I-601 and I-212 Waivers Approved for U.S. Citizen Spouse and Mexican Spouse currently residing outside the United States

I-601 and I-212 Waivers Approved for Mexican Spouse of U.S. Citizen, both of whom reside outside the United States

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 Mexican spouse of a U.S. citizen husband, both of whom presently reside outside the United States.

Note: It is important to keep in mind that under current guidelines for the submission of I-601 or combined I-601 and I-212 waiver applications, immigrant visa applicants must first be denied for an immigrant visa by the consular officer at the U.S. embassy or consulate abroad, before they are eligible to submit their I-601 or combined I-601 and I-212 waiver packages.

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.

Our client was subject to the 5 year “expedited removal” ban due to being removed from the United States during her most recent attempted entry into the United States on a valid B-1/B-2 visa. During this incident, she was also charged with a life-time ban for fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

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 non-immigrant 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.

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.

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.  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).

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

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

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

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

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

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

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

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

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

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

We prepared a detailed and comprehensive waiver package requesting approval of our client’s I-601 and I-212 waiver applications, including a 36 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship,” together with a collection of 22 different exhibits to prove the essential elements of our case.

This was a particularly challenging case since both the U.S. citizen and foreign spouse presently reside in the country of Mexico. We therefore made sure to elaborate upon on the extreme hardships being presently suffered by the U.S. citizen spouse while living outside the United States; how these hardships are being presently exacerbated and continue to worsen due to his continued residence outside of the United States; and alternatively, how re-locating back to the United States without his spouse would also trigger extreme hardships that could jeopardize his psychological and physical health.

Relevant factors in this case included:

  • The U.S. citizen spouse suffers from Generalized Anxiety Disorder and Persistent Depressive “Dysthymic” Disorder, with mental health issues including addiction that date back to childhood and have required psychotherapeutic treatment and medication.
  • The U.S. citizen spouse attempted to reside in the United States while visiting his foreign spouse (who resides in Mexico) in the past, but the separation and stress proved psychologically devastating for him, and directly contributed to his relapse into addiction
  • The U.S. citizen spouse presently resides in Mexico with his foreign spouse but still maintains his U.S.-based employment, leading to unreasonably long commute times every single day, causing deterioration of his fragile psychological and emotional state
  • Re-location to Mexico has cut off the U.S. citizen spouse from his close family members, and prevents him from providing care and support for his seriously ailing father and grandfather. This is leading to psychiatric distress over being unavailable to provide the care and support his family members need, to whom he is very close.

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

I-601 Waiver Pursuant to INA 212(h)(1)(A) and INA 212(h)(1)(B) Approved for Israeli Applicant Charged with Crimes involving Moral Turpitude

I-601 Waiver Pursuant to INA 212(h)(1)(A) and INA 212(h)(1)(B) Approved for Israeli Applicant Charged with Crimes involving Moral Turpitude

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a client who was subject to a lifetime ban from being admitted to the United States pursuant to INA 212(a)(2)(A)(i)(I).

Our client was charged and convicted of conduct which occurred between 1995 and 1997, for which offense he was fined over $10,000 USD and given a sentence of 31 months. These convictions triggered the lifetime inadmissibility bar pursuant to INA 212(a)(2)(A)(i)(I) “Crimes involving moral turpitude.”  After being discharged from prison, he was removed from the United States and returned to his home country of Israel.

The waiver applicant’s U.S. citizen daughter contacted me after her father was denied admission to the U.S. following his immigrant visa interview at the U.S. embassy in Israel.  We initiated work on this case after a detailed consultation by first sending the clients our Waiver Worksheets.  Our Waiver Worksheets contain a comprehensive list of questions for our clients to answer along with a detailed checklist of supporting documents to gather – all for the purpose of eliciting every piece of information that will allow us to prepare a winning immigration waiver package on behalf of our clients.

A thoroughly researched and documented waiver memorandum and package was subsequently prepared by our office based on the fact that more than 15 years have passed since the applicant was convicted of criminal offense in the United States; the clear evidence that his admission would not be contrary to the national welfare, safety or security of the United States; and that he has been fully rehabilitated.

Legal Requirements of the § 212(h) Waiver

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))

INA 212(h)(1)(A) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), and (E) of the Act may be waived in the case of an alien who demonstrates to the satisfaction of the Attorney General that:

  • the activities for which she is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of status;
  • the admission would not be contrary to the national welfare, safety, or security of the U.S.; and
  • the alien has been rehabilitated;

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:

  • has a parent, spouse, son, or daughter who is a U.S. citizen or lawful permanent resident of the United States; and
  • the parent, spouse, son, or daughter would suffer “extreme hardship” on account of the alien’s ineligibility to immigrate

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.

In support of my client’s I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of his situation met the legal standards of both INA 212(h)(1)(A) and INA 212(h)(1)(B), including citations of existing case law favorable to my client’s case.  In other words, we went beyond what was required by presenting both legal arguments and documentary evidence to demonstrate eligibility for the I-601 waiver under two separate provisions of the Immigration & Nationality Act.

I showed that my client is rehabilitated and his admission not contrary to the national welfare, safety, or security of the U.S., based upon his long-history as a successful small business owner; his charitable acts including regularly donating food to local religious-educational institutions; as well as his selfless dedication to the care and education of his U.S. citizen children. I argued that even while in prison serving his sentence, he took advantage of the educational opportunities afforded to him to earn his high school equivalency; completed a custodial skills training program; and obtained early release from prison for good behavior.

I presented in-depth evidence that he committed himself to being an ethical, law-abiding, and respected member of his community after his release from prison.   His impeccable conduct for over 15+ years as well as a myriad of affidavits by friends and family proved that our client posed absolutely no risk to the safety or welfare of the U.S., and in fact, would substantially contribute to the U.S. if admitted as a permanent resident.

It is often important in waiver applications to demonstrate (when possible) an important turning point in an applicant’s life, which provides a marker that the USCIS officer can point to and remember has having effected a fundamental change in the applicant’s outlook and conduct.

We also discussed how the unique circumstances and dynamics of this family, and being unable to lawfully reside in the U.S., was presently causing extreme psychological, emotional, medical, and financial hardship to multiple U.S. citizen qualifying relatives.  We presented arguments showing how these extreme hardship factors would worsen if our client is not admitted into the United States.

An extensive collection of fifteen separate legal exhibits also provided a variety of evidence in support of our client’s good moral character and rehabilitation, as well as a finding of extreme hardship that his qualifying relatives would suffer in the event his I-601 waiver was denied.

As a result of our efforts, our client was approved for the 601 waiver and will be receiving his lawful permanent residence to join his family in the United States.

I-601 Waiver for Crime Involving Moral Turpitude Approved for K-1 Fiance

I-601 Waiver for Crime Involving Moral Turpitude Approved for K-1 Fiancé

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for the foreign fiancé of a U.S. citizen who is subject to a life-time bar from being admitted to the United States for conviction of a crime involving moral turpitude under INA Section 212(a)(2)(A)(i)(I).

Our office was contacted by our clients after the foreign fiancé attended his consular interview; was denied and deemed inadmissible for not disclosing a previously expunged conviction; and given a “Foreign Service of the United States of America Refusal Worksheet.” This refusal worksheet will typically notify the applicant of the specific inadmissibility (under the Immigration & Nationality Act) that the applicant is subject to, and whether the applicant is eligible to apply for a waiver or not.

Section 212(a)(2)(A) of the Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien was released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of the application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

The Board of Immigration Appeals (BIA) held in Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992), that:

[M]oral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.. ..In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

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

(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E).-The Attorney General [now the Secretary of Homeland Security, “Secretary”] may, in [her] discretion, waive the application of subparagraphs (A)(i)(I) … of subsection (a)(2) if-

(B) in the case of,an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it established to the satisfaction of the [Secretary] that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.

(2) the [Secretary], in [her] discretion, and pursuant to such terms, conditions and procedures as [she] may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.

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

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

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

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

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

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

Immediately after this case was opened, we initiated our comprehensive immigrant waiver preparation process that has allowed us to prepare winning I-601, I-601A, I-212, and 212(d)(3) waiver applications for the past 17+ years.

We provide our clients with a comprehensive waiver worksheet containing a thorough array of questions to answer about their lives.  This allows us to “brainstorm” every relevant factor (such as medical, physical, psychological, financial, legal, or other hardships, along with any other persuasive argument) that may apply. We then analyze each factor and decide upon the most effective way to present it to the USCIS in our waiver application.

Our waiver worksheet also contains a long checklist of supporting documents to gather and present based upon our experience with successful waiver applications submitted during the past 17+ years.

Overall, our waiver preparation process is constantly improved upon since we regularly prepare and submit winning immigrant waiver applications for clients who come from countries throughout the world.  We are proud to receive multiple approvals on I-601, I-601A, I-212, and 212(d)(3) waiver applications filed on behalf of our clients every single month.

The essential factors we highlighted in our 31 page legal memorandum (including 19 separate legal exhibits to prove every substantial element of our I-601 waiver case) include the following:

  • The U.S. citizen fiancée lives near her aging U.S. citizen parents and assists her father as he copes with a multitude of medical conditions. In addition to caring for her father, the U.S. citizen fiancée also struggles to manage her own health as she suffers from diabetes and mitral valve prolapse, and battles depression and anxiety.
  • The U.S. citizen fiancée harbors the emotional scars of a traumatic early life, and has been diagnosed with Generalized Anxiety Disorder and Persistent Depressive Disorder.
  • The U.S. citizen fiancée’s mother manages the the condition of diabetes and arthritis.
  • The U.S. citizen fiancée feels tremendous responsibility to care for her parents and continue to be physically present for them, especially as their health further deteriorates. She suffers immense anxiety at the possibility of re-locating abroad and being separated from her ailing parents, should the I-601 waiver application be denied
  • The U.S. citizen fiancée maintains employment, but she has accrued substantial credit card debt paying for flights to visit her foreign fiance abroad. More importantly, the stress of her fiancé’s uncertain immigration status, coupled with her psychiatric conditions, has caused her work performance to be negatively impacted and she is fearful of losing her job. The mental anguish she is facing prompted her to receive a referral to a counselor through the Employee Assistance Program at her place of employment.

In these types of cases, it is always important to present and prove the hardships of close U.S. citizen or lawful permanent relatives whose well-being are intimately tied to that of the qualifying relative; and demonstrate how all of the parties involved would be impacted by the immigration consequences of their situation.

Due to our efforts on behalf of this family, the I-601 Waiver application was approved. The K-1 foreign fiancé may now lawfully enter the United States; the couple can get married within 90 days of his entry into the U.S; and the foreign applicant may proceed with his process to Adjust Status to Lawful Permanent Residence thereafter.

I-601 Waiver for Multiple Crimes Involving Moral Turpitude and Adjustment of Status to Permanent Residence Approved

I-601 Waiver for Multiple Crimes Involving Moral Turpitude and Adjustment of Status to Permanent Residence Approved

Our office received approval of both the I-485 Application to Adjust Status to Permanent Residence and the I-601 Application of Waiver of Grounds of Inadmissibility for a citizen of Pakistan. Our client was subject to a life-time bar from being admitted to the United States as a lawful permanent resident due to conviction of multiple crimes involving moral turpitude under INA Section 212(a)(2)(A)(i)(I).  

Our client was previously granted asylum and living lawfully inside the United States when he was convicted of two misdemeanor crimes over 15 years ago and sentenced to 11 months of probation. Our office was engaged by the client to prepare and file the I-485 Application to Adjust Status package based on his marriage to a U.S. citizen spouse, as well as prepare and submit the I-601 “extreme hardship” waiver due to his inadmissibility for conviction of multiple CIMT (“Crimes Involving Moral Turpitude”).

We provided the client with a detailed letter going over the the I-485 Adjustment of Status process, including a comprehensive checklist of documents for him and his spouse to gather and return to our office. We prepared all of the required USCIS forms; verified that every piece of information required by the USCIS was answered accurately; and submitted a meticulously prepared Adjustment of Status package to the USCIS while simultaneously preparing the I-601 “extreme hardship” waiver.

I initiated our firm’s comprehensive process for preparation of powerful and effective immigration waiver applications.  I forwarded our Extreme Hardship Worksheet to my clients, which contains questions designed to elicit extreme hardships and other persuasive factors.  I also recommended the couple to a clinical psychologist well-versed in preparing psychological evaluations for immigration waivers and who offers a significantly discounted fee for my clients (please refer to my post on the elements of a powerful psychological evaluation for I-601 waiver applications for more details).

Once we identified the most important factors of the case, we prepared a comprehensive legal brief going over how the facts and circumstances of my client’s situation met the legal standards used to define “extreme hardship.” We prepared a 31 page legal memorandum thoroughly presenting relevant case law as well as the extreme hardship and discretionary factors relevant to this case.  A detailed table of exhibits providing objective proof of every crucial assertion made in our waiver was also included, as it is with all of our waiver applications.  

Section 212(a)(2)(A) of the Immigration & Nationality Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien was released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of the application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

The Board of Immigration Appeals (BIA) held in Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992), that:

[M]oral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.. ..In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

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

(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E).-The Attorney General [now the Secretary of Homeland Security, “Secretary”] may, in [her] discretion, waive the application of subparagraphs (A)(i)(I) … of subsection (a)(2) if-

(B) in the case of,an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it established to the satisfaction of the [Secretary] that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.

(2) the [Secretary], in [her] discretion, and pursuant to such terms, conditions and procedures as [she] may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.

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

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

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

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

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

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

Some of the favorable factors that contributed to approval of this I-601 “extreme hardship” waiver for conviction of multiple crimes involving moral turpitude include the following:

  • The U.S. citizen spouse suffers from three major psychiatric disorders: Generalized Anxiety Disorder, Persistent Depressive “Dysthymic” Disorder, and Post-Traumatic Stress Disorder – Chronic, with a significant family history of psychological illness.
  • The U.S. citizen spouse has a personal history of trauma that has precipitated the development of Post-Traumatic Stress Disorder, which has now been further exacerbated by the threatened separation from her husband
  • The U.S. citizen spouse suffers from asthma, sciatica, and pain due to ailments associated with advancing age. She can only manage her daily life and responsibilities due to the emotional and psychological support and physical assistance she receives from her husband
  • The U.S. citizen spouse’s emotional and psychological status is considered fragile, and long-term separation from her husband will place her at substantial risk for psychiatric decompensation according to a psycho-social evaluation conducted by a licensed clinical psychologist
  • The couple have significant financial debt, and are dependent on the husband’s meager income (with assistance from their adult children), to survive economically.

Our I-601 waiver also thoroughly addressed how the possible scenario of relocation from the U.S. (should the waiver not be granted and the couple be forced to relocate to Pakistan) would also cause extreme hardship to the U.S. citizen spouse:

  • The couple would live in poverty and in constant fear of assault as a member of a persecuted religious minority in Pakistan;
  • The U.S. citizen wife would be exposed to high risk of exposure to infectious disease in a country with third-world level medical infrastructure;
  • The U.S. citizen spouse would lose access to the quality health care needed to monitor and mitigate her asthma and sciatica; no longer be able to obtain and afford necessary medications, nor be able to receive the emergency medical care needed to potentially save her life in a medical crisis;
  • The U.S. citizen spouse would be unable to afford health insurance in Pakistan;
  • The U.S. citizen spouse would lose access to a medical infrastructure that ensures prescriptions are refilled in a timely manner;
  • The U.S. citizen spouse would lose access to competent mental health treatment services at a time when she will be under extraordinary stress and most in need of such services;
  • The U.S. citizen spouse would face stigma associated with mental illness and her religious status, impairing her re-integration into Pakistan’s culture and society;
  • The U.S. citizen spouse would have virtually no job prospects given that she has little employment experience, very limited education, the high rate of unemployment in Pakistan, and her advancing age;
  • The U.S. citizen spouse would face discrimination because of her religious status in a country that has legalized discrimination and has a history of assaults on this minority;
  • The U.S. citizen spouse would be wholly separated from her family in the U.S. and unable to afford to return to the U.S. on an emergency basis.

Extreme hardship is a requirement for eligibility, but once established it is but one favorable discretionary factor to be considered. Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). For waivers of inadmissibility, the burden is on the applicant to establish that a grant of a waiver of inadmissibility is warranted in the exercise of discretion. Id. at 299. The adverse factors evidencing an alien’s undesirability as a permanent resident must be balanced with the social and humane considerations presented on his behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of this country. Id. at 300.  In Matter of Mendez-Moralez, in evaluating whether section 212(h)(1)(B) relief is warranted in the exercise of discretion, the BIA stated that:

The factors adverse to the applicant include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record and, if so, its nature, recency and seriousness, and the presence of other evidence indicative of an alien’s bad character or undesirability as a permanent resident of this country . . . . The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where the alien began his residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this country’s Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value and service to the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien’s good character (e.g., affidavits from family, friends, and responsible community representatives). Id. at 301.

The BIA further states that upon review of the record as a whole, a balancing of the equities and adverse matters must be made to determine whether discretion should be favorably exercised. The equities that the applicant for relief must bring forward to establish that he merits a favorable exercise of administrative discretion will depend in each case on the nature and circumstances of the ground of exclusion sought to be waived and on the presence of any additional adverse matters, and as the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence. Id. at 301.

In this case, we also discussed and presented proof of every factor we determined to be important for purposes of securing approval of the I-601 waiver.  We determine these factors based upon close analysis of the clients’ personal situations as well as upon my experience of obtaining approval of I-601, I-212, I-601A, and 212(d)(3) waivers for the past 17 years.   These factors included but were not limited to:

  • A summary discussion of the convictions for crimes involving moral turpitude, as well as any extenuating circumstances that led to the violations and the corresponding the sentence received
  • The applicant’s long period of residence and productive service inside the United States including the presence of a U.S. citizen spouse and several U.S. citizen children
  • The applicant being well-respected in the local religious community of his faith
  • The applicant’s tremendous efforts to raise law-abiding children and support their higher education, which led to all of his children attaining bachelor-level university degrees or higher
  • Numerous sworn-affidavits by family, friends, and prominent officials in a position to judge the character and rehabilitation of the applicant

As a result of our efforts, both the I-485 Application to Adjust Status to Permanent Residence and the I-601 Application of Waiver of Inadmissiblity were approved and this couple can continue to reside lawfully inside the United States.

I-601 Waiver Approved for Vietnamese Daughter of U.S. Citizen Father

I-601 "Extreme Hardship" Waiver for Fraud/Misrepresentation Approved for Vietnamese Daughter

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

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

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

Our client was previously married to a U.S. citizen husband for 6 years. She tried to immigrate to the United States through marriage to her U.S. citizen spouse but was denied for an immigrant visa because the consular officer at the time believed their marriage to be fraudulent. She was subsequently denied again for a non-immigrant visa based on the prior finding of fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

I was contacted by the client and her family to assist them in preparing and obtaining approval of the I-601 waiver of the finding of inadmissibility by the US consulate in Ho Chi Minh City, Vietnam. The I-130 Petition for Alien Relative had been filed by our client’s U.S. citizen father; approved by the USCIS; National Visa Center processing completed; and the submission and approval of this waiver was the only way by which the applicant would ever be allowed to enter the U.S. as an immigrant (i.e. as a U.S. lawful permanent resident).

Note: It is important to keep in mind that under current guidelines for the submission of I-601 or combined I-601 and I-212 waiver applications, immigrant visa applicants must first be denied for an immigrant visa by the consular officer at the U.S. embassy or consulate abroad, before they are eligible to submit their I-601 or combined I-601 and I-212 waiver packages.

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

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

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

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

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

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

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

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

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

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

We prepared a detailed and comprehensive I-601 waiver application including a 30 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship,” together with a collection of 18 different exhibits to prove the essential elements of our case.

The “extreme hardship” factors presented as part of our case included included the day-to-day care that the U.S. citizen father requires due to suffering from Renal Failure, Hypertension, Prediabetes, Latent Tuberculosis, Hemorrhoids, and Back Pain. These conditions have left the U.S. citizen father unable to drive; greatly limited in mobility; and in persistent pain throughout the day.

Although the U.S. citizen father has his U.S. citizen wife as well as his two younger children who help him as best they can, we demonstrated that his elderly wife is greatly limited in her ability to provide the care that her husband needs due to her need to keep employed as well as her own infirmities. Additionally, we also showed that his younger daughter (who lives with her father and mother) also works full-time to financially support the family; her income is critical to meet the needs of this financially struggling family; and she simply does not have the time to devote to the constant care needed by her ailing father.

We went in-depth into this family’s history, showing the devastating toll having to leave the eldest daughter in Vietnam (while the rest of the family immigrated to the United States) has had on the U.S. citizen father, including a diagnosis of Generalized Anxiety Disorder and Persistent Depressive Disorder, made by a clinical psychologist who specializes in performing psycho-social evaluations for immigrant waiver cases.

Just as importantly, we demonstrated how the existing medical, psychological, emotional, and financial hardships being suffered by the U.S. citizen father are presently worsening due to the continued absence of the eldest daughter from the U.S. Without the medical, emotional, and financial support that the eldest daughter could provide from within the United States, the condition of the U.S. citizen father would continue to deteriorate, affecting the welfare of three other U.S. citizen family members who all desperately need the presence and support of the waiver applicant in their lives.

We also showed the potentially life-threatening impact that re-location to Vietnam would have on the U.S. citizen father given his compromised physical and psychological state, including the limited medical and psychological facilities that would be be available to him in Vietnam; his advanced age and inability to work to support himself in Vietnam; and the psychological toll of leaving his wife and two children in the U.S. would have on him, among other country-specific conditions.

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this family can now finally be united once again after a lengthy separation.

I-601 Waiver Approved for Multiple Convictions of Crimes Involving Moral Turpitude

I-601 Waiver Approved for Multiple Convictions of Crimes Involving Moral Turpitude

The applicant is a citizen of India who was found inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of two separate crimes involving moral turpitude: robbery and theft.

The applicant sought a waiver of inadmissibility under section 212(h) of the Act in order to reside in the United States with his U.S. citizen spouse.

Section 212(a)(2)(A) of the Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien was released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of the application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

The Board of Immigration Appeals (BIA) held in Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992), that:

[M]oral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.. ..In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

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

(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E).-The Attorney General [now the Secretary of Homeland Security, “Secretary”] may, in [her] discretion, waive the application of subparagraphs (A)(i)(I) … of subsection (a)(2) if-

(B) in the case of,an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it established to the satisfaction of the [Secretary] that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.

(2) the [Secretary], in [her] discretion, and pursuant to such terms, conditions and procedures as [she] may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.

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

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

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

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

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

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

Some of the favorable factors that contributed to approval of this I-601 “extreme hardship” waiver for convictions of multiple crimes involving moral turpitude include the following:

  • The qualifying relatives for purposes of the I-601 waiver include the U.S. citizen spouse and two U.S. citizen children, all of whom reside in the United States
  • The U.S. citizen children are already developing behavioral problems due to separation from their father, including the youngest child refusing to eat and becoming critically underweight
  • The U.S. citizen wife has been diagnosed with psychological disorders, with a personal and family history of chronic illness and anxiety
  • The Indian husband’s income is not sufficient to support two households (his own and that of his family in the U.S.), and this is causing severe financial stress that is exacerbating the physical, psychological, and emotion state of the U.S. citizen wife and their children
  • The U.S. citizen wife suffers from a physical ailment, which only got worse during her attempted residence in India to be with her husband

Extreme hardship is a requirement for eligibility, but once established it is but one favorable discretionary factor to be considered. Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). For waivers of inadmissibility, the burden is on the applicant to establish that a grant of a waiver of inadmissibility is warranted in the exercise of discretion. Id. at 299. The adverse factors evidencing an alien’s undesirability as a permanent resident must be balanced with the social and humane considerations presented on his behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of this country. Id. at 300.  In Matter of Mendez-Moralez, in evaluating whether section 212(h)(1)(B) relief is warranted in the exercise of discretion, the BIA stated that:

The factors adverse to the applicant include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record and, if so, its
nature, recency and seriousness, and the presence of other evidence indicative of an alien’s bad character or undesirability as a permanent resident of this country . . . . The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where the alien began his residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this country’s Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value and service to the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien’s good character (e.g., affidavits from family, friends, and responsible community representatives). Id. at 301.

The BIA further states that upon review of the record as a whole, a balancing of the equities and adverse matters must be made to determine whether discretion should be favorably exercised. The equities that the applicant for relief must bring forward to establish that he merits a favorable exercise of administrative discretion will depend in each case on the nature and circumstances of the ground of exclusion sought to be waived and on the presence of any additional adverse matters, and as the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence. Id. at 301.

In this case, we also discussed and presented proof of every factor we determined to be important for purposes of securing approval of the I-601 waiver.  We determine these factors based upon close analysis of the clients’ personal situations as well as upon my experience of obtaining approval of I-601, I-212, I-601A, and 212(d)(3) waivers for the past 15 years.   These factors included but were not limited to:

  • A summary discussion of the convictions for crimes involving moral turpitude, as well as any extenuating circumstances that led to the violations and the corresponding the sentence received
  • The applicant’s employment for a prestigious multinational company
  • The applicant’s involvement in humanitarian efforts
  • The applicant’s acceptance at one of the most prestigious universities in the world for graduate-level study
  • Numerous sworn-affidavits by family, colleagues, and prominent officials in a position to judge the character and rehabilitation of the applicant

As a result of our efforts, the I-601 waiver was approved and this family now resides together lawfully inside the United States.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I-601 Waiver for Prostitution Approved for Wife of U.S. Citizen from Thailand

I-601 Waiver for Prostitution Approved for Wife for U.S. Citizen from Thailand

Our office received approval of the I-601 Waiver (Application for Waiver of Grounds of Inadmissibility) for the Thai spouse of a U.S. citizen who was found inadmissible to the United States after being charged with engaging in prostitution due to her previous employment as a masseuse at a massage spa in Thailand.

The U.S. embassy in Bangkok, Thailand is well-known for engaging in rigorous consular interviews – conducting both procedural (checking a computerized database) and investigative checks on its applicants, and vigorously charging applicants with inadmissibility if they suspect certain types of conduct.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We prepared a comprehensive 34-page legal brief going over how the facts and circumstances of my clients’ situation met the legal standards used to define “extreme hardship”; thoroughly demonstrated “rehabilitation” of the Thai spouse; and showed that the Thai spouse’s admission would “not be contrary to the national welfare, safety, or security of the U.S.”  

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

The positive factors in this case included:

  • Psychological disorders suffered by the U.S. citizen spouse which substantially impairs his ability to function in everyday life.  The psychological disorders are being being aggravated by the prolonged separation of the couple and the unique circumstances of their individual and collective lives.
  • Significant health issues suffered by the U.S. citizen spouse, including a pulmonary embolism in the past, which now requires regular medical check-ups and the taking of medication for the rest of his life
  • A serious medical condition suffered by the Thai spouse, which requires extremely complicated and high-risk surgery to correct.  Such  surgery is very difficult to obtain from a qualified surgeon in Thailand and complications from the surgery could include nerve damage and infertility.  This situation adds to the mental distress being experienced by the U.S. husband.
  • The U.S. citizen husband is financially responsible for three households: his own, his wife’s, and that of his wife’s parents.  Becoming incapacitated due to his various ailments would lead to financial collapse for the U.S. citizen husband as well as that of his extended family.
  • The U.S. citizen husband has served multiple long-term tours abroad in a civilian position to support the U.S. military in its “War on Terror.”  He has only recently re-united with his family in the U.S. and cannot bear the thought of leaving the U.S. once again.  He also does not speak Thai and would have no means for supporting himself financially in Thailand.
  • Country conditions of Thailand would make it difficult for the U.S. citizen husband to receive the standard of medical care he now receives in the U.S.  The current state of Thai medical care also makes it very difficult for his wife to receive the type of specialized surgery she needs for her serious condition.
  • Evidence of rehabilitation of the Thai spouse includes 14 affidavits of good moral character from members of her family; a Buddhist monk; a local government official; prominent members of the business community; and many others who can attest to her honesty, dedication to family, and character.  It also includes her complete honesty during her consular interview; her history of having studied massage therapy (including evidence of schooling in the field); and the reason for her employment at the massage parlor (which was to financially support her impoverished parents).

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 spouse herself (the waiver applicant), would in turn impact the U.S. citizen 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 waiver applicant plays an integral role in the overall well-being of the U.S. citizen and is needed to assume a vital, day-to-day role in his physical, emotional, and psychological care and oversight.

As a result of the I-601 “prostitution waiver” expeditiously prepared and submitted by my office, the I-601 waiver application was approved by the USCIS.  The couple now happily reside together inside the U.S.

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).