I-601 Waiver Approved by AAO After Motion to Reopen and Reconsider Granted

I-601 Waiver Approved by AAO Decision to Withdraw Previous Decision

I-601 Waiver Legal News

In an unusual decision, the AAO granted a motion to reopen and reconsider a prior AAO decision denying the I-601 waiver application filed by an applicant from Bangladesh.  It subsequently found sufficient extreme hardship and that a favorable exercise of discretion was warranted based on a balancing of the positive and negative of the case.

This case involves an applicant from Bangladesh who was found inadmissible to the United States pursuant to Section 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for having attempted to procure a visa to the United States through willful misrepresentation.  The applicant’s lawful permanent resident mother filed the Petition for Immediate Relative (Form I-130) using a false birth date for her son in order to qualify him for child immigration benefits.  The applicant did not correct this false birth date on his Application for Immigrant Visa and Alien Registration (DS-230)  and during the consular interview.  As a result, the applicant was deemed inadmissible under INA Section 212(a)(6)(C)(i) of the , and required a waiver under section 212(i) of the INA.

The Field Office Director, Bangkok, Thailand, concluded the applicant failed to establish extreme hardship would be imposed upon a qualifying relative, and denied his Application for Waiver of Grounds of Inadmissibility (Form 1-601).  The AAO dismissed the applicant’s appeal and affirmed the Field Office Director’s decision.

According to 8 C.F.R. § 103.5(a)(2), a motion to reopen must state the new facts to be proved and be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2).  A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy.  A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3).  The motion to reopen and reconsider was granted in this matter based on arguments presented by counsel and new evidence submitted.

The key points to take away from this this case are the following:

  • The role of non-qualifying relatives: The applicant’s brother is a non-qualifying relative for the purposes of the I-601 waiver.  However, he is the sole bread-winner for this family and supports the LPR mother, who is the qualifying relative; his own wife and children; and sends remittances to the applicant in Bangladesh.  The applicant’s brother works long hours as a street vendor, whose income has dropped substantially since 2009 and earns below  the poverty guidelines set forth by the DHS.  Thus, the financial hardship suffered by the mother (who is supported by the brother) would be alleviated if the applicant is admitted and can contribute to the family income.  Alternatively, the applicant can stay home and take care of his mother and brother’s children, while his brother’s wife obtains a job.
  • Proven medical hardship that worsens over time: The applicant’s mother appears to suffer from various physical and psychological ailments, including being diagnosed with Major Depressive Disorder.  In support of these contentions, two letters from physicians were submitted stating that the mother is “persistently experiencing physical and emotional symptoms, which dramatically restrict her ability to function independently, and make her dependent on others”; and that the applicant’s mother’s medication conditions “are currently in stable condition, however she needs psychiatric follow-up for current non-urgent mental status.”  These conditions appear to shown as worsening over time, thus validating the assertions made in the initial I-601 waiver application.

Additional favorable factors in finding extreme hardship includes the elderly age of the mother, her need to maintain lawful permanent residence status, her length of residence and strong ties to the U.S., her ongoing medical treatments, and the social conditions in Bangladesh,

Based on a finding of extreme hardship and that the favorable factors outweighed the negative factors in this case, the I-601 waiver was approved.