Exercise of Discretion by the USCIS Officer on Immigrant Waivers

Exercise of Discretion by the USCIS Officer on Immigrant Waivers

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

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

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

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

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

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

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

  1. The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in 8 CFR 212.7(e) and warrant a favorable exercise of discretion.
  2. INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who:
    1. has a parent, spouse, son, or daughter who is a U.S. citizen or lawful permanent resident of the United States; and
    2. the parent, spouse, son, or daughter would suffer “extreme hardship” on account of the alien’s ineligibility to immigrate
    3. Waiver applicants must also show that their application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in his or her case.
  3.  INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) authorizes the Secretary to waive the 3- and 10-year unlawful presence bars for individuals seeking admission to the United States as immigrants if they can show that the refusal of admission would result in extreme hardship to a qualifying U.S. citizen or LPR spouse or parent, and provided that the applicant warrants a favorable exercise of discretion. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

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

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

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

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

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

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

• Significant health concerns that affect the qualifying relative.

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

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

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

• Reformation of character and rehabilitation.

• Community service beyond any imposed by the courts.

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

• Lack of reformation of character or rehabilitation.

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

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

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

Discretionary Factors

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

Discretionary Determination

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

Example

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

Example

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

Example

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

Example

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

Cases Involving Violent or Dangerous Crimes

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

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

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

I-601 “Extreme Hardship” Waiver Approved after Comprehensive Request for Evidence (RFE) Response

I-601 "Extreme Hardship" Waiver Approved after Comprehensive Request for Evidence (RFE) Response

I was contacted by a couple after their I-601 “extreme hardship” waiver application (prepared and filed by another law firm) was deemed insufficient for approval of their I-601 waiver.  The waiver applicant from Turkey previously overstayed in the United States by more than one year due to a misunderstanding of how long his authorized period of stay was granted for.  He later departed the U.S. due to a family emergency.  While abroad, he married his U.S. citizen fiancee and attempted to return to the United States, whereupon he was informed that he was subject to the 10 year unlawful presence bar.

The couple retained our law firm to prepare a thorough response to the Request for Evidence (RFE) issued by the USCIS.  We prepared a comprehensive 29 page response to the Request for Evidence (RFE), addressing each of the issues raised by the USCIS and providing supporting documentation to objectively prove every important assertion made in our response.

The Request for Evidence issued by the USCIS is instructive to examine in more detail as it shows the level of detail and preparation needed to obtain approval of an I-601 waiver.  Relevant portions of the RFE is provided below:

You have been found inadmissible to the United States under Section 212(a)(9)(8) 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.

Your application does not include sufficient evidence that your qualifying relative spouse would suffer extreme hardship if you are refused admission to the United States.

Although it appears your qualifying relative spouse is experiencing some type of hardship; we are unable to determine whether or not the hardship rises to the level of extreme hardship. An affidavit is not enough to establish extreme hardship because it lacks sufficient detail, is general in nature, and is absent accompanying documentation. The evidence should explain how the hardship is greater the common results of family separation due to a visa refusal.

An affidavit was not submitted by your qualifying relative spouse.  Therefore we do not have enough evidence to establish extreme hardship to your qualifying relative spouse.  Provide evidence to explain why it would be an “extreme hardship” for your qualifying relative spouse to be absent your financial support as well as evidence of any emotional problems you are experiencing that would rise to the level of an “extreme hardship” if you were not allowed to relocate to the U.S.  ln his affidavit he says that you will struggle on several levels; however, you did not submit any proof of financial obligations, a breakdown of your income and expenses and more detail of the hardship.

Absent from the record is an explanation of how traveling to visit you would rise to the level of an  “extreme hardship”.

The evidence does not indicate that your qualifying relative spouse is facing any one hardship that is extreme (in and of itself). It also does not establish that there are sufficient hardships (cumulatively) that would rise to the level of extreme in the aggregate. (If your spouse is facing additional hardships, please submit evidence of them.)

Note: Extreme Hardship is required for the approval of Form 1-601, not just hardship. Extreme hardship is a hardship that is unusual or beyond that which would normally be expected upon removal or exclusion.

Factors USCIS considers when determining extreme hardship include but are not limited to:

  • Health – Ongoing or specialized treatment required for a physical or mental condition; availability and quality of such treatment in the country to which removed; anticipated duration of the treatment; chronic vs. acute vs. 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 care for family members (elderly and sick 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 or grade; availability of special requirements, such as training programs or internships in specific fields.
  • Personal Considerations – Close relatives in the United States and country of removal; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
  • Special Factors – Cultural, language, religious. and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures (official or unofficial) for support, guidance, or protection.

1) Please submit a statement explaining in detail the hardships your qualifying relative would experience if you are denied admission to the United States. The statement should explain how the hardship is greater than the common results of family separation due to a visa refusal.

2) Please submit evidence to support the statements made. Such evidence may include but is not limited to:

  • Affidavits from the qualifying relative or other individuals with personal knowledge of the claimed hardships
  • Expert opinions
  • Evidence of employment or business ties such as payroll records or tax statements
  • Evidence of monthly expenditures such as mortgage, rental agreement, bills and invoices. etc.
  • Other financial records supporting any claimed financial hardships
  • Medical documentation and/or evaluations by medical professionals supporting any claimed medical hardships
  • Records of membership in community organizations, volunteer confirmation, and evidence of cultural affiliations
  • Birth/marriage/adoption certificates supporting any claimed family ties
  • Country condition reports
  • Any other evidence you believe supports the claimed hardships

Please note that USCIS will only consider hardships that affect the qualifying relative(s) upon which you are basing your eligibility. If you describe hardship to yourself or another individual, you must also explain how those factors affect the qualifying relative(s).

Your application does not include sufficient evidence that a favorable exercise of discretion is warranted in your case.

3) Please submit a statement explaining the favorable factors of your case and why you believe the favorable factors outweigh unfavorable factors in your case (including the initial inadmissibility finding).

4) Please submit any evidence to support your statement.

Favorable factors may include, but are not limited to:

  • Family ties in the United States and the closeness of the underlying relationships
  • Unusual hardship to yourself or to U.S. citizen or lawful permanent resident relatives and employers
  • Evidence of reformation and rehabilitation
  • Length of lawful residence in the United States and status held during that residence (particularly where the applicant began his or her residency at a young age)
  • Evidence of respect for law and order, good moral character, and intent to hold family responsibilities (such as affidavits from family, friends, and responsible community representatives)
  • Considerable passage of time since the activities occurred which were the basis of the inadmissibility finding
  • The absence of significant undesirable or negative factors

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.

As part of our response to the USCIS-issued Request for Evidence (RFE), we demonstrated that the US citizen suffers from both physical and psychiatric disorders that significantly impairs her daily functioning at home, work, and in the community.  We also highlighted the fact that she has suffered from psychiatric disorder since childhood, with a long history of anxiety, depression, and substance abuse, which also runs in her family.

We showed how the U.S. citizen is at serious risk of lapsing back into substance abuse without the daily physical, emotional, and psychological support provided by her husband.  We also analyzed her household income, expenses, and debt, and showed the financial disaster she would suffer should she be forced to relocate to her husband’s home country of Turkey; or alternatively, remain in the U.S. without her spouse and be subject to the inevitable consequences of her worsening psychological and physical health without his daily support.  We also presented a detailed country conditions report of Turkey, demonstrating how the specific circumstances of our client’s health, financial status, and background would be impacted by her possible re-location to Turkey.

As a result of our efforts in responding to a very difficult Request for Evidence (RFE), this I-601 waiver was approved and the couple now reside lawfully inside the U.S.

I-601A Provisional Waiver Approved Based on Medical, Psychological, and Financial Hardships

I-601A Provisional Waiver Approved Based on Medical, Psychological, and Financial Hardships

Our office recently received approval of the I-601A Provisional Waiver for our client who is married to a U.S. citizen spouse.  We were contacted after the U.S. citizen petitioner filed the I-130 Petition for Immediate Relative and was awaiting approval of the immigrant visa petition by the USCIS.

During this preliminary processing period,  we provided our clients with our Waiver Worksheets, which contains a comprehensive set of important questions to answer and supporting documents to gather, based on our 14+ years of experience preparing winning I-601, I-212, 212(d)(3), and other immigration waivers on behalf of our clients.

Our office subsequently drafted and submitted the I-601A Provisional Waiver application package which included: a complete set of USCIS forms requesting consideration for the I-601A Provisional Waiver; a 27 page waiver statement detailing relevant case law favorable to my client’s situation and presenting the extreme hardships that applied to this case; and a comprehensive collection of exhibits to prove the extreme hardships being presented.   Throughout the waiver, we incorporated an eloquent presentation of the couple’s life story that highlighted the unique facets of this case, personalized their plight, and showed why the U.S. citizen would be particularly vulnerable to the hardships triggered by separation or relocation.

The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in 8 CFR 212.7(e) and warrant a favorable exercise of discretion.

To be eligible for the I-601A Provisional Waiver for Unlawful Presence, you must fulfill ALL of the following conditions:

  1. Be 17 years of age or older.
  2. Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available).  An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
  3. Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
  4. Have a pending immigrant visa case with the Dept. of State for the approved immediate relative petition and have paid the Dept. of State immigrant visa processing fee.
  5. Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
  6. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
  7. Not have been scheduled for an immigrant visa interview by Dept. of State before January 3, 2013.
  8. You are inadmissible ONLY for unlawful presence in the United States for more than 180 days but less than 1 year during a single stay (INA Section 212(a)(9)(B)(i)(I)), or unlawful presence in the United States for 1 year or more during a single stay (INA Section 212(a)(9)(B)(i)(II).

The favorable factors of this case includes some of the following:

  • the U.S. citizen wife cannot not endure long-term separation from her spouse, were he required to leave the U.S., because she has become medically, psychologically, and emotionally dependent on him.
  • the U.S. citizen wife suffers from a variety of physical ailments and psychological disorders, that would be exacerbated by the stress of separation or relocation.
  • the U.S. citizen wife would be in danger of defaulting on her student loan and other debt payments should her physical and psychological state deteriorate further.
  • the U.S. citizen wife would live in fear of violent assault in the country of her husband should she be forced to re-locate to his home country.
  • the U.S. citizen wife would lose access to quality health care needed to monitor her various physical and mental disorders
  • the U.S. citizen wife would be wholly separated from her ill parents and family in the U.S.

It should be noted that the way extreme hardships are presented, discussed, and proven often “make or break” an I-601A Provisional Waiver Application.  Extreme hardships should be highlighted and elaborated upon in a realistic and credible manner.  Every hardship should also be shown to exist and possibly grow worse in two scenarios: if the qualifying relative is separated from the applicant and if the qualifying relative has to re-locate to another country in order to be with the applicant.  Every hardship statement made should be proven with objective evidence that is included in a comprehensive collection of Exhibits.

As a result of the comprehensive package we prepared and submitted on behalf of our client, this I-601A Provisional Waiver application was approved.

USCIS Expansion of the I-601A Provisional Waiver Program In-Depth

USCIS Expansion of the I-601A Provisional Waiver Program In-Depth

Selected discussions on the recent expansion of the I-601A Provisional Waiver process by the USCIS follow below:

The provisional unlawful presence waiver (“provisional waiver”) process allows certain individuals who are present in the United States to request from U.S. Citizenship and Immigration Services (USCIS) a provisional waiver of these grounds of inadmissibility before departing the United States for consular processing of their immigrant visas – rather than applying for a waiver abroad after their immigrant visa interviews using the Form I-601, Waiver of Grounds of Inadmissibility (“Form I-601 waiver process”).

The provisional waiver process is designed to encourage unlawfully present individuals to leave the United States, attend their immigrant visa interviews, and return to the United States legally to reunite with their U.S. citizen or lawful permanent resident (LPR) family members.

Having an approved provisional waiver helps facilitate immigrant visa issuance at DOS, streamlines both the waiver and the immigrant visa processes, and reduces the time that applicants are separated from their U.S. citizen or LPR family members, thus promoting family unity.

Generally, individuals who are in the United States and seeking lawful permanent resident (LPR) status must either obtain an immigrant visa abroad through what is known as “consular processing” with the Department of State (DOS) or apply to adjust their immigration status to that of an LPR in the United States, if eligible. Individuals present in the United States without having been inspected and admitted or paroled are typically ineligible to adjust their status in the United States.

To obtain LPR status, such individuals must leave the United States for immigrant visa processing at a U.S. Embassy or consulate abroad. But because these individuals are present in the United States without having been inspected and admitted or paroled, their departures may trigger a ground of inadmissibility based on the accrual of unlawful presence in the United States under INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i).

Under subclause (I) of this provision, an individual who has been unlawfully present in the United States for more than 180 days but less than one year, and who then departs voluntarily from the United States before the commencement of removal proceedings, is inadmissible for 3 years from the date of departure. See INA section 212(a)(9)(B)(i)(I), 8 U.S.C. 1182(a)(9)(B)(i)(I).

Under subclause (II), an individual who has been unlawfully present in the United States for one year or more and then departs the United States (before, during, or after removal proceedings), is inadmissible for 10 years from the date of the departure. See INA section 212(a)(9)(B)(i)(II), 8 U.S.C. 1182(a)(9)(B)(i)(II).

These “3- and 10-year unlawful presence bars” do not take effect unless and until the individual departs from the United States. See, e.g., Matter of Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 2006).

The Secretary of Homeland Security (Secretary) may waive this ground of inadmissibility for an individual who can demonstrate that the refusal of his or her admission to the United States would result in extreme hardship to his or her U.S. citizen or LPR spouse or parent. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v).

Prior to the creation of the provisional waiver process in 2013, any individual who was seeking an immigrant visa and became inadmissible under the 3- or 10-year unlawful presence bar upon departure from the United States, could apply for a waiver of such inadmissibility from DHS by filing an Application for Waiver of Grounds of Inadmissibility, Form I-601, with USCIS, but only after having attended the consular immigrant visa interview abroad. Those who applied for waivers under this “Form I-601 waiver process” were effectively required to remain abroad for at least several months while USCIS adjudicated their waiver applications.

For some individuals, the Form I-601 waiver process led to lengthy separations of immigrant visa applicants from their family members, causing some U.S. citizens and LPRs to experience the significant emotional and financial hardships that Congress aimed to avoid when it authorized the waiver. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) (providing for an inadmissibility waiver, “if it is established to the satisfaction of the Attorney General 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”).

For this reason, many relatives of U.S. citizens and LPRs who are eligible to obtain LPR status may be reluctant to travel abroad to seek immigrant visas and obtain such status. The Form I-601 waiver process also created processing inefficiencies for both USCIS and DOS through repeated interagency communication and through multiple consular appointments or interviews.

On July 22, 2015, DHS proposed to expand the class of individuals who may be eligible for provisional waivers beyond certain immediate relatives of U.S. citizens to all statutorily eligible individuals regardless of their immigrant visa classification. DHS also proposed to expand the class of individuals who could obtain provisional waivers, consistent with the statutory waiver authority, by permitting consideration of extreme hardship not only to U.S. citizen spouses or parents, but also to LPR spouses or parents.

In this final rule, DHS adopts the changes discussed in the proposed rule with several modifications in response to comments submitted on the proposed rule. The new modifications include:

1) Clarifying that all individuals seeking provisional waivers, including those in removal proceedings before the Executive Office for Immigration Review (EOIR), must file applications for provisional waivers with USCIS.

2) Allowing individuals to apply for provisional waivers even if USCIS has a reason to believe that they may be subject to other grounds of inadmissibility.

3) Eliminating the proposed temporal limitations that would have restricted eligibility for provisional waivers based on DOS visa interview scheduling.

4) Allowing individuals with final orders of removal, exclusion, or deportation to be eligible for provisional waivers provided that they have already applied for, and USCIS has approved, an Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I-212.

5) Clarifying that DHS must have actually reinstated a removal, deportation, or exclusion order in order for an individual who has returned to the United States unlawfully after removal to be ineligible for a provisional waiver on that basis.

In addition, DHS made several technical and non-substantive changes.

Newly eligible provisional waiver applicants and their U.S. citizen or LPR family members will benefit from this rule. Those applying for provisional waivers will receive advance notice of USCIS’ decision to provisionally waive their 3- or 10-year unlawful presence bar before they leave the United States for their immigrant visa interview abroad. This offers applicants and their family members the certainty of knowing that the applicants have been provisionally approved for waivers of the 3- and 10-year unlawful presence bars before departing from the United States.

Individuals with approved provisional waivers may experience shortened periods of separation from their family members living in the United States while they pursue issuance of immigrant visas abroad, thus reducing any related financial and emotional strains on the families.

Eligibility for the Provisional Waiver

1. Categories of Eligible Individuals

The Secretary is authorized to waive the 3- and 10-year unlawful presence bars for individuals seeking admission to the United States as immigrants if they can show that the refusal of admission would result in extreme hardship to a qualifying U.S. citizen or LPR spouse or parent, and provided that the applicant warrants a favorable exercise of discretion. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v).

With this final rule, DHS is allowing all individuals who are statutorily eligible for an immigrant visa and who meet the legal requirements for a waiver under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), to seek a provisional waiver in accordance with new 8 CFR 212.7(e). Consistent with the current provisional waiver process, provisional waivers are available only to those who are present in the United States, who must apply for immigrant visas at U.S. embassies or consulates abroad, and who at the time of the immigrant visa interview may be inadmissible based on the accrual of unlawful presence under INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i).

DHS can only expand the pool of individuals eligible for this process to those who fall within one of the current statutory immigrant visa classifications and who meet the requirements for the unlawful presence waiver described in INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). DHS cannot expand eligibility to those who are not statutorily eligible for such waivers under current law.

Similarly, DHS cannot change who is statutorily eligible to adjust status in the United States. Intending immigrants who are present in the United States but ineligible to adjust status must depart the United States and obtain their immigrant visas through consular processing abroad; approval of a provisional waiver does not change this requirement. See INA sections 104, 202(a)(1)(B), 211, 221, 222 and 245; 8 U.S.C. 1104, 1152(a)(1)(B), 1181, 1201, 1202, and 1255. See generally 8 CFR part 245; 22 CFR part 42.

To clarify, in the proposed rule, DHS sought to include all beneficiaries of approved immigrant visa petitions who are statutorily eligible for a waiver of the 3- and 10-year unlawful presence bars, regardless of age, marital status, or immigration status. Individuals with approved immigrant visa petitions, including sons and daughters (married or unmarried) of U.S. citizens, as well as those who have been selected to participate in the Diversity Visa program, may participate in the provisional waiver process provided they meet the requirements stated in 8 CFR 212.7(e). Consistent with its statutory authority under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), DHS will no longer limit the provisional waiver process to certain immediate relatives of U.S. citizens.

2. Reason-to-Believe Standard

DHS has decided to eliminate the reason-to-believe standard as a basis for denying provisional waiver applications. Accordingly, when adjudicating such applications, USCIS will only consider whether extreme hardship has been established and whether the applicant warrants a favorable exercise of discretion.

However, although this final rule eliminates the reason-to believe standard, the final rule retains the provision that provides for the automatic revocation of an approved provisional waiver application if the DOS consular officer ultimately determines that the applicant is ineligible for the immigrant visa based on other grounds of inadmissibility. See 8 CFR 212.7(e)(14)(i).

DHS thus cautions and reminds individuals that even if USCIS approves a provisional waiver application, DOS may still find the applicant inadmissible on other grounds at the time of the immigrant visa interview. If DOS finds the applicant ineligible for the immigrant visa or inadmissible on grounds other than unlawful presence, the approval of the provisional waiver application is automatically revoked. In such cases, the individual may again apply for a waiver of the unlawful presence ground of inadmissibility, in combination with any other waivable grounds of inadmissibility, by using the Form I-601 waiver process.

As in all discretionary matters, DHS also has the authority to deny provisional waiver applications as a matter of discretion even if the applicant satisfies the eligibility criteria. See 8 CFR 212.7(e)(2)(i). Additionally, USCIS may reopen and reconsider its decision to approve or deny a provisional waiver before or after the waiver becomes effective if it is determined that the decision was made in error. See 8 CFR 212.7(e)(13) and 8 CFR 212.7(a)(4)(v).

As has always been the case, DHS will continue to uphold the integrity and security of the provisional waiver process by conducting full background and security checks to assess whether an individual may be a threat to national security or public safety. If the background check or the individual’s immigration file reveals derogatory information, including a criminal record, USCIS will analyze the significance of the information and may deny the provisional waiver application as a matter of discretion.

Finally, the extreme hardship and discretionary eligibility assessments made during a provisional waiver adjudication could be impacted by additional grounds of inadmissibility and other information that was not known and therefore not considered during the adjudication.

Accordingly, USCIS is not bound by these determinations when adjudicating subsequent applications filed by the same applicant, such as an application filed to waive grounds of inadmissibility, including a waiver of the unlawful presence grounds of inadmissibility. In other words, because separate inadmissibility grounds and material information not before USCIS at the time of adjudication may alter the totality of the circumstances present in an individual’s case, a prior determination that an applicant’s U.S. citizen or LPR spouse would suffer extreme hardship if the applicant were refused admission (and that the applicant merits a provisional waiver as a matter of discretion) does not dictate that USCIS must make the same determination in the future, although the factors and circumstances underlying the prior decision may be taken into account when reviewing the cases under the totality of the circumstances.

3. DHS is eliminating the restrictions based on the date that DOS acted to schedule the immigrant visa interview.

USCIS will adjust its processing of petitions and applications so that neither DOS nor USCIS will be adversely affected by the elimination of this restriction. Please note, however, that elimination of these date restrictions does not alter other laws and regulations relating to the availability of immigrant visas. Applicants will still be unable to obtain immigrant visas until an immigrant visa number is available based on the applicant’s priority date. Applicants will need to act promptly, once DOS notifies them that they can file their immigrant visa application. If applicants do not apply within one year of this notice, DOS has authority to terminate their registration for an immigrant visa. See INA section 203(g), 8 U.S.C. 1153(g); see also 22 CFR 42.8(a). That action will also result in automatic revocation of the approval of the related immigrant visa petition. 8 CFR 205.1(a)(1).

In such a situation, applicants will have two options for continuing to pursue a provisional waiver. One option is for an applicant to ask DOS to reinstate the registration pursuant to 22 C.F.R. 42.83(d). If DOS reinstates the registration, approval of the immigrant visa petition is also reinstated. Once such an applicant has paid the immigrant visa processing fee for the related immigrant visa application, the applicant can apply for a provisional waiver. A second option is for the relevant immigrant visa petitioner to file a new immigrant visa petition with USCIS. If USCIS approves the new immigrant visa petition, the beneficiary could then apply for the provisional waiver after paying the immigrant visa processing fee based on the new petition if otherwise eligible.

4. Individuals in Removal Proceedings

On November 20, 2014, the Secretary directed the Department’s immigration components—USCIS, ICE, and CBP—to exercise prosecutorial discretion, when appropriate, as early as possible in proceedings to ensure that DHS’s limited resources are devoted to the greatest degree possible to the pursuit of enforcement priorities.  Prosecutorial discretion applies not only to the decision to issue, serve, file, or cancel an NTA, but also to other broad
ranges of discretionary measures.  To promote docket efficiency and to ensure that finite enforcement resources are used effectively, ICE carefully reviews cases pending before the Department of Justice’s Executive Office for Immigration Review (EOIR) to ensure that all cases align with the agency’s enforcement and removal policies. As such, once an NTA is issued, ICE attorneys are directed to review the case, at the earliest opportunity, for the potential exercise of prosecutorial discretion.

The Department of Justice (DOJ) likewise instructs its immigration judges to use available docketing tools to ensure fair and timely resolution of cases, and to ask ICE attorneys at master calendar hearings whether ICE is seeking dismissal or administrative closure of a case.  In general, those who are low priorities for removal and are otherwise eligible for LPR status may be able to apply for provisional waivers.  Among other things, ICE may agree to administratively close immigration proceedings for individuals who are eligible to pursue a provisional waiver and are not currently considered a DHS enforcement priority.  ICE also works to facilitate, as appropriate, the timely termination or dismissal of administratively closed removal proceedings once USCIS approves a provisional waiver.

DHS believes the aforementioned steps being undertaken by ICE and EOIR to determine whether cases should be administratively closed effectively balances the commenters’ provisional waiver eligibility concerns and agency resources in considering the exercise of prosecutorial discretion. Consequently, this rule has not changed the provisional waiver process and will not permit individuals in active removal proceedings to apply for or receive provisional waivers, unless their cases are administratively closed. The Department believes that current processes provide ample opportunity for eligible applicants to seek a provisional waiver, while improving the allocation of government resources and ensuring national security, public safety, and border security.

5. Individuals Subject to Final Orders of Removal, Deportation, or Exclusion

As a preliminary matter, DHS notes that requiring the filing of separate Forms I-601A and I-212 simply reflects the fact that they are intended to address two separate grounds of inadmissibility, each with different waiver eligibility requirements. In response to the comments, however, DHS has amended the rule to allow individuals with final orders of removal, deportation, or exclusion to apply for provisional waivers if they have filed a Form I- 212 application seeking consent to reapply for admission and such an application has been conditionally approved.

Anyone who departs the United States while a final order is outstanding is considered to have executed that order. See INA section 101(g), 8 U.S.C. 1101(g); 8 CFR 241.7. The execution of such an order renders the individual inadmissible to the United States for a period of 5-20 years under INA section 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A). Certain individuals, however, may seek consent to reapply for admission to the United States before the period of inadmissibility has expired. See INA section 212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii).

DHS regulations provide a process for those in the United States to apply for such consent by filing a Form I-212 application before departing the United States. See 8 CFR 212.2(j). As with the provisional waiver process, the pre-departure approval of a Form I-212 application is conditioned on the applicant subsequently departing the United States.

Thus, if an individual who is inadmissible under INA section 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A), obtains a conditional approval of his or her Form I-212 application while in the United States and thereafter departs to attend the immigrant visa interview abroad, he or she generally is no longer inadmissible under that section at the time of the immigrant visa interview and can be issued an immigrant visa.

Given that an applicant still has to demonstrate visa eligibility, including admissibility, at the time of the immigrant visa interview and that DHS has decided to eliminate the reason-to-believe standard, the Department believes the goals of the provisional waiver process are supported by making it available to those with final orders only if they already have conditionally approved a Form I-212 application. The final rule thus extends eligibility for provisional waivers to such individuals. See 8 CFR 212.7(e)(4)(iv).

Such an individual, however, must have the conditionally approved Form I-212 application at the time of filing the provisional waiver application. See 8 CFR 212.7(e)(4)(iv). USCIS will deny a provisional waiver application if the applicant’s Form I-212 application has not yet been conditionally approved at the time the individual files his or her provisional waiver application. Additionally, if during the immigrant visa interview the consular officer finds that the applicant is inadmissible on other grounds that have not been waived, the approved provisional waiver will be automatically revoked. See 8 CFR 212.7(e)(14)(i).

Finally, DHS notes that approval of Forms I-601A and I-212 does not waive inadmissibility under INA section 212(a)(9)(C), 8 U.S.C 1182(a)(9)(C), for having returned to the United States without inspection and admission or parole after a prior removal or prior unlawful presence. See INA section 212(a)(9)(C)(ii), 8 U.S.C 1182(a)(9)(C)(ii); Matter of Briones, 24 I&N Dec. 355 (BIA 2007); Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006).

6. Individuals Granted Voluntary Departure

DHS has determined that individuals granted voluntary departure will not be eligible for provisional waivers. First, if an individual obtains voluntary departure while in removal proceedings, the immigration judge is required by law to enter an alternate order of removal. See 8 CFR 1240.26(d). DHS cannot execute the alternate order of removal during the voluntary departure period because such an order is not yet in effect. But if the individual does not depart as required under the order of voluntary departure, the alternate order of removal automatically becomes fully effective without any additional proceeding. See 8 CFR 1240.26(d). Thus, an individual who fails to leave as required under a grant of voluntary departure will have an administratively final order of removal, and will thus be ineligible for a provisional waiver. See INA section 240B(d)(1), 8 U.S.C. 1229c(d)(1); 8 CFR 212.7(e)(4)(iv).

Under current law, removal proceedings for such individuals are considered to have ended when the grant of voluntary departure, with an alternate removal order, becomes administratively final. See INA sections 101(a)(47), 240(c)(1)(A), 8 U.S.C. 1101(a)(47), 1229(a)(c)(1)(A); 8 CFR 241.1, 1003.39, 1241.1; Matter of Shih, 20 I&N Dec. 697 (BIA 1993).

Second, a fundamental premise for a grant of voluntary departure is that the individual who is granted voluntary departure intends to leave the United States as required. See INA section 240B(b)(1)(D), 8 U.S.C. 1229c(b)(1)(D); Dada v. Mukasey, 554 U.S. 1, 18 (2008).  Allowing an individual whose voluntary departure period has not expired to apply for a provisional waiver would suggest that the individual is excused from complying with the order of voluntary departure. This result would contradict the purpose of voluntary departure— allowing the subject to leave promptly without incurring the future inadmissibility that results from removal. For these reasons, DHS did not modify the rule to allow those with grants of voluntary departure to apply for provisional waivers.

I-601A Provisional Waiver Approved for Nicaraguan Based on Psychological & Financial Hardships

I-601A Provisional Waiver Approved for Nicaraguan Applicant Based on Proving Extreme Psychological & Financial Hardship to U.S. Citizen Wife.

Our office received approval of the I-601A Provisional Waiver for a Nicaraguan applicant married to a U.S. citizen wife.  As part of the Provisional Waiver process, we first provided our clients with a detailed letter going over every step of the immigrant visa process (including a checklist of supporting documents to gather and return to our office).  We then expeditiously prepared the I-130 Petition for Alien Relative and filed it with the USCIS on behalf of our clients.

The I-130 Petition for Alien Relative was approved by the USCIS approximately 5 months after submission by our office.  About 1 month after USCIS approval of the I-130 Petition, the National Visa Center received the approved immigrant visa case from the USCIS and issued its Immigrant Visa and Affidavit of Support fee bills.  After payment of the Immigrant Visa fee by the applicant, our office submitted the I-601 Provisional Waiver application package which included: a complete set of USCIS forms requesting consideration for the I-601A Provisional Waiver; a 31 page waiver statement detailing relevant case law favorable to my client’s situation and presenting the extreme hardships that applied to this case; and a comprehensive collection of exhibits to prove the extreme hardships being presented.

Approval of the I-601 Provisional Waiver application was received just 4 months after submission by our office.

The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in 8 CFR 212.7(e) and warrant a favorable exercise of discretion.

To be eligible for the I-601A Provisional Waiver for Unlawful Presence, you must fulfill ALL of the following conditions:

  1. Be 17 years of age or older.
  2. Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available).  An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
  3. Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
  4. Have a pending immigrant visa case with the Dept. of State for the approved immediate relative petition and have paid the Dept. of State immigrant visa processing fee.
  5. Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
  6. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
  7. Not have been scheduled for an immigrant visa interview by Dept. of State before January 3, 2013.
  8. You are inadmissible ONLY for unlawful presence in the United States for more than 180 days but less than 1 year during a single stay (INA Section 212(a)(9)(B)(i)(I)), or unlawful presence in the United States for 1 year or more during a single stay (INA Section 212(a)(9)(B)(i)(II).

In this case, the applicant is a Nicaraguan national who entered the United States without inspection to earn money and support his mother back in his home country.  The favorable factors of this case includes some of the following:

  • The Nicaraguan husband has extensive familial ties in the United States including his daughter, his father, his step-mother, his paternal grandmother, his uncles, and several nephews and nieces, all of whom reside legally in the U.S.
  • The U.S. citizen wife is responsible for the daily living and medical needs of her ill mother, who suffers from severe hearing loss and has a long history of mental illness.  She also assists her mother financially as best she can.
  • The married couple have a significant amount of debt and the Nicaraguan husband’s monthly income constitutes over 50% of the family’s total monthly income.  Without the money the husband earns, the U.S. citizen wife would default on her mortgage, student loans, and credit card debt, as well as on the secured loans on their car and house.
  • The U.S. citizen wife has a history of serious illness that required surgery in the past.  She needs regular check-ups as her illness may return.
  • The Nicaraguan husband has no criminal record, volunteers at his local church, and has a history of productive employment in the U.S.
  • The psychological state of the U.S. citizen wife is fragile and she risks serious mental decompensation and psychotic symptoms should she be separated from husband.
  • The married couple have an infant daughter who they raise together who would also be impacted emotionally by re-location or separation from her father.
  • Re-location of the family to Nicaragua would place the U.S. citizen wife (and their daughter) at risk of psychological distress, financial collapse, and victimization to crime.  It would seroiusly endanger the well-being and lives of three U.S. citizens.

It should be noted that the way extreme hardships are presented, discussed, and proven often “make or break” an I-601A Provisional Waiver Application.  Extreme hardships should be highlighted and elaborated upon in a realistic and credible manner.  Every hardship should also be shown to exist and possibly grow worse in two scenarios: if the qualifying relative is separated from the applicant and if the qualifying relative has to re-locate to another country in order to be with the applicant.  Every hardship statement made should be proven with objective evidence that is included in a comprehensive collection of Exhibits.

As a result of the comprehensive package we prepared and submitted on behalf of the Applicant, this I-601A Provisional Waiver application was approved.

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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Client Approval: I-601A Provisional Waiver Approved for Honduran Spouse

Client Approval: I-601A Provisional Waiver Approved for Honduran Spouse

We recently received approval of the I-601A Provisional Waiver that we prepared and submitted on behalf of a Honduran client who is married to his U.S. citizen spouse.

The I-601A Provisional Waiver application package prepared by our law firm included:

  • a complete set of USCIS forms requesting consideration of the I-601A Provisional Waiver;
  • a 31 page waiver statement detailing relevant case law favorable to my client’s situation as well as the presenting the extreme medical, psychological, financial, and other hardships that compelled approval of our I-601A Provisional Waiver application;
  • an expert emphasis on the unique and favorable discretionary factors that applied to this case based on our 12+ years of preparing winning “extreme hardship” waivers on behalf of our clients; and
  • a comprehensive collection of organized exhibits to prove the extreme hardships and favorable discretionary factors being presented.

To be eligible for the I-601A Provisional Waiver for Unlawful Presence, an applicant must fulfill ALL of the following conditions:

  1. Be 17 years of age or older.
  2. Be the spouse, child, or adult child of a U.S. citizen or lawful permanent resident.
  3. Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
  4. Have a pending immigrant visa case with the Dept. of State for the approved immediate relative petition and have paid the Dept. of State immigrant visa processing fee.
  5. Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or lawful permanent spouse or parent.
  6. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
  7. Not have been scheduled for an immigrant visa interview by Dept. of State before January 3, 2013.
  8. You are inadmissible ONLY for unlawful presence in the United States for more than 180 days but less than 1 year during a single stay (INA Section 212(a)(9)(B)(i)(I)), or unlawful presence in the United States for 1 year or more during a single stay (INA Section 212(a)(9)(B)(i)(II).

An applicant is NOT eligible for the I-601A Provisional Waiver for Unlawful Presence if any of the following conditions apply:

  1. You are subject to one or more grounds of inadmissibility other than unlawful presence.
  2. You have a pending Form I-485 Application to Register Permanent Residence or Adjust Status with the USCIS
  3. You are in removal proceedings, unless your removal proceedings have been administratively closed and have not been placed back on the Dept. of Justice, Executive Office for Immigration Review calendar to continue your removal proceedings at the time you file the Form I-601A.
  4. You are subject to a final order of removal, deportation, or exclusion, or to the reinstatement of a prior order of removal, deportation, or exclusion
  5. You are subject to a Dept. of Homeland Security (DHS) order reinstating a prior order of removal, deportation, or exclusion
  6. Dept. of State initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.
  7. You fail to establish that the refusal of your admission would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion

In this case, the applicant is a Honduran national who grew up in poverty, having lost both his parents at a young age and raised by his older sister.  He later entered the U.S. to escape the abject poverty and unchecked crime and violence of his home country.  He has worked productively in the U.S. upon his entrance to the country, has no criminal record whatsoever, and is the father of a U.S. citizen child who he raises together with his U.S. citizen wife.

The extreme hardship factors discussed and documented in detail by our office includes:

  • U.S. citizen wife suffers from Type I Diabetes, a life-long condition carrying serious, potentially lethal consequences, if not properly treated or managed
  • Specific instances of our Honduran client having saved his U.S. citizen wife’s life as she slipped into a hypoglycemic coma due to an imbalance of sugar and insulin in her body
  • The U.S. citizen wife’s history of psychological disorders including Generalized Anxiety Disorder and Dysthymic Disorder
  • The vital financial support provided by our Honduran client to his U.S. citizen wife, without which she would be unable to pay her household and child-related expenses, make payments on her significant debt (including credit bills, home mortgage, and student debt), nor afford her medical expenses
  • The serious medical condition of the wife’s U.S. citizen grandparents,  who she and her husband care for and watch over as best they can
  • In-depth research and discussion of the country conditions of Honduras and the variety of hardships and dangers likely to be faced by this family should they re-locate there
  • The close-knit and interrelated relationships between this extended family of wife, husband, daughter, and grandparents, that would lead to a spiral of psychological distress and medical risk upon four U.S. citizens should the Honduran husband not be allowed to remain in the U.S.

As a result of our efforts, the I-601A provisional waiver was approved.  Our client will now be able to obtain U.S. lawful permanent resident status and more importantly, continue to play an integral role in caring for the well-being of his wife, daughter, and extended family.

Client Approval: I-601A Provisional Waiver Approved for Peruvian with Multiple DUI Convictions

I-601A Provisional Waiver Approved for Peruvian with Multiple DUI Convictions

Our law office received approval of the I-601A Provisional Waiver that we prepared and submitted on behalf of a Peruvian client with multiple driving under the influence (DUI) of alcohol convictions on his record.

Our I-601A Provisional Waiver application package prepared by our law firm included a complete set of USCIS forms requesting consideration of the I-601A Provisional Waiver; a 27 page waiver statement detailing relevant case law favorable to my client’s situation presenting the extreme hardships that applied to this case; a waiver statement that went into compelling detail about the unique and favorable discretionary factors that applied to this case; and a comprehensive collection of exhibits to prove the extreme hardships and favorable discretionary factors being presented.

To be eligible for the I-601A Provisional Waiver for Unlawful Presence, an applicant must fulfill ALL of the following conditions:

  1. Be 17 years of age or older.
  2. Be the spouse, child, or adult child of a U.S. citizen or lawful permanent resident.
  3. Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
  4. Have a pending immigrant visa case with the Dept. of State for the approved immediate relative petition and have paid the Dept. of State immigrant visa processing fee.
  5. Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or lawful permanent spouse or parent.
  6. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
  7. Not have been scheduled for an immigrant visa interview by Dept. of State before January 3, 2013.
  8. You are inadmissible ONLY for unlawful presence in the United States for more than 180 days but less than 1 year during a single stay (INA Section 212(a)(9)(B)(i)(I)), or unlawful presence in the United States for 1 year or more during a single stay (INA Section 212(a)(9)(B)(i)(II).

An applicant is NOT eligible for the I-601A Provisional Waiver for Unlawful Presence if any of the following conditions apply:

  1. You are subject to one or more grounds of inadmissibility other than unlawful presence.
  2. You have a pending Form I-485 Application to Register Permanent Residence or Adjust Status with the USCIS
  3. You are in removal proceedings, unless your removal proceedings have been administratively closed and have not been placed back on the Dept. of Justice, Executive Office for Immigration Review calendar to continue your removal proceedings at the time you file the Form I-601A.
  4. You are subject to a final order of removal, deportation, or exclusion, or to the reinstatement of a prior order of removal, deportation, or exclusion
  5. You are subject to a Dept. of Homeland Security (DHS) order reinstating a prior order of removal, deportation, or exclusion
  6. Dept. of State initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.
  7. You fail to establish that the refusal of your admission would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion

In this case, the applicant is a Peruvian national who grew up in a crime-ridden, drug-lord controlled region of Peru. His father, a police officer, was killed in the line of duty when he was a young child.  His mother abandoned his family when he was a teenager.  He undertook the tremendous responsibility to care for his siblings (and later, other young relatives) as a teenager and did so without falling prey to the illicit activities that surrounded him.

He later entered the U.S. to provide a more secure for the family members (still in Peru).  He was convicted of driving under the influence of alcohol in two separate incidents.  Since those incidents, he entered into a treatment program that he completed with a stellar recommendation from his rehabilitation group counselor; attended school when not working to learn English; volunteered as a tutor at a local community college; became involved with a non-profit organization; and works diligently to this day to support his U.S. citizen wife and child.

All of this was presented in a powerful and persuasive manner, together with the extreme hardship factors, to convey the unique nature of this case.  As with all of our I-601, I-601A, I-212, and 212(d)(3) waiver cases, we specialize in going beyond the legal standard and presenting the compelling human element of each case so that our client’s case does not become “just another case file” in the eyes of the adjudicating USCIS officer.

The extreme hardship factors discussed and documented in detail by our office includes:

  • The medical condition of the U.S. citizen wife that includes a serious medical illness with severe physical repercussions
  • The debilitating psychological disorders of the U.S. citizen wife
  • The total dependence of the U.S. citizen wife on her husband for financial and child-care assistance, without which she would suffer financial collapse
  • The serious medical condition of her U.S. citizen father, who the U.S. citizen wife will be called upon to support and care for at any time, as his state inevitably worsens
  • In-depth research and discussion of the country conditions of Peru and the variety of hardships and dangers likely to be faced by this family should they re-locate there
  • The close-knit and interrelated relationships between the family members that would lead to a spiral of psychological distress upon the entire family should the applicant be forced to return to Peru

As a result of our efforts, the I-601A provisional waiver was approved for our client despite multiple DUI convictions on his record.  Our client will now be able to obtain U.S. lawful permanent resident status and more importantly, provide a better life for his wife, child, and family members still remaining in Peru.

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.

AAO Approves I-601 Waiver for INA 212( a)(9)(B) Unlawful Presence Bar

AAO Approves I-601 Waiver for INA 212( a)(9)(B) Unlawful Presence Bar

I-601 Waiver Legal News

The applicant is this case a native and citizen of Mexico who was found to be inadmissible under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (INA), 8 U.S.C. §1182(a)(9)(B)(i)(II), for having been unlawfully present in the United States for more than one year.

That section reads:

(B) Aliens Unlawfully Present

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

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States . . . and again seeks admission within 3 years of the date of such alien’s departure or removal, or

(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 such alien’s departure or removal from the United States, is inadmissible.

U.S. Citizenship and Immigration Services (USCIS) records reflect that the applicant entered the United States without inspection on March 1, 2001 and voluntarily departed in December 2007 pursuant to an order of the immigration judge.

Accordingly, the applicant accrued unlawful presence for more than one year, and his voluntary departure triggered the ten-year bar, rendering him inadmissible under section 212(a)(9)(B)(i)(II) of the Act.

The applicant sought a waiver of inadmissibility pursuant to INA 212(a)(9)(B)(v) of the INA, 8 U. S.C. § 1182(a)(9)(B)(v).  

Section 212(a)(9)(B)(v) of the Act provides for a waiver of section 212(a)(9)(B)(i) inadmissibility as follows:

The Attorney General [now Secretary of Homeland Security] 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 . . . 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.

A waiver of inadmissibility under section 212(a)(9)(B)(v) 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.  Hardship to the applicant and his children can be considered only insofar as it results in hardship to a qualifying relative.  The applicant’s U.S. citizen 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 1 984); 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, etcetera, 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 Twi 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. See Salcido-Salcido, 138 F.3d 1292, 1293 (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 247 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

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

This case illustrates the importance of providing as many details as possible regarding the hardships being suffered by the qualifying relative (or to be suffered in the case of relocation or separative), and more importantly, presenting objective proof of each hardship that is presented to the USCIS.  The types of evidence submitted as part of the record in this case include:

  • copies of invoices
  • photographs
  • financial records
  • affidavits
  • school records
  • birth certificates
  • marriage certificate
  • Western Union receipts
  • Kmart Store wire transfers
  • medical records
  • letters
  • criminal records
  • information about country conditions, education, and employment in Mexico.

The applicant’s wife asserts in the letter dated December 6, 2010 that she would have difficulty living in Mexico because of the living conditions in Michoacan.  She contends that there is no electricity, stove, refrigerator, bathroom, or running water in the house of her in-laws.  She states that water must be hand carried in buckets from a river that is an hour away on foot, and that the water must first be boiled before it is drinkable.  She declares that there is no bathroom to shower so buckets of water and cups are used to bathe, and that the outhouse toilet is away from the house, which worries her because of the wild coyotes, snakes, and scorpions and the far distance from the nearest hospital, which is one hour away.  She contends that her daughter’s education would suffer because she does not speak Spanish, and already struggles in school.  The applicant’s wife asserts that the schools in Michoacan have few teachers, are small, and lack running water and a bathroom.  She declares that Mexico is an unsafe place to live because of drug wars.

The applicant’s wife states in the affidavit dated 2011 that she lives with her parents and daughter, who was born ?2005, and prior to this living arrangement she and her daughter lived with the applicant, who financially supported them.  The applicant’s wife asserts that she now works full time while her mother, who has myeloproliferative disorder, takes care of her daughter.  She states that she went to Mexico to marry the applicant and spent three months with him Michoacan, and found it was not safe because of drug gangs.  She declares that while they were there, a child was kidnapped and killed because his parents could not afford the ransom.  She asserts that her husband cannot afford to move from his parent’s house and she sends him money.  The applicant’s wife declares that she does not speak much Spanish and does not think she would be able to find enough work to support their daughter.  She contends that her daughter needs the applicant and she cannot bear for her to grow up without him. The applicant’s wife asserts that she has been struggling with depression because of separation from her husband and saw a clinical psychologist.  She contends that she does not earn enough money to travel to Mexico and that her money is used to support her husband and his parents.

The applicant declares in the letters written i?n 2011 that he misses his wife and daughter, but they would not be able to survive where he lives.  He states that his town does not have a clinic, that he does not have transportation, and must travel far to get water that is not safe to drink.  He asserts that the school in his town is old, the children are poor and do not have food, and his parent’s house lacks heat and electricity.  The applicant contends that there are no jobs in which to earn money to survive and children have died from lack of medicine and medical care.  He declares that in Mexico his daughter would not have a school comparable to the one she attends in the United States and would not have sufficient food and clothing for there are days when he and his parents have no food to eat. The applicant asserts that gangs and crime make living in Mexico dangerous.

The asserted hardships of remaining in the United States without the applicant are emotional and financial in nature.  The claim of emotional hardship to the applicant’s wife is in agreement with letters from family members, the affidavit from the applicant’s wife, and the psychological evaluation dated 2010.  The psychologist states in the evaluation that the applicant’s wife has “symptoms of depression in the context of a 3-year separation from her husband” and diagnosed her with adjustment disorder with anxiety and depressed mood, and an eating disorder.

The applicant’s wife claims she is experiencing financial hardship without income from her husband.  Her claim is congruent with the letter from her employer dated 2010 for it reflects she works full time and earns $10.50 per hour, and the 16 wire transfers and money grams showing that since 2009 she has financially supported her husband.  The applicant’s wife’s anxiety about her husband’s safety in Michoacan is in agreement with the submitted travel warning stating that the State of Michoacan is home to the dangerous transnational criminal organization (TOC) “La Familia,” and that there have been attacks on government officials, law enforcement and military personnel, and other incidents of TCO-related violence throughout Michoacan.  U.S. Department of State, Bureau of Consular Affairs, Travel Warning- Mexico (April 22, 2011 ).  When the AAO combined the asserted emotional and financial hardship factors together, the AAO found that they demonstrate that the hardship to the applicant’s wife if she remains in the United States while her husband lives in Michoacan is extreme in that it is more than the typical or common hardships of inadmissibility.

The claimed hardships to the applicant’s wife in relocating to Mexico with her husband are having an impoverished living standard, distress about a substandard education for her daughter, not being able to find a job that will pay enough to survive, and fear they will become victims of drug-related violence.  The applicant’s assertion that he is not able to support himself in Michoacan is consistent with letters by his wife and the money grams and wire transfers. The applicant’s claim that it is dangerous in Michoacim is in accord with the earlier described travel warning about Mexico. The applicant’s wife’s statement that her daughter is struggling academically and her education will be jeopardized in Michoacan is in agreement with the parent notification stating that the applicant’s daughter was in the low strategic group, and the article from Cambio de Michoacan asserting that Michoacan has over a million people “above the age of 15 that have not finished their basic education, while in the illiteracy category you can find more than 300 thousand Michoacan inhabitants who are illiterate. ” When the asserted hardship factors are considered together, they establish that the hardship to the applicant’s wife in relocating to Mexico would be extreme and more than the common or typical result of inadmissibility.

In Matter of Mendez-Moralez, 2 1 I&N Dec. 296, 301 (BIA 1996), the Board stated that once eligibility for a waiver is established, it is one of the favorable factors to be considered in determining whether the Secretary should exercise discretion in favor of the waiver. Furthermore, the Board stated:

In evaluating whether section 212(h)(l )(B) 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). Id. at 301.

The AAO must then, “[B]alance 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. ” Id. at 300. (Citations omitted).

The factors adverse to the applicant in the instant case are his entry without inspection in 2001, unlawful presence, as well as any unauthorized employment.  The favorable factors are the extreme hardship to the applicant’s wife, the hardship to his young daughter, as well as their maintaining a close relationship during their years of separation. Letters from his wife’s family members attest that the applicant is a good husband and father, and provider for his family. The applicant has no criminal convictions.

When the AAO considered and balanced the favorable factors against the adverse factors, it found that the favorable factors outweigh the adverse factors and the grant of relief in the exercise of discretion is warranted in this case.