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

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

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

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

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

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

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

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

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

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

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

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

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

INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who demonstrates that this removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.

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

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

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

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

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

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

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

The positive factors in this case included:

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

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

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

Waiver Approval: I-601 Waiver Approved for K-1 Fiancee Inadmissible for Fraud – Misrepresentation

Waiver Approval: I-601 Waiver Approved for K-1 Fiancee Inadmissible for Fraud - Misrepresentation

We recently obtained approval of the I-601 “Extreme Hardship” Waiver and K-1 Fiancée Visa for a client from Africa found inadmissible for having attempted to procure an immigration benefit in the United States by fraud or willful misrepresentation of a material fact under INA Section 212(a)(6)(C)(i).

The K-1 fiancée was previously married to a spouse who had won the diversity visa lottery.  She attempted to obtain U.S. permanent residence together with her spouse, but was unable to demonstrate to the satisfaction of the consular officer that their marriage was genuine.  Due to irregularities that occurred during this process, she was charged with fraud/misrepresentation and became banned for life from the U.S.

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

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

The K-1 fiancée subsequently rekindled a friendship with a U.S. citizen who is a member of the U.S. Navy.  They fell in love with one another and contacted my office to help represent them throughout the K-1 Fiancée Visa process.

I first provided the couple with a detailed letter going over the K-1 Fiancée Visa process from start to finish.  This “start-up package” included client questionnaires and a checklist of supporting documents to gather and forward to my office.

After the initial USCIS petition was expeditiously prepared and filed by my office on behalf of our clients, I provided the couple with another detailed letter going over preparation guidelines and tips for the K-1 visa interview.

To prepare for the fraud/misrepresentation charge that we expected to be levied against the K-1 fiancée visa at her consular interview, I began preparation of the I-601 waiver package while the K-1 visa petition was still processing. This allowed my clients to save time by having the I-601 “extreme hardship” waiver ready to submit as soon as the consular interview was complete.

Section 212(i) of the Act provides that:

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

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

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

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

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882). The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Id.

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

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

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

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

  • The U.S. citizen fiancé is solely responsible for the day-to-day care and financial support of his mother, who suffered severe brain damage and relies upon her son for the necessities of life
  • The U.S. citizen fiancé lives with his mother and his younger brother.  Due to his mother’s incapacity, the U.S. citizen fiancé is now responsible for providing food, housing, clothing, and emotional support to his younger brother as well.
  • The U.S. citizen fiancé does not earn enough through his work with the U.S. Navy to meet the expenses involved in caring for himself, his incapacitated mother, and his younger brother.  He is falling deeper into debt.  He needs his fiancée in the U.S. and working to provide a second income that will help meet the financial needs of this tight-knit family.
  • The U.S. citizen fiancé is at high risk of psychological decompensation due to the tremendous stress of caring for his disabled parent and younger brother.  He also faces deployment abroad in 2016 with the U.S. Navy.  This is putting extraordinary pressure on him as he needs his fiancée in the United States as soon as possible to help him psychologically cope and to assist in the care for his disabled mother and young brother.  His fiancée’s presence in the U.S. and her day-to-day assistance will be especially vital  during his deployment abroad with the U.S. Navy.

As a result of our efforts, our client was approved for the I-601 Waiver and K-1 Fiancée Visa.  She can now enter the United States, marry her U.S. citizen fiancée, and subsequently apply for adjustment of status to permanent residence in the United States.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Legal Analysis of Extreme Hardship

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

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

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

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

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

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

Our Client’s Extreme Hardship and Discretionary Factors 

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

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

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

Client Approval: I-601 Waiver Approved for K-1 Fiancee Subject to 10 Year Unlawful Presence Bar

Client Approval: I-601 Extreme Hardship Waiver Approved for K-1 Visa Fiancee from Thailand Subject to the 10 Year Unlawful Presence Bar.

Our office received approval of the K-1 fiancée visa and I-601 “unlawful presence” waiver for the Thai fiancée of a U.S. citizen.   She had previously entered the U.S. as a non-immigrant student but overstayed her authorized period of stay by over one year before voluntarily departing back to her home country.

She subsequently met and fell in love with her U.S. citizen fiancé and the couple contacted my office to obtain my legal assistance.

We first provided the couple with a comprehensive letter going over every detail of the K-1 fiancée visa process, including preparation and submission of the initial I-129F petition to the USCIS as well as consular processing at the US embassy abroad.

We also provided our clients with an abbreviated checklist of supporting documents (both mandatory and optional) to gather in support of the I-129F Petition for Alien Fiancée and return to our office.

We meticulously prepared every USCIS application form on behalf of our clients; assembled the petition; submitted it to the USCIS on their behalf; then provided our clients with further guidelines on preparing for the consular interview to maximize the probability of K-1 visa approval at the US embassy interview.

Once the K-1 fiancee visa petition was submitted to the USCIS, we began work on preparing the I-601 “Extreme Hardship” waiver to overcome the 10 year “presence” bar (under INA 212(a)(9)(B)(i)(II)) we knew the Thai fiancée is subject to.

We always work on waivers while the USCIS visa petition is pending so that no time is lost and the waiver can be submitted as soon as the applicant located abroad is eligible (typically after being deemed inadmissible at the U.S. consular interview).

INA Section 212(a)(9)(B)(v) provides that a waiver for INA Section 212(a)(9)(B)(i)(II) (10 year “unlawful presence bar”) is applicable solely where the applicant establishes extreme hardship to her U.S. citizen or lawfully resident spouse or parent.  A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

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

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

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

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

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

In support of our client’s I-601 waiver application, we prepared an extensive legal brief going over how the facts and circumstances of our clients’ situation met the legal standards used to define “extreme hardship.”  We conducted extensive research on the country conditions of Thailand to demonstrate the hardships the U.S. citizen fiancé would suffer if he were to re-locate to Thailand to be with his loved on.  The brief was accompanied by a comprehensive array of supporting exhibits that provided objective, credible proof of the statements made in the legal brief.

The positive factors in this case included:

  • The U.S. citizen fiancé suffers from Generalized Anxiety Disorder and Dysthymic Disorder and has suffered from these conditions for many years
  • The U.S. citizen fiancé’s family has an extensive history of mental illness
  • The U.S. citizen fiancé is the single parent of a U.S. citizen minor child who suffers from Post-Traumatic Stress Disorder
  • The U.S. citizen fiancé is the sole care-giver and provider for his elderly and disabled parents, who suffer from progressive and degenerative medical conditions that have compromised their mobility and ability to perform routine tasks
  • The U.S. citizen fiancé suffers from a serious physical ailment that requires surgery.  However, he cannot undergo surgery without his fiancée’s presence in the U.S. to help take care of his parents while he recovers from surgery.
  • The U.S. citizen fiancé’s work performance is already significantly impaired due to his psychiatric and medical conditions, causing absences from work and markedly poor performance.  Continued stress caused by separation from his loved one may force him to close down his business and lead to subsequent financial collapse.
  • The U.S. citizen fiancé’s son, who suffers from Post-Traumatic Stress Disorder, is negatively affected by his father’s long absence from home.  He also shares joint-custody over his son with his ex-wife, who will never allow their son to be re-located to another country.
  • The region of Thailand where the Thai fiancée resides is subject to an advisory warning by the U.S. embassy, due to historical violence and civil unrest.

As a result of the “unlawful presence” waiver prepared and submitted by our office, this I-601 waiver application was approved and the couple can now be married inside the United States and pursue a life together as a family.

Client Approval: I-601 Waiver for Robbery Approved for Vietnamese Client

Client Approval: I-601 Waiver for Robbery Approved for Vietnamese Client

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a citizen of Vietnam who was subject to a life-time bar from being admitted to the United States for conviction of a crime involving moral turpitude under INA Section 212(a)(2)(A)(i)(I).  Our client was previously convicted of Robbery and served 5 months in prison in his native country of Vietnam before being released.

In order to obtain approval of the I-601 waiver, I initiated our firm’s comprehensive process for preparation of compelling and persuasive immigration waiver applications.  This is a process that has been crafted and improved over a period of 12 years of preparing I-601, I-212, and 212(d)(3) immigration waivers on behalf of our clients located across the U.S. and around the world.

I began by forwarding our Extreme Hardship Worksheet to my clients, which contains a comprehensive list questions designed to elicit extreme hardships and other persuasive factors from their lives.  It also contains a long checklist of supporting documents that help document and prove the hardships and persuasive factors relevant to the case.

I recommended the couple to a clinical psychologist who I have worked closely with for over a decade.  The psychological evaluation for immigration waivers is a specialized practice area for clinical psychologists and I provide in-depth guidance should my clients wish to utilize a psychologist who they already have a relationship with (please refer to my post on the elements of a powerful psychological evaluation for I-601 waiver applications for more details).

Once we identified the most important factors of the case, we prepared a comprehensive 27-page legal brief going over how the facts and circumstances of my client’s situation met the legal standards used to define “extreme hardship.”  We also discussed and presented evidence of my client’s rehabilitation, good moral character, and his long history of bettering himself in his professional capacity.

We made sure every single facet of our case was documented including a proven history of mental disorder in the life of the U.S. citizen; her personal family history that makes her particular vulnerable to psychological hardship; as well as her daily support of her lawful permanent resident mother who relies upon her U.S. citizen daughter for every facet of her life in the U.S.  Additionally, a table of exhibits referenced a variety of objective evidence in support of a showing of “extreme hardship”.

As a result of our efforts, the couple’s I-601 “Extreme Hardship” Waiver Application was approved and this family is now able to lawfully reside together in the United States.

Client Approval: I-601 Waiver Approved under INA 212(g) for Physical or Mental Disorder

Client Approval: I-601 Waiver for Approved under INA 212(g) for Physical or Mental Disorder

Our client was recently approved for the I-601 Application for Waiver of Grounds of Inadmissibility we prepared and submitted on his behalf, after he was deemed inadmissible by the U.S. embassy in London, United Kingdom, under INA Section 212(a)(2)(A)(iii).

INA 212(a)(2)(A)(iii) deems an alien inadmissible if he/she is determined:

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others; or

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior;

In other words, this inadmissibility ground can be divided into two subcategories:

  • Current physical or mental disorders, with associated harmful behavior.
  • Past physical or mental disorders, with associated harmful behavior that is likely to recur or lead to other harmful behavior.

It is important to note that there must be both a physical or mental disorder AND harmful behavior to make an applicant inadmissible based on this ground.  Neither harmful behavior nor a physical/mental disorder alone renders an applicant inadmissible on this ground.  Harmful behavior is defined as behavior that may pose, or has posed, a threat to the property, safety, or welfare of the applicant or others.

On our client’s behalf, we prepared a comprehensive waiver application including an in-depth legal and factual discussion of INA 212(a)(2)(A)(iii) as it applies to the applicant.  We presented and discussed medical evidence that demonstrates our client has no physical or mental disorder whatsoever.  We presented and discussed evidence that shows our client has in fact never exhibited any type of behavior which can be deemed “harmful.”  We also put forward evidence that demonstrates our client’s good moral character and complete absence of behavior that poses any risk of harm to himself or to others.

We furthermore instructed our client to locate a U.S.-based health care provider and obtain their consent to evaluate the applicant upon his admission to the U.S. (as well as to provide any care and treatment should it be deemed necessary).  This was done to obtain the favorable exercise of discretion of the U.S. Center for Disease Control, which has jurisdiction to review waiver cases involving INA 212(a)(2)(A)(iii).

As a result of our efforts, our client was approved for the I-601 waiver and his now able to join his loved one inside the United States and pursue U.S. lawful permanent residence.

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

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

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

-Robert Hanshew

Client Approval: I-601 Waiver Approved for 3 Year Unlawful Presence Bar

Client Approval: I-601 Waiver Approved for 3 Year Unlawful Presence Bar

Our office received approval of the I-601 “unlawful presence” waiver for the fiancée of a U.S. citizen.   She had previously entered the U.S. as a non-immigrant visitor but overstayed her authorized period of stay in the U.S. by over six months before departing back to the United Kingdom.  The U.S. citizen fiancée filed the I-129F Petition for Alien Fiancé(e) on her behalf.  She was interviewed at the U.S. embassy in London where she was denied the K-1 visa based upon being subject to the 3 year unlawful presence bar under Section 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act.  The U.S. citizen fiancé subsequently contacted my office to prepare and submit the I-601 waiver on their behalf.

INA Section 212(a)(9)(B)(v) provides that a waiver for INA Section 212(a)(9)(B)(i)(II) is applicable solely where the applicant establishes extreme hardship to her U.S. citizen or lawfully resident spouse or parent.  A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

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

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

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

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

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

In support of my client’s I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of my clients’ situation met the legal standards used to define “extreme hardship.”  This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief.

The positive factors in this case included:

  • The U.S. citizen fiancé is a disabled U.S. veteran who sustained injuries during combat training and deployment.
  • The U.S. citizen fiancé has been diagnosed with Post-Traumatic Stress Disorder, recurring migraines, chronic knee pain, Depression, and Hypertension.  He receives medical care through the U.S. Department of Veterans Affairs.
  • The U.S. citizen fiancé continues to work with the U.S. Marine Corp as a specialized contractor.
  • The U.S. citizen fiancé has significant financial obligations in the U.S. including mortgage payments on a family home. Departure from the U.S. would mean discontinuation of his work with the U.S. Marine Corp and the inability to afford his existing monthly payments.

 It is my experience that waiver applications filed by fiancées and spouses of U.S. military personnel and veterans are generally given more favorable discretion by the USCIS if the importance of their duties to the national security of the U.S. can be demonstrated.  I thus elaborated on the vital nature of the U.S. citizen fiancé’s continued work with the U.S. Marine Corp and how instrumental his work is to safe-guarding the lives of American soldiers. .

 As a result of the “unlawful presence” waiver prepared and submitted by our office, this I-601 waiver application was received and the couple can be re-united in the United States.

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

I-601 Waiver and I-601A Waiver Expedite

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

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

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

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

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

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

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

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

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

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

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

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

Fiance Visa Approved – Client Review by Peter L.

Fiance Visa Approved - K-1 Fiance Visa Lawyer

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

I highly recommend Michael Cho’s services for anyone looking for a successful outcome to their immigration needs. I hired Michael Cho to represent my fiancée and I for the K-1 Fiancée Visa process. The interactions were done mainly through email, but there was absolutely no loss in the service provided. Michael Cho was able to successfully guide us through the application and interview process to obtain the fiancée visa. Listed below are some specific reasons why I would choose Michael Cho to be my immigration lawyer:

1. Michael always responded quickly with answers to all of my questions. Responses via email were always within hours.

2. Michael’s services were more cost effective than local lawyers.

3. Michael provided step-by-step instructions and explained the entire process, which made it easy for us to know what to do.

4. Michael has deep knowledge and experience to be proactive when necessary. Michael correctly advised me to file additional forms and information so that our application would not be held up at the USCIS.

5. Michael filed the forms and followed up with the USCIS when our case seemed to take longer.

6. Michael prepared my fiancée for the interview by making sure we had the necessary forms, letters, pictures, etc. He was also willing to hold a mock interview and answer any last minute questions before the consular interview.

7. My fiancée mentioned that she was well prepared with all documents and requirements needed for the consular interview. Her successful interview only lasted a minute.

For my fiancée and I, our decision to apply for the K-1 Fiancée Visa was one of the most important steps for our relationship. I wanted everything done right the first time, with no delays and failures. Michael Cho was able to make this possible. If you are looking for a professional immigration lawyer who covers the entire basis and works tirelessly to represent you to a successful outcome, hire Michael Cho and you will not be disappointed.