I-601 Waiver Approved for Vietnamese Daughter of U.S. Citizen Father

I-601 "Extreme Hardship" Waiver for Fraud/Misrepresentation Approved for Vietnamese Daughter

We obtained approval of the I-601 Application of Waiver of Grounds of Inadmissibility for the Vietnamese daughter of a U.S. citizen father who was subject to a life-time bar for fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

INA Section 212(a)(6)(C)(i) states:

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.

Our client was previously married to a U.S. citizen husband for 6 years. She tried to immigrate to the United States through marriage to her U.S. citizen spouse but was denied for an immigrant visa because the consular officer at the time believed their marriage to be fraudulent. She was subsequently denied again for a non-immigrant visa based on the prior finding of fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

I was contacted by the client and her family to assist them in preparing and obtaining approval of the I-601 waiver of the finding of inadmissibility by the US consulate in Ho Chi Minh City, Vietnam. The I-130 Petition for Alien Relative had been filed by our client’s U.S. citizen father; approved by the USCIS; National Visa Center processing completed; and the submission and approval of this waiver was the only way by which the applicant would ever be allowed to enter the U.S. as an immigrant (i.e. as a U.S. lawful permanent resident).

Note: It is important to keep in mind that under current guidelines for the submission of I-601 or combined I-601 and I-212 waiver applications, immigrant visa applicants must first be denied for an immigrant visa by the consular officer at the U.S. embassy or consulate abroad, before they are eligible to submit their I-601 or combined I-601 and I-212 waiver packages.

An I-601 Application for Waiver of Grounds of Inadmissibility requires a showing that the applicant’s U.S. citizen spouse or parent would suffer “extreme hardship” if the applicant is refused admission into the United States.

”Extreme hardship” 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.

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 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.” 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.

We prepared a detailed and comprehensive I-601 waiver application including a 30 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship,” together with a collection of 18 different exhibits to prove the essential elements of our case.

The “extreme hardship” factors presented as part of our case included included the day-to-day care that the U.S. citizen father requires due to suffering from Renal Failure, Hypertension, Prediabetes, Latent Tuberculosis, Hemorrhoids, and Back Pain. These conditions have left the U.S. citizen father unable to drive; greatly limited in mobility; and in persistent pain throughout the day.

Although the U.S. citizen father has his U.S. citizen wife as well as his two younger children who help him as best they can, we demonstrated that his elderly wife is greatly limited in her ability to provide the care that her husband needs due to her need to keep employed as well as her own infirmities. Additionally, we also showed that his younger daughter (who lives with her father and mother) also works full-time to financially support the family; her income is critical to meet the needs of this financially struggling family; and she simply does not have the time to devote to the constant care needed by her ailing father.

We went in-depth into this family’s history, showing the devastating toll having to leave the eldest daughter in Vietnam (while the rest of the family immigrated to the United States) has had on the U.S. citizen father, including a diagnosis of Generalized Anxiety Disorder and Persistent Depressive Disorder, made by a clinical psychologist who specializes in performing psycho-social evaluations for immigrant waiver cases.

Just as importantly, we demonstrated how the existing medical, psychological, emotional, and financial hardships being suffered by the U.S. citizen father are presently worsening due to the continued absence of the eldest daughter from the U.S. Without the medical, emotional, and financial support that the eldest daughter could provide from within the United States, the condition of the U.S. citizen father would continue to deteriorate, affecting the welfare of three other U.S. citizen family members who all desperately need the presence and support of the waiver applicant in their lives.

We also showed the potentially life-threatening impact that re-location to Vietnam would have on the U.S. citizen father given his compromised physical and psychological state, including the limited medical and psychological facilities that would be be available to him in Vietnam; his advanced age and inability to work to support himself in Vietnam; and the psychological toll of leaving his wife and two children in the U.S. would have on him, among other country-specific conditions.

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this family can now finally be united once again after a lengthy separation.