I-212 Waiver Approved for Nigerian B-1/B-2 Visa Applicant Subject to 5 Year Ban

I-212 Waiver Approved for Nigerian B-1/B-2 Visa Applicant Subject to 5 Year Ban

Our client contacted my office after being expeditiously removed from the U.S. during his and his family’s attempted entry into the U.S. on valid B-1/B-2 visitor visas.  During inspection at the arriving port of entry, the CBP officer searched through their luggage and found children’s schoolbooks and school-related material as well as their medical records.

Our client informed the CBP officer that his wife and children planned to stay temporarily in the home of a relative while the Ebola epidemic was then a serious public health concern in Nigeria.  He informed the CBP officer that his wife and children would return back to Nigeria within 5 months.  Our client himself planned to return back to Nigeria within a few days to attend to businesses which he owns and operates in his home country.

The CBP officer determined that our client’s family did not overcome their presumption of immigrant intent and expeditiously removed them from the U.S.  My client subsequently contacted me because he needed to return to the U.S. to meet with business partners and customers and attend trade conventions that are vital to the operation and success of his enterprise.

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

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

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

The USCIS exercises broad discretion when adjudicating I-212 waiver requests for permission to reapply.  The following may be considered positive factors in granting permission for early re-entry:

  •  Basis for the deportation
  • Recency of deportation
  • Foreign national’s length of residence in the U.S., and status held during that presence
  • Family responsibilities and ties to the U.S.
  • Foreign national’s evidence of good moral character
  • Foreign national’s respect for law and order
  • Evidence of reformation and rehabilitation
  • Hardship involving the applicant and others
  • Need for the applicant’s services in the U.S.
  • Whether the applicant has an approved immigrant or non-immigrant visa petition
  • Eligibility for a waiver of other inadmissibility grounds
  • Absence of significant undesirable or negative factors

Negative factors may include:

  • Evidence of moral depravity, including criminal tendencies reflected by an ongoing unlawful activity or continuing police record
  • Repeated violations of  immigration laws, willful disregard of other laws
  • Likelihood of becoming a public charge
  • Poor physical or mental condition (however, a need for treatment in the United States for such a condition would be a favorable factor)
  • Absence of close family ties or hardships
  • Spurious marriage to a U.S. citizen for purpose of gaining an immigration benefit
  • Unauthorized employment in the United States
  • Lack of skill for which labor certification could  be issued
  • Serious violation of immigration laws, which evidence a callous attitude without hint of reformation of character
  • Existence of other grounds of inadmissibility into the U.S.

In support of our client’s I-212 waiver application, we prepared a comprehensive legal brief going over how the facts and circumstances of his situation met the legal standards used to adjudicate an I-212 waiver application for a B-1/B-2 non-immigrant visa applicant.  The legal standards discussed included those set forth by the Board of Immigration Appeals in its precedent decision, Matter of Tin.  

Just as importantly, we presented substantial evidence of our client’s significant and permanent ties to his home country in order to overcome the presumption of immigrant intent.  We discussed and provided proof of our client’s previous travels to the United States, Canada, the United Kingdom, and other countries of the European Schenhen Area.  We presented details of his previous travels to the United States on business, attending trade conventions and conferences at which he and the management team of his companies have obtained training in cutting-edge technologies, strategies, and methodologies in their industry sector; negotiated contracts; and initiated business contacts with prospective clients.

We further presented corporate documentation showing the formation, capital structure, and revenues of our client’s companies that are based in his home country of Nigeria; our client’s own personal savings, investments, property ownership, and financial snapshot of his net worth; as well the reasons why it is critically important for him to enter the U.S. now to facilitate expansion of new start-up businesses in Nigeria that he has full or majority ownership of.

Just some of the supporting exhibits that we submitted to prove important assertions made in the legal brief and overcome immigrant intent included:

  • Passports and Visas for the Entire Family
  • Certificates of Incorporation
  • Expenses for Business Trips Previously Made to US
  • Family Travel Itinerary for Past 5 Years
  • Comprehensive Presentation of our Client’s Business Interests
  • Proof of Property Ownership
  • Property Surveys
  • Current Cash Assets of Companies Fully-owned by our Client
  • Personal Savings Account Statement
  • Contracts with Business Clients
  • Extended Contracts Demonstrating Product Marketing and Strategic Planning
  • Purchase Orders for Equipment by Companies Owned by our Client
  • Government Authorization to Employ Foreign Employees in Nigeria
  • Contracts with Business Partners
  • Criminal Record Background Checks
  • Attestations from Attorney

I-212 waivers for non-immigrants residing outside the U.S. and applying for non-immigrant visas are generally submitted at the U.S. embassy or consulate with jurisdiction over the applicant’s place of residence.

Thus, this waiver was submitted to the U.S. consulate in Lagos.

The I-212 waiver we thoroughly prepared for our client was subsequently approved.  Our client is now able to freely travel to the United States to further expand his businesses and meet with customers, partners, and colleagues in his respective industrial field.

I-601 and I-212 Waivers Approved for Colombian Spouse of U.S. Military Veteran

I-601 and I-212 Waivers Approved for Colombian Spouse of U.S. Military Veteran

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

Our client lawfully entered the U.S. on a B-1/B-2 visitor visa when she was taken to the United States by her mother as a minor child.  She overstayed in the U.S. and was planning to leave the U.S. voluntarily with her mother when a deportation order was entered against her and her family.

She subsequently left from the U.S. to Colombia where she later met and fell in love with her U.S. citizen husband.

She was thus subject to the 10 year “unlawful presence bar” pursuant to INA INA Section 212(a)(9)(B) as well as the 10 year “deportation bar” pursuant to INA Section 212(a)(9)(A)(i) and (ii).

Keep in mind that combined I-601 and I-212 waiver submissions can only be submitted AFTER  the applicant is deemed inadmissible and denied an immigrant visa at his/her immigrant visa interview at a U.S. consulate or embassy.  It is therefore important to begin the waiver preparation process at least 3-4 months BEFORE such the consular interview is scheduled so that the waivers can be promptly submitted after the finding of inadmissibility by the consular officer.

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

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

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

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

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

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

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

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

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

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

The USCIS exercises broad discretion when adjudicating I-212 waiver requests for permission to reapply.  The following may be considered positive factors in granting permission for early re-entry:

  • Basis for the deportation
  • Recency of deportation
  • Foreign national’s length of residence in the U.S., and status held during that presence
  • Family responsibilities and ties to the U.S.
  • Foreign natonal’s evidence of good moral character
  • Foreign national’s respect for law and order
  • Evidence of reformation and rehabilitation
  • Hardship involving the applicant and others
  • Need for the applicant’s services in the U.S.
  • Whether the applicant has an approved immigrant or non-immigrant visa petition
  • Eligibility for a waiver of other inadmissibility grounds
  • Absence of significant undesirable or negative factors

Negative factors may include:

  • Evidence of moral depravity, including criminal tendencies reflected by an ongoing unlawful activity or continuing police record
  • Repeated violations of  immigration laws, willful disregard of other laws
  • Likelihood of becoming a public charge
  • Poor physical or mental condition (however, a need for treatment in the United States for such a condition would be a favorable factor)
  • Absence of close family ties or hardships
  • Spurious marriage to a U.S. citizen for purpose of gaining an immigration benefit
  • Unauthorized employment in the United States
  • Lack of skill for which labor certification could  be issued
  • Serious violation of immigration laws, which evidence a callous attitude without hint of reformation of character
  • Existence of other grounds of inadmissibility into the U.S.

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

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

”Extreme hardship,” for purposes of the I-601 Waiver, has a special meaning under U.S. immigration law.  The factors considered relevant in determining extreme hardship include:

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

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

We drafted a 20+ page waiver memorandum outlining the relevant case law favorable to my client’s situation.  It also discussed in detail the extreme hardships the U.S. citizen husband is presently suffering from, and proved how they would worsen in the event of continued separation from his beloved wife.  We also highlighted a variety persuasive factors that I believed warranted an exercise of favorable discretion on the part of the USCIS.

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

  • The U.S. citizen husband is a veteran of the U.S. Armed Forces who served his country honorably.  USCIS has issued guidance giving preference to approval of I-601 waivers when the qualifying relative is a member of the U.S. Armed Forces or a veteran.
  • The U.S. citizen husband’s elderly mother has been diagnosed with non-Hodgkin’s lymphoma, for which she is receiving medical treatment.  We demonstrated that it is imperative for the U.S. citizen husband to remain inside the U.S. to give support and regular assistance to his mother during this difficult period.
  • The U.S. citizen husband suffers from psychological ailments, including anxiety, lack of sleep, lack of energy, general fatigue and other assorted ache and pain.  We showed that allowing this couple to reunite will provide the U.S. citizen husband the psychological, emotional, and fiscal stability needed to deal with the stressors in his life and sustain gainful employment. It will also allow him to continue to support his ailing mother, who suffers from cancer, and who faces an uncertain future.  We proved through a variety of objective evidence that the symptoms of these disorders have been greatly exacerbated by the mere possibility of long-term separation from his wife; and the inevitable, disastrous consequences that would result should such a separation continue.
  • The U.S. citizen husband is already experiencing extreme hardship.  We proved that being forced to provide subsistence payments to his family in Columbia places significant financial stress on the U.S. citizen husband.
  • The U.S. citizen husband cannot risk immigrating to Columbia to be with his spouse because of the personal risks such a move would create for him (most especially as ex-U.S. military), his inability to obtain employment in Columbia, and the wholly inadequate living, medical, and economic conditions to which he would be exposed.

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

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).

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.

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

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

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

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

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

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

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

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

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

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

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

You are only inadmissible for participation in prostitution; and

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

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

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

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

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

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

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

You are a VA WA self-petitioner

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Please provide the following evidence to support your application:

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

[Read more…]

I-212 Waiver Approved on Appeal by AAO Due to U.S. Citizen Spouse, Lack of Criminal Record, and Showing of Hardship

I-212 Waiver Approved on Appeal by AAO Due to U.S. Citizen Spouse, Lack of Criminal Record, and Showing of Hardship

I-212 Waiver News

The AAO recently granted approval of the I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal for a citizen of Mexico who was ordered removed from the United States on October 11, 2012.

This case is useful to examine because it provides an example of the type of detailed discussion and comprehensive presentation of favorable factors needed in an I-212 waiver in order to obtain approval.  It also highlights the importance of a powerful and credible psychological evaluation conducted for purposes of an immigration waiver case.

The applicant initially entered the United States with a B-2 visitor visa on February 7, 2012, and though her period of authorized stay expired on August 6, 2012, she did not depart the United States until September 28, 2012.

She then sought to procure admission to the United States on October 11, 2012.  In her sworn statement before a U.S. immigration officer on October 11, 2012, she admitted to working without employment authorization during her previous stay in the United States and to staying longer than her period of authorized stay.

The applicant was found to be inadmissible under section 212(a)(7)(A)(i)(I) of the Act.  She was therefore ordered removed under section 235(b)(1) of the Act and removed on October 11, 2012.

Because of her expedited removal order, the applicant was inadmissible pursuant to section 212(a)(9)(A)(i) of the Act and required permission to reapply for admission into the United States under section 212(a)(9)(A)(iii) of the Act.

She sought permission to reapply for admission into the United States under section 212(a)(9)(A)(iii) of the Act, 8 U.S.C. § 1182(a)(9)(A)(iii), in order to reside in the United States.

The USCIS initially determined that the applicant’s adverse factors outweighed her favorable factors, and denied her I-212 Waiver.

On appeal, it was asserted that the USCIS made several legal errors, including failing to consider the applicant’s many favorable factors, the lack of unfavorable factors, evidence of hardship submitted, and the cumulative effect of hardship on the applicant and her spouse.

In addition, it was asserted that the USCIS applied an extreme hardship standard instead of the required balancing of equities standard; and that her favorable factors outweigh her adverse factors.

Section 212(a)(9) of the Act states in pertinent part:

(A) Certain aliens previously removed.-

(i) Arriving aliens.- Any alien who has been ordered removed under section 235(b )(1) or at the end of proceedings under section 240 initiated upon the alien’s arrival in the United States and who again seeks admission within five years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(ii) Other aliens.-Any alien not described in clause (i) who-

(I) has been ordered removed under section 240 or any other provision of law, or
(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien’s departure or removal (or within 20 years  of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(iii) Exception.- Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien’s re-embarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Secretary has consented to the alien’s reapplying for admission.

In Matter of Tin, 14 I&N Dec. 371 (Reg. Comm. 1973), the Regional Commissioner listed the following factors to be considered in the adjudication of a Form I-212 Application for Permission to Reapply After Deportation:

  • The basis for deportation;
  • recency of deportation;
  • length of residence in the United States;
  • applicant’s moral character;
  • his respect for law and order;
  • evidence of reformation and rehabilitation;
  • family responsibilities;
  • any inadmissibility under other sections of law;
  • hardship involved to himself and others;
  • and the need for his services in the United States.

In Tin, the Regional Commissioner noted that the applicant had gained an equity job experience while being unlawfully present in the United States. The Regional Commissioner then stated that the alien had obtained an advantage over aliens seeking visa issuance abroad or who abide by the terms of their admission while in this country, and he concluded that approval of an application for permission to reapply for admission would condone the alien’s acts and could encourage others to enter the United States to work in the United States unlawfully. Id.

Matter of Lee, 17 I&N Dec. 275 (Comm. 1978) further held that a record of immigration violations, standing alone, did not conclusively support a finding of a lack of good moral character. Matter of Lee at 278.  Lee additionally held that,

“[T]he recency of deportation can only be considered when there is a finding of poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience [toward the violation of immigration laws] ….In all other instances when the cause of deportation has been removed and the person now appears eligible for issuance of a visa, the time factor should not be considered. Id.”

The 7th Circuit Court of Appeals held in Garcia-Lopes v. INS, 923 F.2d 72 (ih Cir. 1991), that less weight is given to equities acquired after a deportation order has been entered.  Further, the equity of a marriage and the weight given to any hardship to the spouse is diminished if the parties married after the commencement of deportation proceedings, with knowledge that the alien might be deported.

It is also noted that the Ninth Circuit Court of Appeals, in Carnalla-Munoz v. INS, 627 F.2d 1004 (2~h Cir. 1980), held that an after-acquired equity, referred to as an after-acquired family tie in Matter of Tijam, 22 I&N Dec. 408 (BIA 1998), need not be accorded great weight by the district director in a discretionary determination.

Moreover, in Ghassan v. INS, 972 F.2d 631, 634-35 (5th Cir. 1992), the Fifth Circuit Court of Appeals held that giving diminished weight to hardship faced by a spouse who entered into a marriage with knowledge of the alien’s possible deportation was proper.

In the present case, the AAO found that these legal decisions establish the general principle that “after-acquired equities” are accorded less weight for purposes of assessing favorable equities in the exercise of discretion.

The applicant and her spouse were married after her expedited removal from the United States; therefore their marriage and hardship were considered to be after-acquired equities and less weight was accorded for these favorable factors.

The I-212 waiver and appeal generally included, but was not limited to:

  • statements from the applicant and her spouse
  • psychological evaluations of the applicant and her spouse
  • medical records
  • financial records
  • statements from friends and family members
  • photographs and country conditions information about Mexico.

The favorable factors in this case that warranted approval of the applicant’s I-212 waiver by the AAO include:

  • the applicant’s lack of a criminal record;
  • her U.S. citizen spouse;
  • an approved Form I-130, Petition for Alien Relative;
  • hardship to the applicant; and
  • hardship to her spouse.

Specifically, concerning the applicant’s own hardship:

  • the applicant stated that she is suffering from severe clinical depression, panic and anxiety attacks, inability to sleep, weight fluctuation, hair loss, and bad moods.
  • A psychologist diagnosed her with symptoms of major episodic depression and generalized anxiety disorder.

Concerning the applicant’s spouse’s hardship:

  • the applicant’s spouse states that he was diagnosed with depression and anxiety disorder;
  • he has developed insomnia;
  • he has become lethargic;
  • he has gained 30 pounds;
  • he was prescribed medication for depression, anxiety and insomnia;
  • he approached his employer about working in Mexico part-time but was denied;
  • he and the applicant want to start a family;
  • he would have to give up his career of 14 years and professional license if he left the United States;
  • he has no family ties in Mexico;
  • he has lived his entire life in the United States and does not speak Spanish;
  • his parents and siblings are in the United States; and
  • Guadalajara is a dangerous area.

A psychologist who has evaluated the applicant’s spouse states that:

  • the applicant’s spouse suffers from depression, anxiety, and panic attacks;
  • he is taking medication for these issues;
  • he has evaluated the applicant’s spouse multiple times and finds that the applicant’s spouse’s condition has steadily deteriorated;
  • the diagnosis of depressive disorder has become major depressive disorder;
  • his generalized anxiety disorder has become panic disorder; and
  • he continues to suffer from insomnia.

The I-212 waiver and appeal also included:

  • articles addressing safety issues in Mexico;
  • statement from the applicant showing that she expresses remorse for her actions;
  • proof that the applicant has paid taxes on her earnings as a nanny while in the United States;
  • statements from friends and family describing the applicant’s good character

The AAO found that the unfavorable factors in this case includes:

  • the applicant’s period of unauthorized stay during her last visit to the United States;
  • her brief period of unauthorized employment;
  • the applicant was out of status for 53 days (noted by the AAO to be a relatively short period of time)

After a careful review of the record, the AAO found that the applicant established that the favorable factors outweigh the unfavorable factors in her case and that a favorable exercise of the Secretary’s discretion was warranted.

In weighing the favorable and unfavorable factors, the AAO determined that certain favorable factors were not after-acquired equities.  In addition, although less weight was given to the applicant’s after-acquired equities, these equities were still considered relatively significant due to the nature of the hardship detailed in the record.

In application proceedings it is the applicant’s burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, the AAO found that burden had been met and the applicant’s I-212 waiver was approved.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Client Approval: I-601 Waiver and I-212 Waiver Approved for 10 Year Unlawful Presence Bar and 10 Year Deportation Bar

Client Approval: I-601 Waiver and I-212 Waiver Approved for Brazilian Applicant

Our office received approval of both the I-601 Waiver (Application for Waiver of Excludability) and I-212 Waiver (Application for Permission to Reapply for Admission) for the Brazilian spouse of a U.S. citizen wife.  The couple have one daughter together who is two years old.  They also raise a 6 year old son together who is from a prior relationship of the U.S. citizen wife.

The Brazilian husband entered the U.S. on a B-1/B-2 visitor visa and overstayed for over approximately 1.5 years in the country.  He was then detained and removed from the United States.  He subsequently re-located from his home country of Brazil to the United Kingdom for greater economic opportunities that would allow him to support his family back in the United States.

The U.S. citizen wife contacted me after her husband attended his immigrant visa interview at the U.S. embassy and was denied for the immigrant visa after being deemed inadmissible to the United States.  He was subject to the 10 year “unlawful presence bar” pursuant to INA INA Section 212(a)(9)(B) as well as the 10 year “deportation bar” pursuant to INA Section 212(a)(9)(A)(i) and (ii).

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

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

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

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

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

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

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

The USCIS exercises broad discretion when adjudicating I-212 waiver requests for permission to reapply.  The following may be considered positive factors in granting permission for early re-entry:

  •  Basis for the deportation
  • Recency of deportation
  • Foreign national’s length of residence in the U.S., and status held during that presence
  • Family responsibilities and ties to the U.S.
  • Foreign natonal’s evidence of good moral character
  • Foreign national’s respect for law and order
  • Evidence of reformation and rehabilitation
  • Hardship involving the applicant and others
  • Need for the applicant’s services in the U.S.
  • Whether the applicant has an approved immigrant or non-immigrant visa petition
  • Eligibility for a waiver of other inadmissibility grounds
  • Absence of significant undesirable or negative factors

Negative factors may include:

  • Evidence of moral depravity, including criminal tendencies reflected by an ongoing unlawful activity or continuing police record
  • Repeated violations of  immigration laws, willful disregard of other laws
  • Likelihood of becoming a public charge
  • Poor physical or mental condition (however, a need for treatment in the United States for such a condition would be a favorable factor)
  • Absence of close family ties or hardships
  • Spurious marriage to a U.S. citizen for purpose of gaining an immigration benefit
  • Unauthorized employment in the United States
  • Lack of skill for which labor certification could  be issued
  • Serious violation of immigration laws, which evidence a callous attitude without hint of reformation of character
  • Existence of other grounds of inadmissibility into the U.S.

”Extreme hardship,” for purposes of the I-601 Waiver, has a special meaning under U.S. immigration law.  The factors considered relevant in determining extreme hardship include:

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

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

I drafted a comprehensive 25+ page waiver memorandum outlining the relevant case law favorable to my client’s situation.  It also discussed in detail the extreme hardships the U.S. citizen wife (and their children) are presently suffering from, and proved how they would worsen in the event of continued separation of this family.  I also highlighted a variety persuasive factors that I believed warranted an exercise of favorable discretion on the part of the USCIS.

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

  • The U.S. citizen wife suffers from a number of medical conditions including Gallstone Pancreatitis and emotional depression.  She almost died from post-operative pneumonia after a recent medical procedure.
  • The U.S. citizen wife’s U.S. citizen son suffers from Attention Deficit Hyperactivity Disorder (“ADHD”), Obsessive Compulsive Disorder (“OCD”), Pervasive Developmental Disorder, and Adjustment Disorder with Mixed Emotions and Conduct.  He sees a psychologist regularly and takes medication for his conditions.
  • The U.S. citizen wife resides with her elderly parents, both of whom suffer from serious medical conditions.  The U.S. citizen wife’s father suffers from Pulmonary Thromboembolism, Hypertension, and Emphysema and has been informed by his physician that he may not survive his next heart attack.  The U.S. citizen wife takes care of her parents as best she can on a daily basis and helps manage their medical treatment.
  • The U.S. citizen wife has only a high school education, does not speak Portuguese, and has minimal employment prospects in Brazil and the United Kingdom.
  • The Brazilian husband worked diligently while in the United States to support his wife and two children.  He has continued to do so while residing abroad, sending money to his family every month while enduring a painful separation of almost 4 years from his beloved wife and two children

As a result of the I-601 Waiver and I-212 Waiver prepared and submitted by my office, both waiver applications were approved and the Brazilian husband now resides in the United States as a lawful permanent resident of this country.

Client Approval: I-601 Prostitution Waiver, I-601 Fraud Waiver, and I-212 Removal Waiver Approved for South Korean Client

Client Approval: I-601 Prostitution Waiver, I-601 Fraud/Misrepresentation Waiver, and I-212 Waiver for Expedited Removal Approved for South Korean Client

Our office received approval of both the I-212 Waiver (Application for Permission to Reapply for Admission) and I-601 Waiver (Application for Waiver of Excludability) for the South Korean spouse of a U.S. citizen.  The South Korean wife was found inadmissible to the United States based on having admitted to previously engaging in prostitution in the United States; having committed fraud/misrepresentation in order to gain an immigration benefit; and having been expeditiously removed from the U.S. while attempting to enter the U.S. with a validly approved K-1 visa.

The U.S. citizen husband contacted my office after his fiancee’s removal from the United States due to our firm’s in-depth experience in securing I-601 “Prostitution Waivers” and I-601 “Fraud/Misrepresentation Waivers” over the past 12 years.  This was a particularly challenging case given the numerous grounds of inadmissibility that the South Korean wife was subject to: prostitution, fraud/misrepresentation, and a 5 year bar due to expedited removal from the U.S.

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.

In Matter of Tin, 14 I & N 371 (1973), and Matter of Lee, 17 I & N Dec. 275 (1978), the Board of Immigration Appeals established the standards to be considered in adjudicating applications for permission to reapply (applied for using the I-212 Waiver): 1. the basis for deportation; 2. recency of deportation; 3. applicant’s length of residence in the United States; 4. the applicant’s good moral character; 5. the applicant’s respect for law and order; 6. evidence of reformation and rehabilitation; 7. hardship involving the applicant and others; 8. the need for the applicant’s services in the United States; and 9. whether the applicant has an approved immigrant or non-immigrant visa petition.

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 and I-212 waiver applications, 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 client; and that my client’s admission would “not be contrary to the national welfare, safety, or security of the U.S.”  

In other words, 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 husband including Dysthymic Disorder and Generalized Anxiety Disorder, both of which were being aggravated by the prolonged separation of the couple
  • Various physical illnesses and conditions suffered by the U.S. citizen husband, including Chronic Hepatitis B that required constant medical monitoring and treatment in the United States
  • Various physical illnesses and conditions suffered by the U.S. citizen husband’s parents, both of whom relied upon their son to support them financially and manage their medical care
  • Significant amounts of U.S. educational and mortgage debt of the U.S. citizen, all of which would be in danger of default should the U.S. citizen husband be forced to re-locate to South Korea (a country where he neither spoke the language nor would be qualified to practice his specialized profession)
  • Evidence of rehabilitation of the South Korean wife including educational courses undertaken and numerous affidavits written in her support

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 parents in the event of their son’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,” I-601 “fraud/misrepresentation waiver,” and I-212 “removal/deportation waiver” prepared and submitted by my office, the I-601 and I-212 waiver applications were all approved.  The couple now happily reside together inside the U.S.  The South Korean wife holds U.S. permanent residence and will qualify to apply for U.S. citizenship within three years.

Current Processing Times for the 212(d)(3) Non-Immigrant Waiver

212(d)(3) Waiver Processing Times

The American Immigration Lawyers Association has provided an update on current processing times for the 212(d)(3) non-immigrant waiver that coincides with the experiences of my clients who I have prepared and filed non-immigrant waivers for.

Waivers submitted at Land Border Ports of Entry (generally for Canadians filing 212(d)(3) waivers in conjunction with the Form I-192): The Admissibility Review Office is reporting at least 130 days from the date of receipt of the waiver application to reach a decision.  A full review of circumstances may take up to six months or longer depending on the complexity of the situation and completeness of the application.

Waivers submitted at U.S. Consulates: The Admissibility Review Office is reporting at least 130 days from submission by the U.S. Department of State.

For further information, please refer to detailed information on the 212(d)(3) waiver and my legal services for non-immigrant waiver clients.

You may also review detailed  information on the 212(d)(3) waiver filing and decision-making process.