212(d)(3) Non-Immigrant Waiver for E-2 Treaty Investor Visa Application Approved

212(d)(3) Non-Immigrant Waiver for E-2 Treaty Investor Visa Application Approved

We received  approval for the 212(d)(3) non-immigrant waiver prepared on behalf of a client who was subject to the fraud/misrepresentation life-time bar pursuant to INA Section 212(a)(6)(C)(i).

Our client is the owner of a US start-up company which develops, markets, and operates cost-effective web and mobile applications for small-scale organizations.  He contacted my office to help him obtain approval of the 212(d)(3) non-immigrant waiver so that he could enter the U.S. as an E-2 Treaty Investor Visa Holder to direct and manage his start-up more effectively. 

We subsequently prepared a comprehensive 212(d)(3) non-immigrant waiver  in the form of a legal brief discussing the three legal factors set forth by Matter of Hranka, 16 I&N Dec. 491 (BIA 1978).

In the case, Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the Board of Immigration Appeals reversed a district director’s denial of a waiver application filed by a Canadian woman who had been deported for engaging in prostitution and admitted to previous heroin use.  She filed her application only two years after having been deported.  She requested entry to visit relatives and engage in various tourist activities.

In overturning the district director’s decision to deny the application, the BIA accepted as proof of rehabilitation letters from the applicant’s mother, and the principal of the high school the applicant had attended, who is a psychologist.  It held that the applicant’s reasons for entering the United States need not be compelling.  The BIA articulated three criteria for granting a waiver under INA 212(d)(3)

1.      The risks of harm in admitting the applicant;

2.      The seriousness of the acts that caused the inadmissibility; and

3.      The importance of the applicant’s reason for seeking entry.

Both Department of State and the Foreign Affairs Manual specify that any nonimmigrant may request a waiver as long as his or her presence would not be detrimental to the United States.  They provide that “while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” See 22 CFR 40.301 Foreign Affairs Manual (FAM) 40.301 N3.  Furthermore, the Admissibility Review Office has confirmed that it will follow and adhere to Matter of Hranka in adjudicating requests for INA 212(d)(3) waivers.

In our client’s case, we addressed each of the factors laid out by Matter of Hranka including but not limited to:

  • The non-existent risk of our client overstaying or violating the terms of an E-2 visa, given the substantial amount of capital already invested in his U.S. start-up; the revenues currently being generated by the company; large-order commitments by U.S. customers; our client’s personal history which demonstrates a truly dedicated focus on bring his product and company vision to fruition; as well as our client’s personal and financial ties to his home country (where he owns property, operates another company, and where all of his close family members reside)
  • An extensive set of mitigating factors as it relates to the violation that caused our client’s inadmissibility
  • Our client’s history of recognized leadership and accomplishments in business and technology, including a demonstrated commitment to public service and contributing towards a better civic society
  • A variety of positive factors unique to our client’s situation that clearly warranted favorable discretion on the part of the US consular officer and the Admissibility Review Office

Based upon these factors, our client was approved for the 212(d)(3) non-immigrant waiver by the Admissibility Review Office in Washington D.C., and subsequently, for the E-2 Treaty Investor Visa.  These types of cases are difficult to get approved due to the tendency of US consular officers to categorically reject non-immigrant visa applications with only a cursory review when a ground of inadmissibility is present.

Due to our extensive preparation of the waiver and careful lobbying undertaken to ensure its adequate consideration and review by the U.S. consulate, our client is now able to enter the United States and further the success of his promising technology-based start-up.

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

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

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

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

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

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

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

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

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

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

Negative factors may include:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Negative factors may include:

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

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

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

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

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

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

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

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

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

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

How to be an Effective Client that Immigration Attorneys Love

How to be an Effective Client that Immigration Attorneys Love

I have successfully represented countless husbands, wives, fiancees, and family members on I-601 “Extreme Hardship” Waivers, I-601A Provisional Waivers, I-212 Waivers, and 212(d)(3) Non-Immigrant Waivers since 2002.

I have also obtained approval for K-1 Fiancee Visas, K-3 Spouse Visas, Family-based Immigrant Visas, and Adjustments of Status for clients that come from countries throughout the world and reside in cities across the United States.

During this time, I have interacted with practically every type of client.

While there are numerous tips offered to potential clients on how to hire the right immigration attorney for your case (specific and in-depth experience handling your type of case; membership in the American Immigration Lawyers Association; attorney’s academic and professional background that ensures a certain level of professionalism and competence; lawyer’s adept use of technology such as e-mail, video conferences, digital scanning, immigration forms management software, blogging, etc.), it is just as important that an immigration client does whatever he or she can to help in the successful resolution of their legal matter.

Here are things that you can do to make yourself a client that immigration attorneys will LOVE:

  1. Appoint one person as the “lead contact” for your lawyer.  For example, if you are a husband and wife, then choose one person who is the primary person to e-mail, telephone, and maintain contact with your lawyer. This way, there is one chain of communication to follow and everyone can stay on the same page as the case moves forward.  A corollary to this is that the “lead contact” does his or her part to keep the other family member(s) up-to-date on communications with your lawyer and the status of your case.
  2. Read through the documents sent to you by your attorney before asking questions.  When a case is opened, I always provide my clients with a detailed letter that describes the different phases of their immigration case.  I also include a checklist of supporting documents to gather.  For I-601, I-601A, I-212, and 212(d)(3) waiver cases, my clients are provided in-depth instructions and a “Waiver Worksheet” which goes over questions to answer about their lives as well as relevant documents to gather.  It is very important to read over such documents carefully BEFORE you pose further questions to your lawyer.
  3. Provide your digitally scanned supporting documents in an organized manner.  The supporting documents sent to your immigration lawyer should ideally be digitally scanned into PDF format and labelled with the an accurate title that describes its content.  For example, PsychEvaluation.PDF would be the right way to forward  a 12 page psychological evaluation.  Sending that same document in 12 separate files, each one labelled Doc001.JPG, Doc002.JPG, Doc003.JPG is the WORST way you can send voluminous documents to your lawyer.
  4. Provide paper documents in an organized manner.  The same principle applies if you mail documents to your immigration lawyer.  A giant pile of bills, medical records, letters, court records, and immigration documents, sent without any sort of organization or labels makes it extremely difficult to sort through.  Use paper clips to organize each type of document and put a sticky on it that describes what it is.  For example, paper clip the 12-page psychological evaluation and put a sticky on it that states “Psychological Evaluation of Beth Davis from Dr.  Michael Jones.”
  5. Send the supporting documents requested all at once.  Related to the above, it is best to submit the supporting documents requested by your immigration lawyer in one single package (or e-mail) whenever possible.  Sending documents piece-meal so that one document is received on Tuesday, another on Friday, then another two weeks later, can delay processing of your case and subject you to the unpredictable nature of the US postal system.
  6. Answer all the questions requested on client questionnaires.  If your lawyer is having you fill out a client questionnaire, answer ALL OF IT.  Every single question.  If it is being asked, it is probably important to answer.  Do not skip a question because you do not have ready access to the information.  Look it up and if the information is impossible to obtain, say so on the questionnaire (by writing “Unknown” or “Unavailable”).
  7. Avoid sending 10 emails when 1 will do.  I have had a few clients send me 10-15 emails in one day, each email asking me a question that is often repetitive.  While I offer unlimited consultations to my clients throughout their case, it is important to realize that lawyers need time to focus and work on cases.  If you do have multiple questions, send them in one email, with each question labelled with a number.
  8. Do not ask the same question over and over again.  Many clients are stressed and sometimes distressed about the ultimate outcome of their immigration case.  However, asking the same question repeatedly (e.g. “Do you think this case will be approved?”) is not a productive use of time for you or your attorney.  It is far better to focus on gathering the supporting documents indicated to you by your attorney, organizing them in the best possible way, and responding to your attorney’s requests and questions in a prompt manner.
  9. “What is the status of my case?” or “How much longer until my case is approved?”   These are two of the most common questions that immigration lawyers receive from their clients.  If your lawyer filed a petition with the USCIS, you can check on its status by entering your USCIS case # here: USCIS Case Status Check.  Average USCIS processing times can be checked here: USCIS Processing Times   If your lawyer provided you a rough time frame for a decision on your case (e.g. 5 months for a decision once the I-601 Waiver or I-601A Provisional Waiver, is submitted), and 2 months have passed since filing, you can assume 3 months are left.  There is probably no need to ask “How much longer?” to your immigration lawyer when simple subtraction will do (e.g. 5 months – 3 months = 2 months left).
  10. Do not treat or view your attorney as an adversary Part 1.  There are a few clients who view gathering supporting documents requested by their lawyer or answering the questions posed to them as a burdensome chore.  As a result, they simply ignore the request or respond in a haphazard manner.  Their immigration lawyer then requests the missing documents or information over again.  The client responds with antagonism (“I already sent you all that 2 weeks ago!  When are you going to be finished?”)  This can lead to a vicious cycle where the client-attorney relationships may be damaged.  If your attorney asks you a question or requests a document, you can be fairly certain that it is IMPORTANT!  Treat it with the priority it deserves because they are trying to HELP you.
  11. Do not treat or view your attorney as an adversary Part 2. The USCIS, the National Visa Center, and US embassies around the world are not the most efficient organizations around.  There have been numerous instances of technical breakdowns or outright negligence on the part of government agencies and their employees throughout the years.  If the timeline originally provided to you by your immigration lawyer slips because processing times have lengthened, try to avoid taking out your frustration on your immigration attorney.  Timelines lengthen or shorten regularly and patience can be your greatest ally when trying to cope and deal with the US government bureaucracy.
  12. Pay your legal fees on time.  Needless to say, if your immigration lawyer has offered you a payment plan, it is important to stick to it.  Immigration lawyers do not want to be bill collectors, having to remind their clients of a late payment.
  13. Show you care and share. Great immigration lawyers usually get clients through word-of-mouth.  With the popularity of Facebook and other social networks, client testimonials or reviews can now be shared with others in an easy way.  I always appreciate clients who go to our official Facebook page and post a positive review.  An immigration lawyer is far more likely to remember you and jump at the opportunity to answer your questions (for free) in the future if you do this.