Client Approval: I-601 Waiver Approved for K-1 Fiancee Subject to 10 Year Unlawful Presence Bar

Client Approval: I-601 Extreme Hardship Waiver Approved for K-1 Visa Fiancee from Thailand Subject to the 10 Year Unlawful Presence Bar.

Our office received approval of the K-1 fiancée visa and I-601 “unlawful presence” waiver for the Thai fiancée of a U.S. citizen.   She had previously entered the U.S. as a non-immigrant student but overstayed her authorized period of stay by over one year before voluntarily departing back to her home country.

She subsequently met and fell in love with her U.S. citizen fiancé and the couple contacted my office to obtain my legal assistance.

We first provided the couple with a comprehensive letter going over every detail of the K-1 fiancée visa process, including preparation and submission of the initial I-129F petition to the USCIS as well as consular processing at the US embassy abroad.

We also provided our clients with an abbreviated checklist of supporting documents (both mandatory and optional) to gather in support of the I-129F Petition for Alien Fiancée and return to our office.

We meticulously prepared every USCIS application form on behalf of our clients; assembled the petition; submitted it to the USCIS on their behalf; then provided our clients with further guidelines on preparing for the consular interview to maximize the probability of K-1 visa approval at the US embassy interview.

Once the K-1 fiancee visa petition was submitted to the USCIS, we began work on preparing the I-601 “Extreme Hardship” waiver to overcome the 10 year “presence” bar (under INA 212(a)(9)(B)(i)(II)) we knew the Thai fiancée is subject to.

We always work on waivers while the USCIS visa petition is pending so that no time is lost and the waiver can be submitted as soon as the applicant located abroad is eligible (typically after being deemed inadmissible at the U.S. consular interview).

INA Section 212(a)(9)(B)(v) provides that a waiver for INA Section 212(a)(9)(B)(i)(II) (10 year “unlawful presence bar”) is applicable solely where the applicant establishes extreme hardship to her U.S. citizen or lawfully resident spouse or parent.  A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

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

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

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

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

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

In support of our client’s I-601 waiver application, we prepared an extensive legal brief going over how the facts and circumstances of our clients’ situation met the legal standards used to define “extreme hardship.”  We conducted extensive research on the country conditions of Thailand to demonstrate the hardships the U.S. citizen fiancé would suffer if he were to re-locate to Thailand to be with his loved on.  The brief was accompanied by a comprehensive array of supporting exhibits that provided objective, credible proof of the statements made in the legal brief.

The positive factors in this case included:

  • The U.S. citizen fiancé suffers from Generalized Anxiety Disorder and Dysthymic Disorder and has suffered from these conditions for many years
  • The U.S. citizen fiancé’s family has an extensive history of mental illness
  • The U.S. citizen fiancé is the single parent of a U.S. citizen minor child who suffers from Post-Traumatic Stress Disorder
  • The U.S. citizen fiancé is the sole care-giver and provider for his elderly and disabled parents, who suffer from progressive and degenerative medical conditions that have compromised their mobility and ability to perform routine tasks
  • The U.S. citizen fiancé suffers from a serious physical ailment that requires surgery.  However, he cannot undergo surgery without his fiancée’s presence in the U.S. to help take care of his parents while he recovers from surgery.
  • The U.S. citizen fiancé’s work performance is already significantly impaired due to his psychiatric and medical conditions, causing absences from work and markedly poor performance.  Continued stress caused by separation from his loved one may force him to close down his business and lead to subsequent financial collapse.
  • The U.S. citizen fiancé’s son, who suffers from Post-Traumatic Stress Disorder, is negatively affected by his father’s long absence from home.  He also shares joint-custody over his son with his ex-wife, who will never allow their son to be re-located to another country.
  • The region of Thailand where the Thai fiancée resides is subject to an advisory warning by the U.S. embassy, due to historical violence and civil unrest.

As a result of the “unlawful presence” waiver prepared and submitted by our office, this I-601 waiver application was approved and the couple can now be married inside the United States and pursue a life together as a family.