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I-601A Provisional Waiver Denials Based on Prior Criminal Offense Being Re-Opened by USCIS

March 18, 2014 By Michael Cho Immigration Lawyer Leave a Comment

The USCIS will re-open on its own motion, all I-601A waiver applications that were denied prior to January 24, 2014, solely because of a prior criminal offense, in order to determine whether there is reason to believe the prior criminal offense might render the applicant inadmissible.

The full update from the USCIS is available below:

The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in the regulations and warrant a favorable exercise of discretion. The law provides that USCIS can deny an I-601A waiver application if USCIS has reason to believe that the individual is subject to another ground of inadmissibility, in addition to the unlawful presence ground that is the subject of the I-601A waiver application.

The public asked us: when the possible additional ground of inadmissibility is a prior criminal offense, does the existence of any prior criminal offense trigger the automatic denial of the I-601A waiver application, or must USCIS have reason to believe that the prior criminal offense would actually render the applicant inadmissible? There are some criminal offenses, such as certain petty offenses for example, that do not serve as a ground of inadmissibility under the governing statutes.

In response, USCIS has determined that it should not find a reason to believe that the prior criminal offense would render the applicant inadmissible and deny an I-601A waiver application based on a prior criminal offense if the criminal offense falls under the petty offense or youthful offender exceptions or is not considered a crime involving moral turpitude. This answer is reflected in USCIS’s January 24, 2014 field guidance.

Starting on March 18, 2014, USCIS will reopen, on its own motion, all I-601A waiver applications that were denied prior to January 24, 2014, solely because of a prior criminal offense, in order to determine whether there is reason to believe the prior criminal offense might render the applicant inadmissible. USCIS will re-adjudicate the cases where applicants have not been issued an immigrant visa, consistent with the new field guidance. USCIS will notify applicants (and their legal representatives) of this action within 60 days. Once the case has been reopened and reviewed, USCIS will continue to process the I-601A waiver application and either approve or deny it or request additional information from the applicant.

Temporary Protected Status (TPS), Advance Parole, and Adjustment of Status under Arrabally

February 9, 2014 By Michael Cho Immigration Lawyer Leave a Comment

Overview of Adjustment of Status

According to INA Section 245(a), the status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

the alien makes an application for such adjustment,
the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
an immigrant visa is immediately available to him at the time his application is filed.

Overview of the 3 and 10 Year Unlawful Presence Bars

INA Section 212(a)(9)(B)(i) is broken into two (2) sub-groups:

Section 212(a)(9)(B)(i)(I) of the Act (3-year bar). This provision renders inadmissible for three (3) years those aliens, who were unlawfully present for more than 180 days but less than one (1) year, and who departed from the United States voluntarily prior to the initiation of removal proceedings.
Section 212(a)(9)(B)(i)(II) of the Act (10-year bar). This provision renders inadmissible an alien, who was unlawfully present for one (1) year or more, and who seeks again admission within ten (10) years of the date of the alien’s departure or removal from the United States.

Section 212(a)(9)(B)(ii) of the Act defines “unlawful presence” for purposes of sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act to mean that an alien is deemed to be unlawfully present in the United States, if the alien is:

present after the expiration of the period of stay authorized by the Secretary of Homeland Security; or
present without being admitted or paroled.

Both the 3 and 10 year unlawful presence bars can be waived pursuant to section 212(a)(9)(B)(v) of the Act which states:

Waiver. – The [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 [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.

This waiver pursuant to 212(a)(9)(B)(v) is applied for through the I-601 “extreme hardship” waiver discussed extensively on this web site.

Triggering the Bar by Departing the United States and Matter of Arrabally

In the past, an alien who was not inspected and admitted or paroled into the United States was ineligible for adjustment of status (unless protected under INA Section 245(i)). Such a person, when petitioned for permanent residence by a U.S. citizen spouse for example, had to leave the U.S. and attend a consular interview at the U.S. embassy abroad in order to complete the immigrant visa process.

By leaving the U.S. after accruing more than 180 days or one (1) year of unlawful presence, the 3-year or 10-year bar to admission under section 212(a)(9)(B) of the Act was triggered. The I-601 waiver was subsequently required.

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the Board of Immigration Appeals held that an alien who leaves the United States temporarily pursuant to advance parole under section 212(d)(5)(A) of the Act does not make a departure from the United States within the meaning of section 212(a)(9)(B)(i)(II) of the Act.

Advance parole is an administrative practice derived from the general parole authority in INA § 212(d)(5), giving an individual who is in the United States advance authorization to enter the United States after temporary travel abroad. U.S. Citizenship and Immigration Services (USCIS) has the authority to grant advance parole and issue a Form I-512L, an advance parole authorization document. Form I-512L allows a Customs and Border Protection (CBP) or other immigration inspector at a U.S. port-of-entry to parole an individual into the United States. Advance parole does not guarantee subsequent parole into the United States. The inspecting immigration official may, in his or her discretion, deny parole at the port-of-entry.

In a series of AAO decisions citing Matter of Arrabally and Yerrabelly thereafter, applicants who entered without inspection and subsequently obtained Temporary Protected Status (TPS), were allowed to use advance parole obtained pursuant to section 212(d)(5)(A) to temporarily leave the U.S., re-enter the U.S., and pursue pending applications for adjustment of status. They were deemed to have NOT made a “departure” from the United States for purposes of section 212(a)(9)(B)(i)(II) of the Act.

In other words, the 3 and 10 year unlawful presence bars were not triggered. Accordingly, the applicants were not deemed inadmissible under section 212(a)(9)(B)(i)(I) and 212(a)(9)(B)(i)(II) of the Act. Additionally, they were deemed to have been paroled into the United States, and now eligible for adjustment of status under INA Section 245(a).

In these cases, the applicants were allowed to proceed with their adjustment of status applications in the United States based upon their marriage to a U.S. citizen spouse. Just as importantly, the I-601 extreme hardship waiver was deemed unnecessary since the 3 and 10 year unlawful presence bars were not triggered.

It should be noted that this “beneficial interpretation” using Matter of Arrabally and Yerrabelly would extend to any immediate relative of a U.S. citizen applying for adjustment of status (i.e. the spouse, child under 21, or parent of a U.S. citizen son or daughter over 21 years old).

In summary, this has been welcome news for those granted TPS since Matter of Arrabally and Yerrabelly was decided. Those who entered the U.S. without inspection and overstayed for 6 months or longer, subsequently obtained Temporary Protected Status (TPS), and are married U.S. citizens, have been able to obtain advance parole, leave the United States, and re-enter the U.S. to proceed with their adjustment of status to permanent residence without need for the I-601 extreme hardship waiver.

Other Inadmissibility Considerations

Prior to traveling abroad under advance parole, it is important to determine whether other grounds of inadmissibility may apply. Keep in mind that Matter of Arrabally and Yerrabelly discussed above benefits those who are only subject to the 3 or 10 year bar upon their departure from the United States. As such, the inspecting immigration officer may deny entry into the United States for those holding advance parole if the officer finds that any of the other inadmissibility grounds apply.

For example, an applicant who has already triggered the unlawful presence bars under INA Section 212(a)(9)(B) or the permanent bar under INA Section 212(a)(9)(C) (by previously leaving and re-entering without advance parole) may still be subject to these bars.

Future travel under advance parole will not cure previously incurred bars. Immigration-related fraud or misrepresentation and false claims to U.S. citizenship can also bar admission. Thus, prior to departing the United States, applicants with advance parole must consider all other inadmissibility grounds including criminal inadmissibility grounds identified at INA Section 212(a)(2).

Unexecuted deportation or removal order. If such an order exists, and if the applicant were to depart the United States on advance parole, he or she likely would be found to have executed the deportation/removal order and may not be able to re-enter the United States for a prescribed period of time.

To avoid this, an applicant with an unexecuted removal order can submit a motion to reopen removal proceedings with the Immigration Court or the BIA. Once removal proceedings are reopened, the removal order no longer exists. The applicant can then move to administratively close or terminate the reopened proceedings. If either termination of proceedings or administrative closure is granted, the applicant can travel on advance parole without risking the consequences of an executed removal order. I typically contact the relevant ICE Office of the Chief Council (OCC) to request that the parties jointly move to reopen and then administratively close or terminate the removal proceedings.

I-601 Waivers for Physical or Mental Disorders with Associated Harmful Behavior

January 28, 2014 By Michael Cho Immigration Lawyer Leave a Comment

The USCIS has issued updated guidance to its adjudicating officers on the health-related grounds of inadmissibility and their associated waivers. A common inadmissibility that I am contacted for involves INA 212(a)(2)(A)(iii), which deems an alien inadmissible if he/she is determined:

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others; or

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior;

The USCIS guidance referenced below is addressed to adjudicating officers.

Please keep in mind that waiver applicants should prepare and submit a comprehensive waiver application, that includes an up-to-date psychological evaluation; a statement from an approved U.S. facility or specialist agreeing to evaluate the applicant upon entry into the U.S. and agreeing to file a report with the CDC; evidence of medical insurance to pay for the costs of the mental disorder; among other supporting documents relevant to the case.

Physical or Mental Disorders with Associated Harmful Behavior

Applicants who have physical or mental disorders and harmful behavior associated with those disorders are inadmissible. The inadmissibility ground is divided into two subcategories:

Current physical or mental disorders, with associated harmful behavior.
Past physical or mental disorders, with associated harmful behavior that is likely to recur or lead to other harmful behavior.

There must be both a physical or mental disorder and harmful behavior to make an applicant inadmissible based on this ground. Neither harmful behavior nor a physical/mental disorder alone renders an applicant inadmissible on this ground. Harmful behavior is defined as behavior that may pose, or has posed, a threat to the property, safety, or welfare of the applicant or others.

[Read more…]

USCIS Issues Field Guidance on I-601A Provisional Waiver Applicants with Criminal Arrests or Convictions

January 24, 2014 By Michael Cho Immigration Lawyer Leave a Comment

On March 4, 2013, the USCIS began a new provisional unlawful presence waiver program for immediate relatives of U.S. citizens whose only ground of inadmissibility is unlawful presence in the United States under section 212(a)(9)(B)(i)(I) and (II) of the Immigration and Nationality Act (INA).

The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all I-601A Provisional Waiver eligibility requirements and warrant a favorable exercise of discretion.

There are several circumstances that may render an individual ineligible for a provisional unlawful presence waiver. For example, individuals with final orders of exclusion, deportation, or removal; individuals who are currently in removal proceedings that are not administratively closed at the time of filing; and individuals who have a pending application with USCIS for lawful permanent resident status are not eligible to apply for the provisional unlawful presence waiver. Individuals for whom there is a reason to believe that they may be subject to grounds of inadmissibility other than unlawful presence at the time of the immigrant visa interview with a Department of State (DOS) consular officer also are ineligible for the provisional unlawful presence waiver. See 8 CFR 212.7(e) (2013).

If a USCIS officer determines, based on the record, that there is a reason to believe that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of his or her immigrant visa interview with a DOS consular officer, USCIS will deny the request for a provisional unlawful presence waiver. See 8 CFR 212.7(e)(4)(i) (2013).

Since the commencement of the I-601A Provisional Waiver program, the USCIS denied I-601A waiver applications when the applicant had any criminal history. In these cases, if the record contained evidence that an applicant was charged with an offense or convicted of any crime (other than minor traffic citations such as parking violations, red light/stop sign violations, expired license or registration, or similar offenses), regardless of the sentence imposed or whether the offense is a Crime Involving Moral Turpitude (CIMT), USCIS denied the I-601A waiver application.

The USCIS has now issued guidance to its officers to review all evidence in the record, including any evidence submitted by the applicant or the attorney of record.

If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication, or (2) is not a Crime Involving Moral Turpitude under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense.

The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful presence waiver, including whether the applicant warrants a favorable exercise of discretion.

This news has been much-anticipated by potential waiver applicants who have certain convictions such as Driving Under the Influence (DUI) on their record. Assuming the applicant’s criminal conviction(s) does not trigger a ground of inadmissibility, or their criminal conviction falls under the “petty offense” or “youthful offender” exception, waiver applicants may now proceed with their I-601A Provisional Waiver applications.

Keep in mind that it is extremely important for applicants with criminal conviction(s) in their background to prepare and submit a memorandum, together with their I-601A waiver package, clearly describing why their criminal conviction(s) does not trigger a ground of inadmissibility; or why their criminal conviction falls under the “petty offense” or “youthful offender” exception of INA section 212(a)(2)(A)(ii).

How to Prepare a Powerful Psychological Evaluation to Prove Extreme Hardship for the I-601 and I-601A Waiver

January 13, 2014 By Michael Cho Immigration Lawyer

Extreme Hardship Defined

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

(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 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.

Section 212(a)(6)(C)(i) of the Act provides, in pertinent part, that:

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.

Section 212(i) of the Act provides, in pertinent part:

(I) 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.

(**Please note that the I-601a Provisional Waiver requires a showing of extreme hardship to the U.S. citizen spouse or parent. In other words, lawful permanent residents are not allowed to be the qualifying relative for I-601a Provisional Waivers).

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 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 lge, 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 0-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of lge, 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 (BI2001) (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).

The Psychological Evaluation

The psychological evaluation can thus be a powerful piece of evidence to demonstrate and prove the extreme hardship that the qualifying relative would suffer if he or she is separated from the applicant; or alternatively, if the qualifying relative leaves the U.S. and re-locates abroad in order to be with the applicant. I will first go over an I-601 waiver application that was approved by the AAO to examine the characteristics of a successful and persuasive psychological evaluation.

The applicant in this case is a native and citizen of Mexico who was found to be inadmissible to the United States pursuant to section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), for fraud or willful misrepresentation of a material fact in order to procure an immigration benefit. The applicant is married to a U.S. citizen and seeks a waiver of inadmissibility pursuant to Section 212(i) of the Act, 8 U.S.C. § 1182(i), in order to reside with her husband in the United States.

The qualifying relative (the U.S. citizen husband) was born in Texas. He is 58 years old, and has 10 siblings, 4 children from previous relationships, and 3 grandchildren who all reside in the U.S. He has a 88 year old elderly father. He fears that he would not have a job if he moves to Mexico and consequently would not be able to afford visits to see his father. He encountered a shoot-out between drug cartels and the Mexican military during a visit to see his mother-in-law during a visit to Ciudad Juarez, Mexico. He and his nephew were stopped by armed men with machine guns who threatened their lives during a visit to see his mother-in-law in the state of Sinaloa, Mexico. A letter from his sister-in-law confirms the violence in Los Mochis Mexico, and the general state of disrepair of the house there that the applicant and her U.S. citizen husband would have to live in.

The psychological report submitted as part of the I-601 waiver application expressly states the following:

The U.S. citizen husband was the middle child of eleven children who grew up in a home with a physically and verbally abusive alcoholic father.
The U.S. citizen husband watched and heard his mother being beaten and felt powerless to stop his father.
The U.S. citizen husband is very close to his siblings since they supported each other while growing up in order to survive.
The U.S. citizen husband grew up in Idaho where he felt a sense of discrimination and prejudice during his school years.
When the U.S. citizen husband was 23 years old, he was called back home from the U.S. Army because his mother had died, his father had left, and there was no one to care for his younger siblings.
The U.S. citizen husband’s first marriage was brief and they had a son together. His ex-wife disappeared with his son and he was unable to find him until his son was 12 years old and complained that his mother abused him. His son subsequently lived with him for two years.
The U.S. citizen husband’s physician prescribed him Prozac for his depression which dates back to his first marriage.
The U.S. citizen husband re-married and had two children with his second wife. This marriage lasted 28 years.
When the U.S. citizen husband met his current wife (the I-601 waiver applicant), he felt there was new meaning in life.
He fears he will go into serious depression if she moves back to Mexico without him, and fears that if he moved to Mexico with her, he would deeply miss his children and siblings.
The U.S. citizen husband has a history of depression and anxiety.
The U.S. citizen husband has difficulty sleeping, feels anxious, and had had thoughts of suicide.
The U.S. citizen husband has been diagnosed with Dysthymia and Adjustment Disorder with Depression and Anxiety.
If the wife is not allowed to remain in the U.S., the U.S. citizen husband would experience serious psychological consequences and it his highly likely his depression would worsen to the point he would consider suicide.

In my experience, effective psychological evaluations should always include a detailed personal history of the person being examined (along with the waiver applicant and family members in general). It should concisely and accurately detail the unique circumstances of the patient that makes him or her particularly vulnerable to hardship.

The psychological evaluation in support of a I-601 or I-601a waiver should summarize the psychological and medical history of the patient, including the length of time the patient has suffered from psychological disorders and medical illnesses; any treatments received including surgery; and the medications the patient has been prescribed. This is particularly important because the USCIS can discount the credibility of psychological diagnoses prepared solely to support the I-601 or I-601A waiver application. A discussion of a history of previously diagnosed psychological disorder(s) will go a long ways towards establishing credibility.

The psychological evaluation should describe the emotional impact of both separation and re-location. In other words, it must discuss the psychological and emotional impact on the qualifying relative if he or she becomes separated from the applicant due to inadmissibility; as well as the psychological and emotional impact on the qualifying relative if he or she re-locates abroad in order to be with the applicant.

Since mental and physical well-being have been found to be closely related, the psychological report can also emphasize the physical consequences of patient’s current or future psychological state. For example, if the patient suffers from coronary disease, then an aggravation of his or her psychological disorders could contribute to a fatal heart attack.

The psychological evaluation should state the methodology used to diagnose the patient. It should specify all of the symptoms shown by the patient that led to a particular diagnosis. If applicable, if should expressly state that separation from the applicant (and re-location abroad to be with the applicant) would make the psychological disorders worsen. It should also state what the consequences will be for the patient if his or her psychological disorders worsen, including the possibilities of decompensation or suicide.

A well-written psychological evaluation should have a final section that summarizes the conclusions of the psychologist or psychiatrist. It should emphasize all of the hardships that the patient is currently suffering from, as well as those that he will suffer (or that will grow worse) should the applicant not be admitted to the United States.

It is therefore essential that the psychological evaluation be prepared by a professional who has experience with the unique requirements of the extreme hardship standard used in I-601 and I-601a waiver applications. If your chosen psychologist or psychiatrist does not have such experience, I suggest providing a link to this article and making sure they understand the importance of a well-written and detailed psychological report.

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

January 1, 2014 By Michael Cho Immigration Lawyer Leave a Comment

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.

AAO Approves I-601 Waiver for 10 Year Unlawful Presence Bar

December 27, 2013 By Michael Cho Immigration Lawyer Leave a Comment

I-601 Waiver Legal News

The applicant is a native and citizen of Pakistan who was found to be inadmissible to the United States pursuant to section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (the Act), for having been unlawfully present in the United States for more than one year and again seeking admission within ten years of his last departure from the United States. The applicant is the spouse of a United States citizen. He seeks a waiver of inadmissibility to reside in the United States with his family.

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-

Section 212(a)(9)(B)(v) of the Act provides for a waiver of section 212(a)(9)(B)(i) inadmissibility as follows:

The Attorney General [now Secretary of Homeland Security] 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 … 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.

The AAO states that 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 deportation, 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. at 631-32; Matter of Ige, 20 I&N Dec. at 883; 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, 81 3 (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 0-J-0-, 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 AAO specifically states that 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., In re 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).

Regardless of the type of family relationship involved, the hardship resulting from family separation is determined based on the actual impact of separation on an applicant, and all hardships must be considered in determining whether the combination of hardships takes the case beyond the consequences ordinarily associated with removal or inadmissibility. Matter of 0-J-0-, 21 I&N Dec. at 3 83. Nevertheless, although the AAO requires an applicant to show that a qualifying relative would experience extreme hardship both in the event of relocation and in the event of separation, in analyzing the latter scenario, the AAO gives considerable, if not predominant, weight to the hardship of separation itself, particularly in cases involving the separation of spouses from one another and/or minor children from a parent. Salcido-Salcido, 13 8 F.3d at 1293.

What this means for the I-601 or I-601A waiver applicant is that every hardship to the qualifying relative that results from the separation and relocation should be listed, described, and most importantly, described in detail as to its unique circumstances. For example, while a U.S. citizen spouse re-locating to Mexico may not be considered an “extreme hardship” in and of itself; showing that the U.S. citizens spouse would face dangerous conditions in the specific region of Mexico where she will reside, cannot re-locate her child abroad due to an existing child custody agreement, and suffers from a history of psychological depression, may demonstrate the extreme nature of the hardship.

The factors in this case cited by the AAO in finding extreme hardship and approval of the I-601 waiver are:

Psychological evaluation, letters from medical professionals and an affidavit from the qualifying spouse confirming the severity of her depression due to the applicant’s absence.
The psychological evaluation explains that the qualifying spouse has had a history of psychological issues, such as depression, which began prior to her separation from the applicant. If the applicant is unable to return to the United States due to his inadmissibility, the psychologist finds that the qualifying spouse may “require hospitalization in order to protect her from acting on her suicidal ideation.”
Medical issues of the qualifying relative including chronic hyperthyroidism and sinus allergies.
Financial hardship being suffered by the qualifying relative as shown by her tax returns, banking documentation, letter from the qualifying spouse’s employer, and lease for the qualifying spouse’s residence
Qualifying spouse’s affidavit further detailing her financial struggles, and indicating that she and her daughters “live in a very small one bedroom apartment where [they] share the same bed” and that she “can barely make ends meet and every single day is a great financial and emotional struggle.” The qualifying spouse explains her struggles as a single parent in raising two young children.
The psychological evaluation also notes that the qualifying spouse, who lost her own father as a young child, is also suffering emotional issues because she does not want her own children to be raised with only one parent.
Country conditions showing Pakistan as “extremely unstable, and dangerous, particularly for Americans.”
Qualifying spouse’s affidavit stating that the applicant is unemployed in Pakistan and unable to work due to a disability caused by Polio. Therefore, if the qualifying spouse were to relocate to Pakistan and the applicant is still unemployed, she may face financial difficulty and other hardships as a result.

The specific supporting documentation provided in this case includes:

Affidavits from the qualifying spouse and the applicant
Naturalization certificates for family members
Letters from medical professionals
Psychological evaluation
Tax returns, some banking documentation, a pay stub and a letter from the applicant’s employer in Canada
Letter from the qualifying spouse’s employer
Lease for the qualifying spouse’s residence
Country condition materials.

The key points to take away from this case are that psychological evaluations are much more effective when conducted by a medical professional who has been treating the patient for a long period of time. When a psychological evaluation is conducted solely for purposes of the I-601 waiver, the evaluation should state, if at all possible, the long history of the psychological disorder(s) suffered by the qualifying relative.

Additionally, disabilities of the applicant, in so far as they affect the qualifying relative, should also be noted. In this case, the applicant had a disability due to polio which affects his ability to obtain employment in Pakistan (thereby causing financial hardship to the qualifying relative should she re-locate to Pakistan).

Letters from the qualifying relative’s employer are also effective if they support financial hardship. For example, the employer stating that the qualifying relative’s job performance has suffered and may lead to termination due to the emotional impact of the immigration-caused separation, would support the case for both financial and psychological hardships.

It should also be noted that extreme hardship is a requirement for eligibility, but once established it is but one favorable discretionary factor to be considered. Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). For waivers of inadmissibility, the burden is on the applicant to establish that a grant of a waiver of inadmissibility is warranted in the exercise of discretion. Id. at 299. The adverse factors evidencing an alien’s undesirability as a permanent resident must be balanced with the social and humane considerations presented on his behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of this country. Id. at 300.

In Matter of Mendez-Moralez, in evaluating whether section 212(h)(1)(B) relief is warranted in the exercise of discretion, the BIA stated that: The factors adverse to the applicant include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record and, if so, its nature, recency and seriousness, and the presence of other evidence indicative of an alien’s bad character or undesirability as a permanent resident of this country . . . . The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where the alien began his residency at a young age), evidence of hardship to the alien and his
family if he is excluded and deported, service in this country’s Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value and service to the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien’s good character (e.g., affidavits from family, friends, and responsible community representatives) . . . .

The BIA states that upon review of the record as a whole, a balancing of the equities and adverse matters must be made to determine whether discretion should be favorably exercised. The equities that the applicant must bring forward to establish that she merits a favorable exercise of administrative discretion will depend in each case on the nature and circumstances of the ground of exclusion sought to be waived and on the presence of any additional adverse matters, and as the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence. Id. at 301.

The positive factors in this case were found to outweigh the adverse factors and discretion was exercised in favor of the applicant.

I-601 Waiver Approved by AAO for Russian Inadmissible Due to Fraud

December 7, 2013 By Michael Cho Immigration Lawyer Leave a Comment

I-601 Legal News

The applicant is a citizen of Russia who was found to be inadmissible to the United States under INA Section 212(a)(6)(C)(i) for having procured a visa or admission to the United States through fraud or misrepresentation of a material fact. The applicant resided in the United States from May 5, 2000, when he entered as a visitor for business, to March 2001, when he returned to Russia.

The applicant was found to be inadmissible for having procured a visa through a visa fraud ring by making false statements that he owned a company and was traveling to the U.S. for a trade show. He was arrested and charged with fraud and misuse or forgery of a visa on September 14, 2000, but the charges were dismissed by the U.S. District Court after the applicant cooperated with authorities in the prosecution of the fraud ring leaders.

The applicant is married to a U.S. citizen and is the beneficiary of an approved Petition for Alien Relative. The applicant seeks a waiver of inadmissibility pursuant to INA Section 212(i), in order to return to the United States and reside with his wife.

INA Section 212(a)(6)(C) 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.

INA Section 212(i) provides:

(1) The [Secretary] may, in the discretion of the [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 [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 first important point to keep in mind is that a waiver of inadmissibility under INA Section 212(i) is dependent upon showing that the bar to admission imposes extreme hardship on the qualifying relative (which includes the U.S. citizen or lawful permanent resident spouse or parent of the applicant). Hardship to the applicant or his children can be considered only insofar as it results in hardship to a qualifying relative. See Matter of Mendez-Moralez 21 I&N Dec. 296,301 (BIA 1996).

The second important point to keep in mind when preparing the I-601 waiver is that the applicant must establish extreme hardship to his or her qualifying relative(s) under two possible scenarios: the extreme hardships endured by the qualifying relative due to separation if the applicant remains abroad; and the extreme hardships endured by the qualifying relative due to re-location, if he or she moves abroad to be with the applicant.

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. 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.

Although 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-0-, 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.”

Additionally, although the AAO acknowledged that the actual hardship of each hardship factor varies with the unique circumstances of each case, it gives considerable, if not predominant, weight to the hardship of separation itself, particularly in cases involving the separation of spouses from one another and/or minor children from a parent. Salcido-Salcido, 138 F.3d at 1293.

The favorable factors that led to approval of this I-601 waiver are the following:

The applicant’s wife is a forty year-old native of Russia and citizen of the United States. She has lived apart from her husband and older daughter for over six years. Due to the economic situation in Russia, they decided that she would remain in the U.S. and support the family and the applicant would keep the children with him because she must work long hours as a nurse in order to support the family.
The U.S. citizen wife has visited Russia more than thirty times in the past six years and further states that she would have no choice but to move back to Russia if her husband’s I-601 waiver was denied
Affidavits from co-workers state that the U.S. citizen wife travels to Russia very frequently, misses her family badly, and gets tears in her eyes whenever she talks about her husband and children
The U.S. citizen wife works 24 hours of overtime per week in addition to her three 12-hour shifts as an operating room nurse in order to pay for her travels to Russia. She usually works immediately the next day after returning from Russia.
The U.S. citizen wife feels sick for 10 days after returning from her trips to Russia and states she cannot bear this situation for much longer.
The U.S. citizen wife is experiencing financial hardship due to the cost of frequent travels to Russia that cost $850 to $1350 per trip
The U.S. citizen wife has resided in the U.S. since 1999 and is regarded by coworkers as dedicated and responsible and serves as a role model for new staff.
She purchased a house in 2006 where she intended to move in with her family. If she left the U.S., she would be forced to sell the house at a $100,000 loss because the housing market has crashed. She has no way to pay for the short-fall. Low wages in Russia would mean she would never be able to pay back her debt.
The U.S. citizen wife has a mother who also lives in New York and works as a nurse. She would miss her mother terribly if she re-locates back to Russia.

Finally, in Matter of Mendez-Moralez I&N Dec. 296 (BIA1996), the BIA held that establishing extreme hardship and eligibility for a waiver does not create an entitlement to that relief, and that extreme hardship, once established, is but one favorable discretionary factor to be considered. In discretionary matters, the alien bears the burden of proving eligibility in terms of equities in the United States which are not outweighed by adverse factors. See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA1957).

In evaluating whether section 212(i) relief is warranted in the exercise of discretion, the factors adverse to the alien include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record, and if so, its nature and seriousness, and the presence of other evidence indicative of the alien’s bad character or undesirability as a permanent resident of this country.

The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where alien began residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this country’s Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value or service in the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien’s good character (e.g., affidavits from family, friends and responsible community representatives). See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA1996). The AAO must then “balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented on the alien’s behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. ”

Discretion was exercised in favor of the applicant due to the factors discussed above and this I-601 waiver case was approved by the AAO.

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