I-601 Extreme Hardship Waiver Approved by AAO for Chinese National

I-601 Extreme Hardship Waiver Approved by AAO for Chinese National

I-601 Waiver News

The applicant in this case is a native and citizen of China who was found to be inadmissible to the United States under 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, other documentation, or admission into the United States by fraud or willful misrepresentation.

Specifically, the applicant attempted to procure entry to the United States in 1992 by presenting a photo-substituted Taiwanese passport.

The applicant sought a waiver of inadmissibility pursuant to section 212(i) of the Act, 8 U.S.C. §.1182(i), in order to reside in the United States with her U.S. citizen spouse and children, born in 1997 and 1999 .  The AAO sustained the applicant’s appeal and granted the I-601 extreme hardship waiver.

The take-away from this case is that whenever a Chinese applicant is involved, you should ALWAYS cite China’s one child policy and the repercussions likely to occur to the applicant and U.S. citizen or lawful permanent resident relative.  Governmental policies in other countries that are  likely to cause extreme hardship to the family upon relocation should also be described and documented.

Additionally, the psychosocial evaluation should ideally describe the integral, essential, vital, and leading role of the applicant in the life of the family (and the disruption that will occur without the applicant’s presence in the U.S.)  This dynamic should be corroborated by affidavits from family members, extended relatives, friends, and others with direct knowledge of the situation.

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.

(ii) Waiver authorized. – For provision authorizing waiver of clause (i), see subsection (i).

Section 212(i) of the Act provides:

(1) 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.

The favorable factors in this case are as follow:

  • There is  a close resemblance in this case to the fact pattern found in the oft-cited Matter of Kao and Lin, 23 I&N Dec. 25 (BIA 2001).  In Matter of Kao and Lin, the Board of Immigration Appeals found that a fifteen-year old child who lived her entire life in the U.S., who was completely integrated into the American lifestyle, and who was not fluent in Chinese, would suffer extreme hardship if she relocated to Taiwan.
  • In this case, the applicant’s children are currently in their teens and fully integrated into the United States lifestyle and educational system.  To uproot them at this stage in their education and social development would constitute extreme hardship to them, and by extension, to the applicant’s U.S. citizen spouse.
  • The U.S. citizen spouse has been residing in the United States for over 10 years.  He would have to leave his gainful employment, family members, and his community.  His sister and uncle reside in the U.S.
  • The U.S. citizen spouse and the applicant have been together since 1995 and they are an integral part of each other’s life.
  • The U.S. citizen spouse works  long hours as a Japanese cook.  However, Japanese food is not popular in China. Alternatively, he states that in order to get a job as a cook in China, he would have to get a license.  To become a manager in a restaurant in China, he would need a college degree.
  • He needs his wife by his side to take care of him and his daughters.  He cannot raise his daughters on his own since his wife has been the primary caregiver.
  • The U.S. citizen spouse would suffer a financial shortfall without his wife’s presence in the U.S. and be unable to afford long-distance phone calls and trips to China to visit his wife.
  • Affidavits from the U.S. citizen husband, applicant, and daughters corroborate the above statements and outline the role the mother plays in their daily lives and family dynamics.
  • A psychosocial diagnostic evaluation details that the U.S. citizen spouse is suffering from Adjustment with Mixed Anxiety and Depressed Mood precipitated by his wife’s immigration situation.  The evaluation further states that the applicant is one of the chief designers and implementers of the family life, is essential to the close-knit family unit and vital to the lives of her husband and children.
  • Medical documentation states the U.S. citizen spouse has Hepatitis B and needs continued treatment
  • Financial documentation establishes the role the applicant plays in the finances of the household, earning approximately $180 per week
  • Because the U.S. citizen and his wife have two daughters, the applicant would be sterilized in China due to the one child policy.  An additional fee would be imposed for their two daughters to attend school in China.
  • Affidavits from extended family corroborate the hardships the U.S. citizen husband would face without his wife’s presence in the U.S., or alternatively, if he were to relocate to China with the children.
  • The applicant has significant community ties to the U.S.; has been gainfully employed in the U.S.; has paid taxes; and more than twenty years have passed since she sought to procure entry to the U.S. using fraud or misrepresentation