Client Approval: I-601 Waiver for Fraud/Misrepresentation Approved for Same Sex Couple

Client Approval: I-601 Waiver for Fraud/Misrepresentation Approved for Same Sex Couple

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for an Indian client in a same sex marriage who is 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 and has remained in the United States for over 17 years.  During his stay in the U.S., he married a U.S. citizen and applied for Adjustment of Status to permanent residence.  He inadvertently failed to disclose a prior marriage he entered into for a short period of time in his Adjustment of Status package.  He was consequently charged with fraud/misrepresentation pursuant to INA Section 212(a)(6)(C)(i).  He subsequently divorced his spouse, met and married his current same-sex spouse, and applied again for Adjustment of Status.

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 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.

We prepared a comprehensive I-601 waiver application including a 34 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship.”  We also thoroughly discussed and presented evidence of  the U.S. citizen spouse’s unique background which made him particularly vulnerable to medical and psychological hardship.  This includes the suicide of his father; the drug addiction of his brother; rejection by his family of his sexual orientation; as well as the psychological breakdown these events triggered and that he has suffered from throughout his adult life.

This case was also challenging because the waiver applicant was previously married to members of the opposite sex in the past.  We went beyond the legal standard of extreme hardship to prove the validity and genuine nature of this same sex marriage, and the vital and loving role each spouse plays in ensuring the other’s welfare and well-being.

The supporting documents submitted as part of this I-601 waiver application included:

  • Medical history and diagnosis of the U.S. citizen spouse, including the possibility of a life-threatening medical crisis in the future
  • Psycho-social evaluation of the U.S. citizen spouse which confirms  his Dysthymic Disorder and Generalized Anxiety Disorder
  • Proof of significant financial debt owed by the household and the minimal income earned by the U.S. citizen spouse before meeting and marrying his current spouse
  • Proof of academic achievement and professional accomplishments of the Indian spouse, demonstrating his good moral character and his history of contribution to the economy of the United States
  • Detailed break-down of the family’s household income, expenses and debt/liabilities
  • Proof of financial support provided by the married couple to the elderly mother of the Indian spouse (a U.S. lawful permanent resident), who financially relies on the couple for all of her basic needs
  • Detailed country conditions of India, particularly as it relates to income, job opportunities, medical care, mental health treatment, stigma against homosexuality, and its non-recognition of same sex marriages.
  • Letters of good moral character and rehabilitation for the Indian spouse

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this same-sex couple will be able to live together lawfully in the United States and provide support to an elderly mother in need.

Client Approval: I-601 Waiver Approved in 1.5 Months for Membership in Communist Party

Client Approval: I-601 Waiver Approved in 1.5 Months for Membership in Communist Party

We recently obtained approval for the I-601 Application for Waiver of Grounds of Inadmissibility for a Chinese national deemed inadmissible pursuant to INA Section 212(a)(3)(D).  Our client is the spouse of a U.S. citizen who was found inadmissible at her I-485 adjustment of status interview due to prior membership in the Chinese Community Party.

Our office was contacted by the client due to our extensive experience handling I-601 waiver cases, including obtaining waiver approvals for those deemed inadmissible due to membership in a communist party pursuant to INA Section 212(a)(3)(D).

INA Section 212(a)(3)(D) deems inadmissible any immigrant who is or has been a member of or affiliated with the Community or any other totalitarian party, domestic, or foreign:

(i) In general. Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.

Three exceptions apply:

INA Section 212 (a)(D)(ii) Exception for involuntary membership. – Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.

INA Section 212 (a)(D)(iii) Exception for past membership. – Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that-

(I) the membership or affiliation terminated at least-

(aa) 2 years before the date of such application, or

(bb) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and

(II) the alien is not a threat to the security of the United States.

INA Section 212 (a)(D)(iv) Exception for close family members. – The Attorney General may, in the Attorney General’s discretion, waive the application of clause (i) in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States.

There is also a judicially created exception that states that an alien is admissible if his or her membership is “not meaningful.” The U.S. Supreme Court elaborates that membership is “not meaningful” if the alien lacks “commitment to the political and ideological convictions of communism.” Rowoldt v. Perfetto355 U.S. 115 (1957).

As we do with all of our waiver cases in which more than one exception or waiver applies, we presented evidence that our client meets the legal standard for every relevant and applicable exception and waiver.  While this is significantly more work for us and not standard practice for some attorneys, we always do our utmost to maximize the probability of approval for our clients at no additional cost.

Specifically, we presented compelling evidence that our client’s membership in the Chinese Community Party was involuntary and “not meaningful.”  We discussed how our client held no leadership positions; never attended a Chinese Communist Party meeting; neither advocated for nor endorsed any part of the Chinese Communist Party ideology; and at no time in her life participated in activities promoting Chinese Communist Party principles or advocating against US interests.

We also presented evidence that our client agreed to join the Chinese Community Party due to the scholarship and post-graduate job opportunities it might offer.  We then cited objective academic research that found that membership in the Communist Party had a significant impact on increasing upward mobility in employment, and on decreasing the risk of downward mobility or discharge.  According to the research we cited, overall, Party Membership accounted for a swing of 30% in the likelihood of a party member experiencing upward or downward mobility, compared to a non-party member (with the non-party member bearing the greater risk of negative employment outcome).

We engaged in an in-depth discussion of how the admission of our client serves the humanitarian purposes of the United States government; promotes the principle of family unity with her U.S. citizen husband; and that it is in the public interest of the United States to allow our client to be admitted for U.S. lawful permanent residence based on her academic background and professional contributions thus far.

This discussion also included a comprehensive illustration of the extreme hardships that our client’s U.S. citizen husband would suffer should he be separated from his wife (or alternatively, forced to return to China).  Specifically, we cited the suspicion, monitoring, and possible censure the U.S. citizen is likely to experience should he re-locate back to China, due to politically sensitive topics he brought up at international conferences as part of his professional duties as an academic.  We also conducted a financial analysis of the couple’s situation and demonstrated the dependency of the U.S. citizen husband on his wife’s substantial legal income.

Based on our expedited preparation of the waiver and filing, the I-601 waiver was approved within 1.5 month of submission to the USCIS.  Our client will now be approved for lawful permanent residence and be able to continue her life in the United States with her husband.

Adjustment of Status Approved After Prosecutorial Discretion Obtained to Terminate Removal Proceedings

Adjustment of Status Approved After Prosecutorial Discretion Obtained to Terminate Removal Proceedings

Our office recently obtained approval of an application for adjustment of status to permanent residence for the foreign spouse of a U.S. citizen.

This was a particularly difficult case since the foreign spouse was still subject to an open removal hearing that occurred when she was a child, and wherein, she and her family were granted withholding of removal.

I personally contacted the prosecutor-in-charge of the Department of Homeland Security’s Office of ICE Counsel and requested joinder in a Motion to Terminate Removal Proceedings so that our client can pursue adjustment of status.

After presenting the compelling factors of the case both verbally and in writing, together with a collection of exhibits that established every relevant factor discussed in our request, the Office of ICE Counsel agreed to join in a Motion to Terminate Removal Proceedings.

This motion was subsequently submitted to the presiding immigration judge of the U.S. Department of Justice, Executive Office for Immigration Review, who found good cause to be shown and granted the Motion to Terminate Removal Hearings.

The Department of Homeland Security enjoys the power of prosecutorial discretion.   Federal courts and the Board of Immigration Appeals have found that the Department of Homeland Security possesses discretion in deciding how best to exercise its immigration enforcement powers. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 489-92 (1999) ( INS retains inherent prosecutorial discretion as to whether to bring removal proceedings); See Matter of Yauri, 25 I&N Dec. 103, 110 (BIA 2009) (DHS has prosecutorial discretion to grant deferred action status to a respondent).

The Department of Homeland Security has also expressed as policy the necessity of exercising its power of prosecutorial discretion. See Doris Meissner, Commissioner: Exercising Prosecutorial Discretion (Nov. 17, 2000); William Howard, Principal Legal Advisor: Prosecutorial Discretion (October 24, 2005).

On June 17, 2011, ICE issued its two most recent policy memoranda on prosecutorial discretion: John Morton, Director: Prosecutorial Discretion: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011); John Morton, Director: Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011).

As John Morton’s Prosecutorial Discretion Memorandum of June 17, 2011 states,

“One of ICE‟s central responsibilities is to enforce the nation‟s civil immigration laws in coordination with U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS). ICE, however, has limited resources to remove those illegally in the United States. ICE must prioritize the use of its enforcement personnel, detention space, and removal assets to ensure that the aliens it removes represent, as much as reasonably possible, the agency‟s enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity of the immigration system.”

John Mortan’s Prosecutorial Discretion Memorandum of June 17, 2011, also puts forth factors to be considered by the agency’s officers, agents, and attorneys.  The following list is not considered exhaustive and no one factor is determinative.  The list of factors cited include:

  1. the agency’s civil immigration enforcement priorities;
  2. the person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
  3. the circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
  4. the person’s pursuit of education in the United States, with particular consideration given those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
  5. whether the person, or the person’s immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
  6. the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
  7. the person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
  8. whether the person poses a national security or public safety concern;
  9. the person’s ties and contributions to the community, including family relationships;
  10. the person’s ties to the home country and conditions in the country;
  11. the person’s age, with particular consideration given to minors and .the elderly;
  12. whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
  13. whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
  14. whether the person or the person’s spouse is pregnant or nursing;
  15. whether the person or the person’s spouse suffers from severe mental or physical illness;
  16. whether the person’s nationality renders removal unlikely;
  17. whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
  18. whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and
  19. whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

Using these memoranda together with our extensive experience presenting persuasive I-601, I-601A, I-212, and 212(d)(3) waiver cases as guidelines, we presented a compelling and persuasive case that allowed termination of removal proceedings.

Our client’s adjustment of status application was subsequently approved after the couple’s “marriage interview,” and the foreign spouse is now a U.S. lawful permanent resident for the first time in her life.

Client Approval: I-601 Waiver Approved under INA 212(a)(3)(D)(iv) for Community Party Membership

Client Approval: I-601 Waiver Approved under INA 212(a)(3)(D)(iv) for Community Party Membership

Our office recently received approval for the I-601 Application for Waiver of Grounds of Inadmissibility for a Chinese national deemed inadmissible pursuant to INA Section 212(a)(3)(D).  Our client is the Chinese father of a U.S. citizen daughter who was found inadmissible at his adjustment of status interview due to membership in a Community Party. His wife, on the other hand, was subsequently approved for U.S. lawful permanent residence.

Our office was then contacted by his U.S. citizen daughter to prepare an urgently needed I-601 waiver so that her father could be allowed to remain in the United States and stay united with his wife and family.

INA Section 212(a)(3)(D) deems inadmissible any immigrant who is or has been a member of or affiliated with the Community or any other totalitarian party, domestic, or foreign.

Three exceptions apply:

INA Section 212 (a)(D)(ii) Exception for involuntary membership. – Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.

INA Section 212 (a)(D)(iii) Exception for past membership. – Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that-

(I) the membership or affiliation terminated at least-

(aa) 2 years before the date of such application, or

(bb) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and

(II) the alien is not a threat to the security of the United States.

INA Section 212 (a)(D)(iv) Exception for close family members. – The Attorney General may, in the Attorney General’s discretion, waive the application of clause (i) in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States.

There is also a judicially created exception that states that an alien is admissible if his or her membership is “not meaningful.” The U.S. Supreme Court elaborates that membership is “not meaningful” if the alien lacks “commitment to the political and ideological convictions of communism.” Rowoldt v. Perfetto, 355 U.S. 115 (1957).

As we do with all of our waiver cases in which more than one exception or waiver applies, we presented evidence that our applicant meets the legal standard for every relevant and applicable exception and waiver.  While this is significantly more work for us and not standard practice for some attorneys, we always do our utmost to maximize the probability of approval for our clients at no additional cost.

Specifically, we presented compelling evidence that our client’s membership in the Community Party was involuntary and “not meaningful.”  Such evidence included affidavits from former colleagues corroborating how meaningless our client’s membership in the Community Party was.

We also stressed that our client’s membership in the Communist Party was primarily maintained to ensure job security.  We cited objective academic research that found that membership in the Communist Party had a significant impact on increasing upward mobility in employment, and on decreasing the risk of downward mobility or discharge.  According to the research we cited, overall, Party Membership accounted for a swing of 30% in the likelihood of a party member experiencing upward or downward mobility, compared to a non-party member (with the non-party member bearing the greater risk of negative employment outcome).

We also engaged in an in-depth discussion of how the admission of our client serves the humanitarian purposes of the United States government; promotes the principle of family unity with his U.S. lawful permanent resident wife and U.S. citizen daughter (and U.S. citizen grand-daughter); and that it is in the public interest of the United States to allow our client to be admitted for U.S. lawful permanent residence.

This discussion also included a comprehensive illustration of the extreme hardships that our client’s lawful permanent resident wife would suffer should she be separated from her husband of 41+ years (or alternatively, forced to return to China and be separated from her U.S. citizen daughter and grand-daughter).

Based on our expedited preparation of the waiver and filing, the I-601 waiver was approved within 1 month of submission to the USCIS.  This tight-knit family will now be allowed to lawfully settle together in the United States.

Client Approval: I-601 Waiver and Adjustment of Status Approved in 3.5 Months

Client Approval: I-601 Waiver and Adjustment of Status Approved in 3.5 Months

This week, we received approval of both an Application for Adjustment of Status to Lawful Permanent Residence and approval of the related I-601 “Extreme Hardship” Waiver for a client subject to a life-time inadmissibility bar to the United States due to fraud/misrepresentation.

The applicant was 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.

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.

In this case, we prepared an Application for Adjustment of Status to Lawful Permanent Residence for the applicant based upon marriage to a U.S. citizen.   As with all of our Adjustment of Status cases, we provided a detailed letter going over every step of Adjustment of Status process to our client.  We also provided a point-by-point checklist which describes every supporting document required for the case, making it easy for our clients to know what to gather and forward to our office.

We drafted every USCIS form required for Adjustment of Status, assembled the package for filing with the USCIS, and submitted it on behalf of our client after a final review to make sure every legal and technical requirement was met.

Once the Adjustment of Status application was filed, we began preparation of the I-601 “Extreme Hardship” Waiver. The I-601 Waiver for Fraud/Misrepresentation prepared by our law firm included a complete set of USCIS forms requesting consideration of the I-601 Waiver; a 25 page waiver statement detailing relevant case law favorable to my client’s situation and presenting the extreme hardships that applied to this case; and an extensive collection of exhibits to prove the extreme hardships being presented.

The favorable factors of this case discussed in detail in our I-601 Waiver application include:

  • The U.S. citizen spouse has long suffered from Generalized Anxiety Disorder and Dysthymic “Persistent Depressive” Disorder
  • The U.S. citizen spouse has a significant family history for mental health issues including a sibling who has suffered from clinical depression, and maternal family members with histories of Alzheimer’s disease
  • The U.S. citizen spouse’s father has struggled repeatedly with cancer, severe gout, and hepatitis B, as well as hypercholesterolemia and hypertension.  The U.S. citizen spouse helps take of his father as best he can.
  • The U.S. citizen spouse’s academic research and expertise lies within in area of significant national interest to the United States
  • The U.S. citizen spouse was born and raised in the U.S. and has extensive familial, professional, and social ties to the country.
  • The waiver applicant is a senior executive with a multinational corporation that employs 11,500 people worldwide, and has been entrusted with high-level fiduciary and financial duties by the company

As a result of our effort, the I-601 “extreme hardship” waiver was approved together with the Adjustment of Status application within 3.5 months of submission, and our client was granted U.S. permanent residence.

BIA Holds that Adjustment of Status Constitutes an Admission for Purposes of Applying for a Fraud Waiver Under INA Section 237(a)(1)(H)

BIA holds that adjustment of status constitutes an admission for purposes of determining an immigrant’s eligibility to apply for a waiver under INA Section 237(a)(1)(H)

I-601 Waiver Legal News

Matter of Agour, 26 I&N Dec. 566 (BIA 2015)

At issue in this case was whether a section 237(a)(1)(H) waiver for certain fraud or misrepresentation at the time of admission is available to aliens who commit fraud in the process of adjusting their status within the United States.

INA section 237(a)(1)(H) states:

(H) Waiver authorized for certain misrepresentations.

The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who–

(i) (I) is the spouse, parent, son or daughter of a citizen of the United States or an alien lawfully admitted to the United States for permanent residence; and

(II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 212(a) which were a direct result of that fraud or misrepresentation.

(ii) is a VAWA self-petitioner. A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.

INA § 237(a)(1)(H) thus provides a discretionary waiver in removal proceedings for certain misrepresentations and fraud at admission that would otherwise render deportable a lawful permanent resident (LPR) or a self-petitioner under the Violence Against Women Act (VAWA).

The applicant is a native and citizen of Morocco who was admitted to the United States on a nonimmigrant visitor visa in 1999.  In July 2001, she married a United States citizen who then filed a visa petition on her behalf.  In 2002, the applicant was granted conditional permanent resident status pursuant to section 216(a) of the Act, 8 U.S.C. § 1186a(a) (2000). The conditional basis of respondent’s permanent residence was removed in 2005 by the approval of a jointly filed Form I-751 (Petition to Remove Conditions on Residence).

The Department of Homeland Security (“DHS”) filed a notice to appear with the Immigration Court on September 5, 2008, charging the respondent with being removable under section 237(a)(1)(A) of the Act, as an alien who is inadmissible based on fraud or misrepresentation under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2006).

This charge was based on allegations that the respondent procured her adjustment of status by fraud or by willfully misrepresenting a material fact when she married for the sole purpose of obtaining permanent residence in the United States.

The applicant sought to waive fraud that occurred after her initial entry into the United States as a nonimmigrant. The question was whether an adjustment of status can be an admission for purposes of the section 237(a)(1)(H) waiver.

Prior BIA decisions discussing the section 237(a)(1)(H) waiver involved aliens admitted to the United States with immigrant visas who were then charged with being removable for fraud or misrepresentation in that initial entry. See, e.g., Matter of Federiso, 24 I&N Dec. 661 (BIA 2008), overruled on other grounds, Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010); Matter of Fu, 23 I&N Dec. 985 (BIA 2006).

The BIA in this case concluded that an alien’s adjustment of status within the United States constitutes an admission for purposes of the waiver at section 237(a)(1)(H) of the Act.

The Section 237(a)(1)(H) waiver is thus not limited only to those aliens who engage in fraud or misrepresentation at the time of entry into the United States with an immigrant visa.  An alien who commits fraud in the course of adjusting status in the United States may waive removal under section 237(a)(1)(A) of the Act as an alien who was inadmissible at the time of adjustment of status based on fraud or misrepresentation.

Client Approval: I-601 Waiver for Fraud/Misrepresentation Approved for Same-Sex Couple

Client Approval: I-601 Waiver for Fraud/Misrepresentation Approved for Same-Sex Couple

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a Chinese client who was subject to the fraud/misrepresentation ground of inadmissibility under INA Section 212(a)(6)(C)(i).  He previously misrepresented the nature of his relationship with his same-sex partner during his application for a F-1 student visa.  He did so because he feared that his same-sex relationship might become known to the Chinese government if it was disclosed to the US Dept. of State.

After entering the U.S. as an international student on a validly approved F-1 visa, he married his partner and applied for adjustment of status to permanent residence.  The couple was denied at their adjustment of status interview when the facts of the prior misrepresentation became known to the interviewing USCIS officer.  The same-sex couple contacted my office at that point to prepare their I-601 “Extreme Hardship” waiver and submit it on their behalf.

An I-601 Application for Waiver pursuant to INA Section 212(i) 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.

In support of this couple’s I-601 waiver application, my office prepared a comprehensive 24-page legal brief going over how the facts and circumstances of the couple’s situation met the legal standards used to define “extreme hardship.”  We also discussed and presented evidence of the special circumstances same-sex couples are subject to, including the discrimination, harassment, and intimidation of LGBT individuals in China.  A table of exhibits also listed a variety of evidence in support of a showing of “extreme hardship” including:

  • Psychological evaluation by a clinical psychologist verifying the Generalized Anxiety Disorder and Dysthymic Disorder suffered by the U.S. citizen spouse, as well the critical emotional and psychological support provided by the foreign spouse (the waiver applicant)
  • The cultural and psychological background of the U.S. citizen spouse, including a substantial history of serious mental illness in his immediate family; and a life-long history of shame and loneliness due to his inability to come out to his friends and family
  • Medical confirmation of the debilitating physical symptoms suffered by the US citizen spouse including severe back pain, fatigue, and insomnia
  • A detailed discussion (substantiated by credible evidence) of the status of LGBT individuals in China and the repercussions this couple may suffer if they re-locate to China in order to be together
  • A detailed discussion (substantiated by credible evidence) of the lack of adequate mental health services in China and its potential impact on the US citizen spouse if he were to re-locate to China
  • A detailed breakdown of household expenses and debts, demonstrating the financial catastrophe that would result should the U.S. citizen spouse be unable to remain healthy and continue his professional work
  • The good moral character and rehabilitation of the applicant including the specific circumstances and motivation that led to the misrepresentation

As a result of our efforts, our client was approved for the I-601 waiver within 1 month of submission of the waiver by my office.  The applicant  was also subsequently approved for lawful permanent residence and now resides together with his spouse inside the U.S.

K-1 Fiancee Visa and Adjustment of Status Approved – Client Review by Robert Hanshew

All client testimonials are written by my former clients who you may request to contact and speak with, depending upon their personal schedules and preferences.

Mr.Cho, Just would like to thank you for our success in bringing  my girls both home to me, via, K-1 Visa and US Citizen born abroad.. and, our latest adjustment of status (after marriage)  In the case of Hanshew-Padios we are very grateful to you..We shall be using you’re services again this year to remove  the conditions on my wife’s permanent resident status.  Best wishes to you and yours in 2015 (the year of the Ram)

-Robert Hanshew

Parole In Place and the I-601 Waiver or I-601A Provisional Waiver

Parole In Place and the I-601 Waiver or I-601A Provisional Waiver

The USCIS has release a policy memorandum concerning the parole of  spouses, children and parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve.

INA § 212(d)(5)(A) gives the Secretary the discretion, on a case-by-case basis, to “parole” for “urgent humanitarian reasons or significant public benefit” an alien applying for admission to the United States.  Although it is most frequently used to permit an alien who is outside the United States to come into U.S. territory, parole may also be granted to aliens who are already physically present in the U.S. without inspection or admission.  This latter use of parole is sometimes called “parole in place.”

The basic authority for parole in place is INA § 212(d)(5)(A), which expressly grants discretion to parole “any alien applying for admission to the United States.”  INA § 235(a)(1), in turn, expressly defines an applicant for admission to include “an alien present in the United States who has not been admitted.”

According the new policy memorandum issued by the USCIS:

“As noted above, the decision whether to grant parole under INA § 212(d)(5)(A) is discretionary.  Generally, parole in place is to be granted only sparingly.  The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, however, ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual.  If USCIS decides to grant parole in that situation, the parole should be authorized in one-year increments, with re-parole as appropriate.”

Thus, for an alien who entered without inspection, a grant of parole under INA § 212(d)(5)(A) affects at least two of the eligibility requirements for adjustment of status.  First, adjustment of status requires that the person be “admissible.” INA § 245(a)(2).  Parole eliminates one ground of inadmissibility, section 212(a)(6)(A)(i).  Second, adjustment of status requires that the alien have been “inspected and admitted or paroled.” INA § 245(a).  The grant of parole under INA § 212(d)(5)(A) overcomes that obstacle as well.

The alien must still, however, satisfy all the other requirements for adjustment of status. One of those requirements is that, except for immediate relatives of United States citizens and certain other individuals, the person has to have “maintain[ed] continuously a lawful status since entry into the United States.” INA § 245(c)(2).  Parole does not erase any periods of prior unlawful status.

Consequently, an alien who entered without inspection will remain ineligible for adjustment, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exemptions.  Moreover, even an alien who satisfies all the statutory prerequisites for adjustment of status additionally requires the favorable exercise of discretion.

The practical effect of this memorandum is that immediate relatives of active or former members of the U.S. Armed Forces (or Selected Reserve of the Ready Reserve), who entered the U.S. “illegally” (without inspection or parole), can apply for adjustment of status inside the United States once parole in place has been granted.  They no longer need to travel back to their home country to consular process for their permanent residence.  This also means that the I-601A Provisional Waiver, or I-601 Extreme Hardship Waiver, is no longer required for this group of applicants, who would have been subject only to the unlawful presence ground of inadmissibility upon departure from the U.S.

Keep in mind that the I-601 waiver may still be required as part of the adjustment of status process for those subject to other grounds of inadmissibility, such as fraud/misrepresentation or conviction of a crime of moral turpitude.

I-601A Provisional Waiver May Not be Required for Some DACA Recipients

I-601A Provisional Waiver May Not be Required for Some DACA Recipients

The Legal Action Center has released a report which confirms a positive development for some DACA recipients who previously had only the option of applying for lawful permanent residence through the I-601A Provisional Waiver process.   I excerpt the relevant portions below:

“On June 15, 2012, the Secretary of the United States Department of Homeland Security (DHS) issued a memorandum allowing individuals who entered the United States before turning sixteen and who meet certain guidelines to pursue Deferred Action for Childhood Arrivals (DACA).  One of the benefits of DACA is that the recipient may seek permission to travel abroad temporarily for humanitarian, educational, or employment purposes.  A DACA recipient who seeks to temporarily leave and re-enter the United States must apply for advance parole.  If a DACA recipient travels abroad and returns under a grant of advance parole, then s/he is “paroled” into the United States within the meaning of INA §245(a), and may qualify for adjustment of status.”

“In Matter of Arrabally and Yerrabelly, the Board held that travel on advance parole does not constitute a “departure” for purposes of the 10-year-bar for unlawful presence under INA § 212(a)(9)(B)(i)(II).  While Matter of Arrabally and Yerrabelly addressed advance parole in the context of adjustment applications, the USCIS Administrative Appeals Office (AAO) has since applied this analysis in at least several cases involving individuals holding Temporary Protected Status (TPS), each of whom left temporarily following the accumulation of more than one year of unlawful presence and then returned to the United States under advance parole.  Based on Matter of Arrabally and Yerrabelly, the AAO found that these applicants were not inadmissible and that waivers of inadmissibility were not necessary.

Although there has been no formal written guidance on this issue yet, it appears likely that USCIS views Matter of Arrabally and Yerrabelly as applicable to DACA recipients traveling on advance parole.  Indeed, some DACA recipients have received advance parole authorizations (Form I-512L) explicitly stating that traveling abroad under advance parole is not a departure within the context of INA § 212(a)(9)(B), pursuant to Matter of Arrabally and Yerrabelly.”

Thus, advance parole may make some DACA recipients gain the dual benefit of eliminating exposure to the 3 or 10 year unlawful presence bars they are subject to pursuant to INA § 212(a)(9)(B); and gaining eligibility for adjustment of status, thereby eliminating the need to consular process through the U.S. embassy in their home country.

This positive development ONLY applies for DACA recipients who are the spouses of U.S. citizens or children (unmarried and under 21 years of age) of U.S. citizen parents, who are not subject to any other grounds of inadmissibility (aside from the 3 or 10 year unlawful presence bar under INA § 212(a)(9)(B)).  This group may no longer need to apply for lawful permanent residence through the I-601A Provisional Waiver process.  Instead, they can now apply for advance parole; depart from the U.S.; and re-enter the country to proceed with their adjustment of status to lawful permanent residence within the United States.

Keep in mind that the inspecting immigration officer at the port of entry may deny entry into the United States if the officer finds that any of the inadmissibility grounds apply.  Thus, even after being granted advance parole as a DACA recipient, you should make absolutely sure you are not subject to any of the other grounds of inadmissibility before departure from the U.S.

For example, there should be no outstanding orders of removal on file.  You should not be subject to previously incurred immigration bars, such as the unlawful presence bars under INA § 212(a)(9)(B) or the permanent bar under INA § 212(a)(9)(C), based a prior departure before obtaining advance parole.  You should not be subject to the criminal grounds of inadmissibility under INA § 212(a)(2) or for fraud/misrepresentation under INA § 212(a)(6)(C).  It is important that an immigration lawyer with particular expertise in waivers and the immigration grounds of inadmissibility guide you through this process.  Matter of Arrabally and Yerrabelly is not a precedent decision and you must proceed with caution.