorandum dated 2011, the types of extraordinary circumstances that may, generally, merit expedited processing of a Form I-601 are those in which there are:

  • “time-sensitive and compelling situations that necessitate the applicant’s presence in the United States sooner than would be possible if the application were processed under normal processing times” or
  • “other time-sensitive circumstances that nonetheless merit expeditious processing, principally where the failure to expedite the adjudication could result in significant delays in family reunification.”

These situations may include, but are not limited to, situations in which the applicant establishes one or more of the following:

  • The applicant has urgent and critical medical needs that cannot be addressed in the applicant’s country;
  • An applicant’s family member in the United States has a serious medical condition and has urgent and critical medical needs related to that condition that require the applicant to assist the family member in the United States;
  • The applicant is faced with urgent circumstances related to the death or serious illness of a family member;
  • The applicant or qualifying family member is a particularly vulnerable individual due to age, serious medical condition, or disability and this vulnerability is exacerbated by the applicant’s presence outside the United States;
  • The applicant is at risk of serious harm due to personal circumstances distinct from the general safety conditions of those living in the applicant’s country;
  • It would be in the national interest of the United States to have the applicant in the United States (for example, the applicant’s presence in the United States is urgently required for work with a U.S. government entity); or
  • As described in a request from or for a member of the Armed Forces of the United States:
    • The applicant’s qualifying family member is a member of the military who is deployed or will soon be deployed; and
    • The applicant demonstrates that, in light of the deployment there are compelling reasons to expedite the request due to the impact of the applicant’s absence from the United States on the applicant, the qualifying family member, or their children, if any.

The above non-exhaustive list describes some examples of situations that may, depending on the facts of the case, merit a discretionary approval of a request to expedite adjudication of a waiver request.

However, these are not the only circumstances that may warrant expeditious processing.  There may also be other time-sensitive circumstances that do not necessitate the applicant’s presence in the United States sooner than would be possible under normal processing times, but that nonetheless merit expeditious processing.

For example, the applicant may be ineligible to receive a visa in the following month due to forecasted visa regression and therefore faces an even more prolonged and unanticipated separation from family members if the application is not expedited.

Similarly, the applicant may request that the case be expedited to prevent a child not covered by the Child Status Protection Act from aging out before visa issuance.  There also may be circumstances in which a prior USCIS error merits expeditious processing of a request.

Requests must include sufficient evidence to support the claimed need for expedited processing or an explanation of why that evidence is not available.  For example, if the request is based on an urgent, serious medical condition, the applicant should provide a medical report.  If the request is based on urgent need by a U.S. government entity to have the applicant in the United States, the applicant should provide a letter from the entity supporting the expedite request.

My office has successfully obtained expedited approval of applications for the I-601 waiver.  I also regularly obtain expedited approval of the I-129F Petition for Alien Fiancee and I-130 Petition for Alien Relative.  In my experience, the “extraordinary circumstances” discussed in this article form the basis for successful expedite requests for the I-601 waiver, the I-212 waiver, the 212(d)(3) non-immigrant waiver, as well as other relative-based petitions.  The most common basis for expedited approval that I encounter is military deployment of the U.S. citizen petitioner.

I-601 Waiver Approved by AAO for Russian Inadmissible Due to Fraud

I-601 Waiver Approved by AAO for Russian Inadmissible Due to Fraud

I-601 Legal News

The applicant is a citizen of Russia who was found to be inadmissible to the United States under INA Section 212(a)(6)(C)(i) for having procured a visa or admission to the United States through fraud or misrepresentation of a material fact.  The applicant resided in the United States from May 5, 2000, when he entered as a visitor for business, to March 2001, when he returned to Russia.

The applicant was found to be inadmissible for having procured a visa through a visa fraud ring by making false statements that he owned a company and was traveling to the U.S. for a trade show.  He was arrested and charged with fraud and misuse or forgery of a visa on September 14, 2000, but the charges were dismissed by the U.S. District Court after the applicant cooperated with authorities in the prosecution of the fraud ring leaders.

The applicant is married to a U.S. citizen and is the beneficiary of an approved Petition for Alien Relative.  The applicant seeks a waiver of inadmissibility pursuant to INA Section 212(i), in order to return to the United States and reside with his wife.

INA Section 212(a)(6)(C) provides, in pertinent part:

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

INA Section 212(i) provides:

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

The first important point to keep in mind is that a waiver of inadmissibility under INA Section 212(i) is dependent upon showing that the bar to admission imposes extreme hardship on the qualifying relative (which includes the U.S. citizen or lawful permanent resident spouse or parent of the applicant).  Hardship to the applicant or his children can be considered only insofar as it results in hardship to a qualifying relative.  See Matter of Mendez-Moralez 21 I&N Dec. 296,301 (BIA 1996).

The second important point to keep in mind when preparing the I-601 waiver is that the applicant must establish extreme hardship to his or her qualifying relative(s) under two possible scenarios: the extreme hardships endured by the qualifying relative due to separation if the applicant remains abroad; and the extreme hardships endured by the qualifying relative due to re-location, if he or she moves abroad to be with the applicant.

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.  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.

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

Additionally, although the AAO acknowledged that the actual hardship of each hardship factor varies  with the unique circumstances of each case, it gives considerable, if not predominant, weight to the hardship of separation itself, particularly in cases involving the separation of spouses from one another and/or minor children from a parent.  Salcido-Salcido, 138 F.3d at 1293.

The favorable factors that led to approval of this I-601 waiver are the following:

  • The applicant’s wife is a forty year-old native of Russia and citizen of the United States.  She has lived apart from her husband and older daughter for over six years.  Due to the economic situation in Russia, they decided that she would remain in the U.S. and support the family and the applicant would keep the children with him because she must work long hours as a nurse in order to support the family.
  • The U.S. citizen wife has visited Russia more than thirty times in the past six years and further states that she would have no choice but to move back to Russia if her husband’s I-601 waiver was denied
  • Affidavits from co-workers state that the U.S. citizen wife travels to Russia very frequently, misses her family badly, and gets tears in her eyes whenever she talks about her husband and children
  • The U.S. citizen wife works 24 hours of overtime per week in addition to her three 12-hour shifts as an operating room nurse in order to pay for her travels to Russia.  She usually works immediately the next day after returning from Russia.
  • The U.S. citizen wife feels sick for 10 days after returning from her trips to Russia and states she cannot bear this situation for much longer.
  • The U.S. citizen wife is experiencing financial hardship due to the cost of frequent travels to Russia that cost $850 to $1350 per trip
  • The U.S. citizen wife has resided in the U.S. since 1999 and is regarded by coworkers as dedicated and responsible and serves as a role model for new staff.
  • She purchased a house in 2006 where she intended to move in with her family.  If she left the U.S., she would be forced to sell the house at a $100,000 loss because the housing market has crashed.  She has no way to pay for the short-fall.  Low wages in Russia would mean she would never be able to pay back her debt.
  • The U.S. citizen wife has a mother who also lives in New York and works as a nurse.  She would miss her mother terribly if she re-locates back to Russia.

Finally, in Matter of Mendez-Moralez I&N Dec. 296 (BIA1996), the BIA held that establishing extreme hardship and eligibility for a waiver does not create an entitlement to that relief, and that extreme hardship, once established, is but one favorable discretionary factor to be considered.  In discretionary matters, the alien bears the burden of proving eligibility in terms of equities in the United States which are not outweighed by adverse factors. See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA1957).

In evaluating whether section 212(i) relief is warranted in the exercise of discretion, the factors adverse to the alien 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 and seriousness, and the presence of other evidence indicative of the 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 alien began 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 or service in 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).  See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA1996).  The AAO must then “balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented on the alien’s behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. ”

Discretion was exercised in favor of the applicant due to the factors discussed above and this I-601 waiver case was approved by the AAO.