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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Consular Recommendation of the 212(d)(3) Non-Immigrant Waiver Application to the CBP

Relevant Factors for the 212(d)(3) Waiver

INA Section § 212(d)(3)(A) of the Immigration and Nationality Act states in relevant part:

Except as provided in this subsection, an alien (i) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General, or (ii) who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

INA §212(d)(3)(A) thus waives virtually all inadmissibility grounds for non-immigrants including:

  • health-related grounds (communicable disease, mental illness, drug abuser or addict);
  • criminal grounds (including crimes involving mortal turpitude, multiple criminal convictions, drug violations, and prostitution);
  • likelihood of becoming a public charge;
  • immigration violations (including failure to attend removal proceedings, misrepresentation, false claims of citizenship, alien smuggling, aiding and abetting unlawful employment, student visa abusers, and overstays subject to three– and ten-year bars);
  • grounds covering persons ordered removed upon arrival, unlawful voters, and U.S. citizens who renounced citizenship to avoid taxation; and
  • involvement in terrorist activities and association with terrorist organizations.

212(d)(3) non-immigrant waivers by visa applicants are generally filed at a U.S. consulate or embassy abroad.  Visa exempt nationals such as Canadians generally have to file in advance of their date of travel at a CBP-designated port of entry or pre-clearance office.  All 212(d)(3) waiver applications are then forwarded to the U.S. Customs and Border Protection’s Admissibility Review Office in Washington D.C.  Thus, it is not the U.S. Department State or the USCIS that ultimately makes the decision to approve or deny a 212(d)(3) waiver.  It is U.S. Customs and Border Protection.

The CBP ARO does consider the same factors used by the U.S. Department State when reviewing 212(d)(3) non-immigrant waiver applications but is not bound by them.  Specifically, the ARO will first look at whether the 212(d)(3) waiver was “recommended” by the U.S. consular officer.  In making a recommendation to CBP, State Department officers are instructed to include:

• The relevant humanitarian, political, economic or public relations factors;

• a statement (where applicable) that DOS is satisfied the alien has a residence abroad which he or she has no intention of abandoning;

• a statement that the alien is properly classified as a nonimmigrant;

• the officer’s precise recommendation and the reasons therefor.

Consular officers are also instructed that a 212(d)(3) non-immigrant waiver may be requested (except as precluded by statute) for any nonimmigrant alien whose presence would not be detrimental to the United States and that the law does not require that recommendations be limited to exceptional, humanitarian or national interest cases.

In fact, consular officers are instructed to exercise discretion and good judgment but may recommend waivers “for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.

In my experience however, some consular officers are not familiar with the 212(d)(3) waiver process.  I have had cases where thoroughly prepared 212(d)(3) waiver packages were initially not accepted by the consular officer at the visa interview; only to be accepted a few days later after repeated inquiries by my office and another visit by the applicant to the consulate.  It is important to be clear, concise, and persistent in these matters.

Once the 212(d)(3) non-immigrant waiver is received by the ARO, the reviewing officer at the CBP considers all of the above and also considers that the Congress has deemed these aliens inadmissible to the United States.  In considering the waiver, the CBP officer will weigh the benefit, if any, to the United States should the waiver be granted.  In situations where the proposed visit is for the purpose of medical treatment, the CBP officer will consider whether such treatment is available to the alien abroad.  Above all, CBP officers are reminded that granting of waivers of inadmissibility grounds should not be routine and available just for the asking.  Thus, it is extremely important that every 212(d)(3) non-immigrant waiver application be well-prepared with a detailed legal and factual analysis and well-documented with essential support documents.

However, there may be instances where the consular officer refuses to “recommend” a waiver to the ARO in the first place.  This may occur when they believe a waiver recommendation is not warranted given factors such as the recency and seriousness of the crime or offense, type of disability, reasons for the proposed travel to the United States and the probable consequences, if any, to the public interests of the United States.  What many applicants (and lawyers) do not seem to realize is that there is a process in place for mandatory referrals of 212(d)(3) waiver applications to the Department of State Visa Office for consideration of a “recommendation” to the CBP ARO:

Mandatory referrals are required in the following situations:

  • Any case where it is requested by the alien or an interested party in the U.S. that it be forwarded;
  • Any case where the consular officer knows or has reason to believe that pertinent considerations not available at the post may be available to or through the Department;
  • Prior refusals;
  • Any case where the alien’s presence or activities in the U.S. might become a matter of public interest or of foreign relations significance;
  • Any case in which the Department has mandated an advisory opinion be sought;
  • The case of any alien who is a national of a country which the U.S. does not recognize or with which we have no diplomatic relations;
  • The case of any alien not classifiable under INA Section 101 (a) (15) (A) or (G) but destined on official business to the United Nations;
  • Cases of any SILEX or BUSVIS/SILEX alien and of certain CHINEX or BUSVIS/CHINEX aliens;
  • The case of any Soviet applying for an I visa;
  • Any case involving 212(a)(3)(B);
  • Any cases in which the consular officer recommends a term of greater than one year.

Having said that, the decision-making of consular officers are always given deference.  It is always better to present a strong 212(d)(3) waiver application from the beginning and communicate constructively with the consular officer to secure a recommendation to the CBP ARO.

Once a waiver is approved, they are typically approved for a one year period with multiple entries allowed.  After the first or second extension, a 5-year validity 212(d)(3) waiver can be given.  However, keep in mind that multiple entry waivers are not given to an alien who:

• Has a mental or physical disorder;
• Is a narcotic drug addict or a narcotic trafficker (multiples have been granted before in special cases with DEA/Customs/FBI involvement);
• Is afflicted with a communicable disease;
• Was convicted of a crime involving moral turpitude and is less than 5 years post-release;
• Has a prostitution related activity within 10 years of visa application.

Client Approval: 212(d)(3) Waiver Approved for Mexican Professional Requiring Corporate Training in the U.S.

Client Approval: 212(d)(3) Waiver Approved for Mexican Professional Requiring Corporate Training in the U.S.

We recently received approval for a 212(d)(3) non-immigrant waiver prepared on behalf of a Mexican client who was subject to a lifetime bar from the United States due to a charge of fraud/misrepresentation pursuant to INA 212(a)(6)(c)(i).  Our client was also expeditiously removed twice from the United States and subject to the 20 years bar pursuant to INA 212(a)(9)(A)(i).

I 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 my client’s case, I addressed each of the factors laid out by Matter of Hranka while emphasizing the importance of my client’s role in the multinational company he now worked for; the critical nature of the training he needed to receive in the United States for his professional career as well as for his employer (which held direct ramifications for benefiting the economic welfare of the United States); previous Dept. of State error that directly led to his second expedited removal from the U.S.;  his ties to Mexico including his wife and children; and his history of law-abiding and ethical behavior which was supported by numerous affidavits from his colleagues and friends.

Based upon these factors, my client was approved for the 212(d)(3) non-immigrant waiver by the Admissibility Review Office in Washington D.C., and subsequently, for the B-1 Visitor Visa.  He is now able to enter the United States to participate in training mandated by his company and continue his successful career with a respected multinational corporation.

I-212 and I-601 Waivers Approved for Ukrainian by AAO

I-212 and I-601 Waivers Approved for Ukrainian by AAO

I-601 Waiver and I-212 Waiver Legal News

The applicant in this case is a native of Russia and a citizen of Ukraine, who was found to be inadmissible to the United States under sections 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for procuring a visa by willfully misrepresenting a material fact, and pursuant to section 212(a)(9)(A)(i) of the Act, 8 U.S.C. § 1182(a)(9)(A)(i), due to her expedited removal from the United States.

The applicant applied for a waiver of inadmissibility (also known as the I-601 or “extreme hardship” waiver) and permission to reapply for admission (also referred to as the I-212 waiver) in order to reside in the United States with her U.S. citizen husband.

The take-away from this case is that when the I-601 and I-212 waivers are filed together, approval of the I-601 waiver upon finding of extreme hardship and exercise of favorable discretion, also means approval of the I-212 waiver.  This means that waiver applicants applying for the I-601 and I-212 waivers  together, should focus most of their efforts on proving extreme hardship to the qualifying relative as well as on demonstrating why a favorable exercise of discretion should be granted.

Section 212(a)(9)(A) provides, in pertinent part:

(i) Arriving Aliens. -Any alien who has been ordered removed under section 235(b)(l) or at the end of proceedings under section 240 initiated upon the alien’s arrival in the United States and who again seeks admission within 5 years of the date of such removal … is inadmissible.

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

(I) has been ordered removed under section 240 or any other provision of law, or

(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien’s departure or removal … is inadmissible.

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

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

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.

Section 212(i)(1) of the Act provides:

The [Secretary] may, in the discretion of the [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 [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[ … ]. 

The favorable factors in this case cited by the AAO in finding extreme hardship to the U.S. citizen spouse are the following:

  • The U.S. citizen husband is 60-years old.
  • He has a number of medical conditions for which he receives regular treatment and monitoring including rheumatoid arthritis (generalized inflammation of the joints), osteoarthritis (localized inflammation due to wear and tear) of the hand/wrist, as well as hepatitis C and a latent form of tuberculosis (TB) infection.
  • While he has maintained an active lifestyle, the U.S. citizen husband has suffered painful flare-ups while overseas with his wife.
  • The U.S. citizen husband’s chronic infections are actively monitored by his physician with an eye toward offering his patient access to new therapies.
  • The Ukrainian wife’s presence in the U.S. spares the U.S. citizen husband from overseas visits to ease the pain of separation.  This thereby minimizes the chances that painful episodes experienced during visits to Ukraine and Mexico will reoccur.
  • The State Department advises that U.S. citizens who are ill or infirm not travel to the Ukraine, as “those with existing health problems may be at risk due to inadequate medical facilities.”
  • The State Department substantiates the U.S. citizen husband’s concerns for his wife’s personal safety and security by noting that street crime is a serious problem, corruption pervasive among the police, and emergency services far below western standards.
  • The U.S. citizen husband was married for 34 years before marrying the applicant in 2010.  He observes that he does not do well alone.  A psychotherapist concluded, based on targeted questionnaires and symptoms including sadness, crying, insomnia, loss of appetite/weight, headaches, and problems concentrating, that the U.S. citizen husband suffers from major depression stemming from prolonged separation from his Ukrainian wife.
  • The psychological report confirms that the U.S. citizen husband receives little relief from anti-depressant medication and sleep aids prescribed by his doctor, and supports the therapist’s conclusion that his psychological distress will continue to worsen in his wife’s absence.
  • The U.S. citizen husband’s second wife, with whom he shares custody of their six year old son, has conditioned granting full custody upon the Ukrainian wife’s presence as a homemaker to the household.  The U.S. citizen husband is eager to have his son live with him and his wife in a family unit.
  • The U.S. citizen husband has many ongoing expenses, including high fixed costs for his business; tuition and travel costs for his young son currently residing in Kentucky with his mother and attending school; travel expenses to visit with his wife abroad; and costs of maintaining regular communications with his wife to ease the pain of separation.
  • The U.S. citizen husband is struggling to maintain a home in Alaska and a Kiev rental apartment for his wife, while also paying for significant expenses associated with supporting his son in Kentucky.  The expense of maintaining two households have strained his financial resources and forced him to access retirement accounts to make ends meet.

The factors cited by the AAO in exercising favorable discretion in this matter are:

  • The extreme hardships the applicant’s husband would face if the applicant were to reside in Ukraine, regardless of whether he accompanied the applicant or remained in the U.S.
  • The applicant’s lack of any criminal record
  • Supportive statements and passage of nearly four years since the applicant’s misrepresentations
  • Her ready admission to and contrition about her misrepresentations.

As with all cases, a thorough overview of the case law, an in-depth and persuasive discussion of the relevant factors, along with a comprehensive array of supporting documents to prove the statements made, are required for approval of these types of applications.

212 Waiver Legal News: AAO Approves I-212 Waiver and I-601 Extreme Hardship Waiver

212 Waiver Approved - Extreme Hardship Waiver Approved

The applicant is a citizen of Albania who entered the U.S. on a false Greek passport.  After denial of his applications for asylum and withholding of removal, he was removed from the United States.  He was deemed inadmissible to the United States based on having used fraudulent documents and his unlawful presence of more than one year under Sections 212(a)(6)(C)(i) and 212(a)(9)(B)(i)(II) of the Immigration & Nationality Act.  He also required consent to reapply for admission to the United States until 10 years have passed due to having been removed from the United States.

Section 212(a)(6)(C)(i) of the INA provides that:

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.

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

The [Secretary] may, in the discretion of the [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 [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…

Section 212(a)(9)(B) of the INA provides that:

(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 such 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…

The applicant in this case has three qualifying relatives for the purposes the I-601 Extreme Hardship waiver: his U.S. citizen spouse, his U.S. citizen mother, and his lawful permanent resident father.  He also required approval of the I-212 Consent to Reapply for Admission to the United States based his removal from the U.S.

This case contains so many factors deemed persuasive by the USCIS that I decided to list all them all below.  When evaluating the chances of your own extreme hardship waiver case, you should look to see whether the hardships and favorable factors found in this case can also be found in your own situation.  It is important to note that psychological and medical evaluations appear to have been done at multiple points in time.  Each evaluation showed a deterioration in the psychological and medical condition of the qualifying relative, thus adding credence to the claim that they are suffering extreme hardship in the absence of the applicant.

Please also keep in mind that each factor must be discussed in two scenarios: if the applicant and the qualifying relative are separated; or if the qualifying relative leaves the United States and re-locates to the applicant’s home country.  Additionally, each factor must be supported by reliable documentary evidence.  I routinely prepare I-601 and I-212 waiver letters that number at least 10-15 pages with voluminous evidence organized as exhibits to support the claims made in the extreme hardship waiver statement.

The favorable factors in this case are as follows:

  • Both parents of the applicant has type 2 diabetes and high cholesterol.
  • The applicant’s 63 year old father is hypertensive and has had 2 strokes.
  • The applicant’s 57 year old mother is being monitored for coronary heart disease and possible breast cancer, and has been diagnosed with major depression and anxiety as a result of separation from her son and related need to sell her restaurant.
  • The applicant, before his deportation, took his parents to their physicians, made sure they took their medication, and watched over them.
  • The applicant’s U.S. citizen is also intimately involved facilitating medical care for her in-laws.
  • The applicant’s U.S. citizen wife has been diagnosed with major depression, paranoia, and anxiety and suffers from insomnia, anxiety, and impaired daily functioning.  She has been prescribed medications.  Her substantial fears about separation from her daughter causes her to spend all day in-doors with her child, which has been described as unhealthy by their doctor.
  • The applicant’s father was laid off from his work, causing him and his wife to lose their health insurance coverage.
  • The applicant’s mother was forced to sell the family restaurant, largely because it was not possible to continue operating it without the applicant’s help .
  • The applicant’s wife spends 10-12 hours a day running a business owned by the applicant.  This business is suffering due to the applicant’s absence from the United States.  It is the sole source of the applicant’s wife income, and she has been forced to move in with her in-laws because she doesn’t have money to afford her own place.
  • The applicant helped his mother and father make payments on their home mortgage.  With the sale of the applicant’s mother’s restaurant and his own business suffering in his absence, there is not enough income to meet the monthly mortgage payments.  As a result, his mother, father, wife and child are at risk of losing their home.
  • The applicant’s father sold everything when he left Albania and has nothing left there.  He is also a lawful permanent resident and would lose his LPR status if he re-locates to Albania to be with the applicant.
  • The applicant’s wife’s parents both live in the United States.
  • The Dept. of State states that healthcare in Albania falls short of U.S. standards, and acknowledges that emergency and major medical care requiring surgery outside Tirana (the capital of Albania) is particularly problematic.
  • When the applicant’s wife and their infant daughter visited Albania, the daughter fell sick with bronchial pneumonia.
  • The Dept. of State states that organized crime, street crime, and violence in Albania are a significant problem and increased in recent years.
  • There are limited work opportunities for women in Albania.  Additionally, the applicant’s parent’s old age and declining health makes their employment prospect also limited.
  • The applicant has no criminal record and has resided in the United States for over 12 years.
  • The applicant has worked, paid his taxes, and and creating jobs for U.S. workers during his stay inside the United States.
  • The applicant has resided for over 2 1/2 years abroad after being deported from the U.S.

I-212 Waiver Approved

I-212 Waiver

We received approval of a Form I-212, Applicant for Permission to Reapply for Admission into the United States After Deportation or Removal.  The I-212 waiver was required due to our client having been removed from the U.S. upon arrival at a U.S. airport.  She had visited the U.S. several times in the past but unknowingly overstayed her authorized period of stay during her previous visit.  As a result, her visa was revoked and she was removed from the country when she applied for admission at the port of entry.

Our client returned to her home country of Romania, where she met, fell in love with, and married a U.S. citizen who was on long-term assignment for his company there.  The U.S. citizen filed for his wife’s I-130 Petition for Alien Relative, which was approved and sent to the U.S. embassy for consular processing.  When she arrived at the interview, she was informed by the consular officer of her need to file the I-212 waiver.  Our office was subsequently contacted to prepare and file the I-212 on her behalf.

Section 212(a)(i)(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.

In support of her I-212 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to adjudicate an I-212 waiver application.  The legal standards discussed included those set forth by the Board of Immigration Appeals in its precedent decision, Matter of Tin.  “Extreme hardship” to the U.S. citizen spouse was also discussed in-depth  as a favorable factor in this matter.  Some of the factors elaborated upon in this brief were:

  • Basis for the prior removal;
  • Recency of the removal;
  • Moral character of the applicant;
  • Respect for law and order;
  • Evidence of reformation and rehabilitation;
  • Family responsibilities;
  • Hardship involved to the applicant and others;
  • The need for the applicant’s services in the U.S.; and
  • Whether the applicant is subject to any other grounds of inadmissibility.

The I-212 waiver package also included supporting exhibits that provided proof of the statements made in the legal brief.

After consideration of the I-212 waiver we submitted to the USCIS Field Office with jurisdiction over her removal, the Field Office Director approved our I-212 waiver application, granting her permission to reapply for admission into the United States.  The approved I-212 waiver was sent to the U.S. embassy in Bucharest, which issued her the immigrant visa to enter the U.S. lawfully as a permanent resident.