I-601 Extreme Hardship Waiver Approved by AAO for 10 Year Unlawful Presence Bar

I-601 Extreme Hardship Waiver Approved by AAO for 10 Year Unlawful Presence Bar

I-601 Waiver Legal News

The applicant is a native and citizen of Israel who was found to be inadmissible to the United States pursuant to INA Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(9)(B)(i)(II), for having been unlawfully present in the United States for more than one year and seeking readmission within ten years of his last departure from the United States.  The applicant entered the United States with a B-2 visitor’s visa.  He departed from the United States on a validly approved advance parole, received after filing for adjustment of status.  The applicant is the spouse of a U.S. citizen and seeks a waiver of inadmissibility to reside in the United States.

INA Section 212(a)(9)(B) of the Act provides, in pertinent part:

(B) Aliens Unlawfully Present.-

(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.

In Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565-66 (BIA 1999), the 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’s 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 BIA added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not an exclusive list.  Relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.  In each case, the trier of fact 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. Matter of 0-J-0-. 21 I&N Dec. 381, 383 (BIA 1996). (Citations omitted).

An analysis under Matter of Cervantes-Gonzalez is appropriate.  The AAO notes that extreme hardship to a qualifying relative must be established in the event that he or she accompanies the applicant and in the event that he or she remains in the United States, as a qualifying relative is not required to reside outside of the United States based on t he denial of the applicant’s waiver request.

The factors cited by the AAO as persuasive in approval of this I-601 waiver application are the following:

  • The applicant’s spouse has a history of severe problems with alcohol, has sought treatment for her illness, and attends Alcoholics Anonymous.
  • The applicant’t spouse does not have custody of her son (who resides with his father).
  • The applicant’s spouse recovered from her alcohol addiction through the help of the applicant, and after their marriage, began to see her son more often.  Her son has subsequently developed a close bond with the applicant.
  • The applicant’s spouse fears relapse into alcoholic abuse due to the stress of possible separation from her husband or relocation to Israel.
  • The applicant’s spouse has suffered from emotional instability since adolescence, has been admitted to hospital intensive care in the past, and her mother confirms that the applicant’s spouse is suffering emotionally due to possible separation from her husband.
  • The applicant’s spouse has never lived outside the United States, is not Jewish, does not speak Hebrew or any other foreign language, and all of her friends and relatives live in the United States.
  • The applicant’s spouse does not earn enough income to support a decent life for herself or allow her to help her son
  • A psychological evaluation of the applicant’s spouse confirms that she relies on the applicant for her emotional stability as she has been married three times before, with each marriage only lasting less than a year.
  • The psychological evaluation confirms that the applicant’s spouse fears she may drop back into her old drinking habits without her husband’s day-to-day support.
  • The psychological evaluation states that the applicant and his spouse are in a committed and complementary relationship.
  • The psychological evaluation finds that upon separation, the applicant’s spouse would face an emotional and medical crisis, as she has begun to adjust to being a responsible and functional spouse and to trust a male figure for the first time in her life.
  • The psychological evaluation states that substance abuse disorders are usually accompanied by a mood disorder which is either concomitant or the primary cause of the substance abuse.
  • Country condition information from the U.S. Department of State state that Israel has been experiencing violence and instability.

The key takeaway from this case is that the qualifying relative’s socio-economic, emotional, and psychological history should always be mentioned if it makes him or her particularly vulnerable to the extreme hardships brought upon by possible separation or relocation.

In this case, the U.S. citizen spouse has a history of emotional instability including alcoholism, and estrangement from her son.  She was hospitalized in the past, married three times before, and her psychological evaluation confirms that she has not been able to trust a male figure in her life until she met and married the applicant.  Only after her marriage to the applicant did her life improve, allowing her to recover from alcoholic abuse, manage her emotional instability, and begin a renewed relationship with her son.

Whenever possible, it is important to work with a psychologist or psychiatrist who has a history of treating you so that the evaluation carries more credibility in the eyes of the USCIS.  Psychological evaluations done solely for the purpose of the I-601 waiver can be discounted as less than credible by the USCIS.

However, a well-researched and properly drafted psychological evaluation, even one conducted primarily to support a I-601 waiver application, can be very helpful in several ways:

1. It can detail and confirm the unique background of the qualifying relative’s life that makes him or her particularly vulnerable to extreme hardship.  For example, a history of alcoholism, drug abuse, mental disorders, spousal abuse, growing up in a single-family home or as an orphan, and so forth.

2. It can help summarize medical conditions of the qualifying relative that are often difficult to obtain from physicians who routinely refuse to write letters on behalf of their patients.

3. When properly drafted by a psychologist or psychiatrist with experience in extreme hardship waiver cases, they help reinforce the psychological and emotional consequences of possible separation or relocation in a powerful way.