Smart Immigration Lawyer

  • About Me
  • My Services
  • Free Consultation
  • Our Offices
  • Blog
  • Client Reviews
  • Fiance Visa
    • Introduction to the K-1 Fiance Visa
    • Legal Requirements for the K-1 Fiance Visa
    • How Much It Costs
    • Why Hire Me
    • How You Can Get Started
  • Spouse Visa
    • Introduction to the Spouse Visa
    • Legal Requirements of the Spouse Visa
    • How Much It Costs
    • Why Hire Me
    • How You Can Get Started
  • Adjustment of Status
    • Introduction to Adjustment of Status
    • Legal Requirements for Adjustment of Status
    • How Much It Costs
    • Why Hire Me
    • How You Can Get Started
  • I-601 Waiver
    • Introduction to the I-601 Waiver
    • Legal Requirements of the I-601 Waiver
    • What is Extreme Hardship
    • How Much It Costs
    • Why Hire Me
    • How You Can Get Started
  • I-212 Waiver
    • Introduction to the I-212 Waiver
    • Legal Requirements of the I-212 Waiver
    • How Much It Costs
    • Why Hire Me
    • How You Can Get Started
    • I-212 Filing Locations
  • I-601A Provisional Waiver
    • Introduction to the I-601A Provisional Waiver
    • Legal Requirements of the I-601A Provisional Waiver
    • What is Extreme Hardship
    • I-601A Provisional Waiver Fee & Cost
    • Why Hire Me for the I-601A Provisional Waiver
    • How You Can Get Started on the I-601A Provisional Waiver
  • 212(d)(3) General Waiver
  • 212(h) Waiver for Crimes
  • Inadmissibility and Waivers Chart

I-601 Waiver for Multiple Crimes Involving Moral Turpitude and Adjustment of Status to Permanent Residence Approved

September 11, 2019 By Michael Cho Immigration Lawyer Leave a Comment

I-601 Waiver for Multiple Crimes Involving Moral Turpitude and Adjustment of Status to Permanent Residence Approved

Our office received approval of both the I-485 Application to Adjust Status to Permanent Residence and the I-601 Application of Waiver of Grounds of Inadmissibility for a citizen of Pakistan. Our client was subject to a life-time bar from being admitted to the United States as a lawful permanent resident due to conviction of multiple crimes involving moral turpitude under INA Section 212(a)(2)(A)(i)(I).  

Our client was previously granted asylum and living lawfully inside the United States when he was convicted of two misdemeanor crimes over 15 years ago and sentenced to 11 months of probation. Our office was engaged by the client to prepare and file the I-485 Application to Adjust Status package based on his marriage to a U.S. citizen spouse, as well as prepare and submit the I-601 “extreme hardship” waiver due to his inadmissibility for conviction of multiple CIMT (“Crimes Involving Moral Turpitude”).

We provided the client with a detailed letter going over the the I-485 Adjustment of Status process, including a comprehensive checklist of documents for him and his spouse to gather and return to our office. We prepared all of the required USCIS forms; verified that every piece of information required by the USCIS was answered accurately; and submitted a meticulously prepared Adjustment of Status package to the USCIS while simultaneously preparing the I-601 “extreme hardship” waiver.

I initiated our firm’s comprehensive process for preparation of powerful and effective immigration waiver applications.  I forwarded our Extreme Hardship Worksheet to my clients, which contains questions designed to elicit extreme hardships and other persuasive factors.  I also recommended the couple to a clinical psychologist well-versed in preparing psychological evaluations for immigration waivers and who offers a significantly discounted fee for my clients (please refer to my post on the elements of a powerful psychological evaluation for I-601 waiver applications for more details).

Once we identified the most important factors of the case, we prepared a comprehensive legal brief going over how the facts and circumstances of my client’s situation met the legal standards used to define “extreme hardship.” We prepared a 31 page legal memorandum thoroughly presenting relevant case law as well as the extreme hardship and discretionary factors relevant to this case.  A detailed table of exhibits providing objective proof of every crucial assertion made in our waiver was also included, as it is with all of our waiver applications.  

Section 212(a)(2)(A) of the Immigration & Nationality Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien was released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of the application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

The Board of Immigration Appeals (BIA) held in Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992), that:

[M]oral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.. ..In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

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

(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E).-The Attorney General [now the Secretary of Homeland Security, “Secretary”] may, in [her] discretion, waive the application of subparagraphs (A)(i)(I) … of subsection (a)(2) if-

(B) in the case of,an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it established to the satisfaction of the [Secretary] that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.

(2) the [Secretary], in [her] discretion, and pursuant to such terms, conditions and procedures as [she] may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.

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 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.” 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.

Some of the favorable factors that contributed to approval of this I-601 “extreme hardship” waiver for conviction of multiple crimes involving moral turpitude include the following:

  • The U.S. citizen spouse suffers from three major psychiatric disorders: Generalized Anxiety Disorder, Persistent Depressive “Dysthymic” Disorder, and Post-Traumatic Stress Disorder – Chronic, with a significant family history of psychological illness.
  • The U.S. citizen spouse has a personal history of trauma that has precipitated the development of Post-Traumatic Stress Disorder, which has now been further exacerbated by the threatened separation from her husband
  • The U.S. citizen spouse suffers from asthma, sciatica, and pain due to ailments associated with advancing age. She can only manage her daily life and responsibilities due to the emotional and psychological support and physical assistance she receives from her husband
  • The U.S. citizen spouse’s emotional and psychological status is considered fragile, and long-term separation from her husband will place her at substantial risk for psychiatric decompensation according to a psycho-social evaluation conducted by a licensed clinical psychologist
  • The couple have significant financial debt, and are dependent on the husband’s meager income (with assistance from their adult children), to survive economically.

Our I-601 waiver also thoroughly addressed how the possible scenario of relocation from the U.S. (should the waiver not be granted and the couple be forced to relocate to Pakistan) would also cause extreme hardship to the U.S. citizen spouse:

  • The couple would live in poverty and in constant fear of assault as a member of a persecuted religious minority in Pakistan;
  • The U.S. citizen wife would be exposed to high risk of exposure to infectious disease in a country with third-world level medical infrastructure;
  • The U.S. citizen spouse would lose access to the quality health care needed to monitor and mitigate her asthma and sciatica; no longer be able to obtain and afford necessary medications, nor be able to receive the emergency medical care needed to potentially save her life in a medical crisis;
  • The U.S. citizen spouse would be unable to afford health insurance in Pakistan;
  • The U.S. citizen spouse would lose access to a medical infrastructure that ensures prescriptions are refilled in a timely manner;
  • The U.S. citizen spouse would lose access to competent mental health treatment services at a time when she will be under extraordinary stress and most in need of such services;
  • The U.S. citizen spouse would face stigma associated with mental illness and her religious status, impairing her re-integration into Pakistan’s culture and society;
  • The U.S. citizen spouse would have virtually no job prospects given that she has little employment experience, very limited education, the high rate of unemployment in Pakistan, and her advancing age;
  • The U.S. citizen spouse would face discrimination because of her religious status in a country that has legalized discrimination and has a history of assaults on this minority;
  • The U.S. citizen spouse would be wholly separated from her family in the U.S. and unable to afford to return to the U.S. on an emergency basis.

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). Id. at 301.

The BIA further 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 for relief must bring forward to establish that he 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.

In this case, we also discussed and presented proof of every factor we determined to be important for purposes of securing approval of the I-601 waiver.  We determine these factors based upon close analysis of the clients’ personal situations as well as upon my experience of obtaining approval of I-601, I-212, I-601A, and 212(d)(3) waivers for the past 17 years.   These factors included but were not limited to:

  • A summary discussion of the convictions for crimes involving moral turpitude, as well as any extenuating circumstances that led to the violations and the corresponding the sentence received
  • The applicant’s long period of residence and productive service inside the United States including the presence of a U.S. citizen spouse and several U.S. citizen children
  • The applicant being well-respected in the local religious community of his faith
  • The applicant’s tremendous efforts to raise law-abiding children and support their higher education, which led to all of his children attaining bachelor-level university degrees or higher
  • Numerous sworn-affidavits by family, friends, and prominent officials in a position to judge the character and rehabilitation of the applicant

As a result of our efforts, both the I-485 Application to Adjust Status to Permanent Residence and the I-601 Application of Waiver of Inadmissiblity were approved and this couple can continue to reside lawfully inside the United States.

Filed Under: 212(a)(2)(A), 212(h) Waiver, Adjustment of Status, Blog, Crime of Moral Turpitude, Criminal Convictions, Extreme Hardship, I-601 Waivers, Inadmissibility, Waiver Approvals

Client Approval: I-601 Waiver for Fraud/Misrepresentation Approved for Same Sex Couple

July 8, 2016 By Michael Cho Immigration Lawyer Leave a Comment

Client Approval: I-601 Waiver for Fraud/Misrepresentation Approved for Same Sex Couple

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for an Indian client in a same sex marriage who is 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 entered the U.S. lawfully on a valid non-immigrant visa and has remained in the United States for over 17 years.  During his stay in the U.S., he married a U.S. citizen and applied for Adjustment of Status to permanent residence.  He inadvertently failed to disclose a prior marriage he entered into for a short period of time in his Adjustment of Status package.  He was consequently charged with fraud/misrepresentation pursuant to INA Section 212(a)(6)(C)(i).  He subsequently divorced his spouse, met and married his current same-sex spouse, and applied again for Adjustment of Status.

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 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.” 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 comprehensive I-601 waiver application including a 34 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship.”  We also thoroughly discussed and presented evidence of  the U.S. citizen spouse’s unique background which made him particularly vulnerable to medical and psychological hardship.  This includes the suicide of his father; the drug addiction of his brother; rejection by his family of his sexual orientation; as well as the psychological breakdown these events triggered and that he has suffered from throughout his adult life.

This case was also challenging because the waiver applicant was previously married to members of the opposite sex in the past.  We went beyond the legal standard of extreme hardship to prove the validity and genuine nature of this same sex marriage, and the vital and loving role each spouse plays in ensuring the other’s welfare and well-being.

The supporting documents submitted as part of this I-601 waiver application included:

  • Medical history and diagnosis of the U.S. citizen spouse, including the possibility of a life-threatening medical crisis in the future
  • Psycho-social evaluation of the U.S. citizen spouse which confirms  his Dysthymic Disorder and Generalized Anxiety Disorder
  • Proof of significant financial debt owed by the household and the minimal income earned by the U.S. citizen spouse before meeting and marrying his current spouse
  • Proof of academic achievement and professional accomplishments of the Indian spouse, demonstrating his good moral character and his history of contribution to the economy of the United States
  • Detailed break-down of the family’s household income, expenses and debt/liabilities
  • Proof of financial support provided by the married couple to the elderly mother of the Indian spouse (a U.S. lawful permanent resident), who financially relies on the couple for all of her basic needs
  • Detailed country conditions of India, particularly as it relates to income, job opportunities, medical care, mental health treatment, stigma against homosexuality, and its non-recognition of same sex marriages.
  • Letters of good moral character and rehabilitation for the Indian spouse

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this same-sex couple will be able to live together lawfully in the United States and provide support to an elderly mother in need.

Filed Under: 212(a)(6)(C)(i), Adjustment of Status, Blog, Extreme Hardship, Fraud, I-601 Waivers, Inadmissibility, India, Misrepresentation, Same-sex Marriage, Waiver Approvals

Client Approval: I-601 Waiver Approved in 1.5 Months for Membership in Communist Party

April 15, 2016 By Michael Cho Immigration Lawyer Leave a Comment

Client Approval: I-601 Waiver Approved in 1.5 Months for Membership in Communist Party

We recently obtained approval for the I-601 Application for Waiver of Grounds of Inadmissibility for a Chinese national deemed inadmissible pursuant to INA Section 212(a)(3)(D).  Our client is the spouse of a U.S. citizen who was found inadmissible at her I-485 adjustment of status interview due to prior membership in the Chinese Community Party.

Our office was contacted by the client due to our extensive experience handling I-601 waiver cases, including obtaining waiver approvals for those deemed inadmissible due to membership in a communist party pursuant to INA Section 212(a)(3)(D).

INA Section 212(a)(3)(D) deems inadmissible any immigrant who is or has been a member of or affiliated with the Community or any other totalitarian party, domestic, or foreign:

(i) In general. Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.

Three exceptions apply:

INA Section 212 (a)(D)(ii) Exception for involuntary membership. – Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.

INA Section 212 (a)(D)(iii) Exception for past membership. – Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that-

(I) the membership or affiliation terminated at least-

(aa) 2 years before the date of such application, or

(bb) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and

(II) the alien is not a threat to the security of the United States.

INA Section 212 (a)(D)(iv) Exception for close family members. – The Attorney General may, in the Attorney General’s discretion, waive the application of clause (i) in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States.

There is also a judicially created exception that states that an alien is admissible if his or her membership is “not meaningful.” The U.S. Supreme Court elaborates that membership is “not meaningful” if the alien lacks “commitment to the political and ideological convictions of communism.” Rowoldt v. Perfetto, 355 U.S. 115 (1957).

As we do with all of our waiver cases in which more than one exception or waiver applies, we presented evidence that our client meets the legal standard for every relevant and applicable exception and waiver.  While this is significantly more work for us and not standard practice for some attorneys, we always do our utmost to maximize the probability of approval for our clients at no additional cost.

Specifically, we presented compelling evidence that our client’s membership in the Chinese Community Party was involuntary and “not meaningful.”  We discussed how our client held no leadership positions; never attended a Chinese Communist Party meeting; neither advocated for nor endorsed any part of the Chinese Communist Party ideology; and at no time in her life participated in activities promoting Chinese Communist Party principles or advocating against US interests.

We also presented evidence that our client agreed to join the Chinese Community Party due to the scholarship and post-graduate job opportunities it might offer.  We then cited objective academic research that found that membership in the Communist Party had a significant impact on increasing upward mobility in employment, and on decreasing the risk of downward mobility or discharge.  According to the research we cited, overall, Party Membership accounted for a swing of 30% in the likelihood of a party member experiencing upward or downward mobility, compared to a non-party member (with the non-party member bearing the greater risk of negative employment outcome).

We engaged in an in-depth discussion of how the admission of our client serves the humanitarian purposes of the United States government; promotes the principle of family unity with her U.S. citizen husband; and that it is in the public interest of the United States to allow our client to be admitted for U.S. lawful permanent residence based on her academic background and professional contributions thus far.

This discussion also included a comprehensive illustration of the extreme hardships that our client’s U.S. citizen husband would suffer should he be separated from his wife (or alternatively, forced to return to China).  Specifically, we cited the suspicion, monitoring, and possible censure the U.S. citizen is likely to experience should he re-locate back to China, due to politically sensitive topics he brought up at international conferences as part of his professional duties as an academic.  We also conducted a financial analysis of the couple’s situation and demonstrated the dependency of the U.S. citizen husband on his wife’s substantial legal income.

Based on our expedited preparation of the waiver and filing, the I-601 waiver was approved within 1.5 month of submission to the USCIS.  Our client will now be approved for lawful permanent residence and be able to continue her life in the United States with her husband.

Filed Under: 212(a)(3)(D), Adjustment of Status, Blog, China, Communist Party Membership, Extreme Hardship, I-601 Waivers, Inadmissibility, Waiver Approvals

Adjustment of Status Approved After Prosecutorial Discretion Obtained to Terminate Removal Proceedings

February 18, 2016 By Michael Cho Immigration Lawyer Leave a Comment

Adjustment of Status Approved After Prosecutorial Discretion Obtained to Terminate Removal Proceedings

Our office recently obtained approval of an application for adjustment of status to permanent residence for the foreign spouse of a U.S. citizen.

This was a particularly difficult case since the foreign spouse was still subject to an open removal hearing that occurred when she was a child, and wherein, she and her family were granted withholding of removal.

I personally contacted the prosecutor-in-charge of the Department of Homeland Security’s Office of ICE Counsel and requested joinder in a Motion to Terminate Removal Proceedings so that our client can pursue adjustment of status.

After presenting the compelling factors of the case both verbally and in writing, together with a collection of exhibits that established every relevant factor discussed in our request, the Office of ICE Counsel agreed to join in a Motion to Terminate Removal Proceedings.

This motion was subsequently submitted to the presiding immigration judge of the U.S. Department of Justice, Executive Office for Immigration Review, who found good cause to be shown and granted the Motion to Terminate Removal Hearings.

The Department of Homeland Security enjoys the power of prosecutorial discretion.   Federal courts and the Board of Immigration Appeals have found that the Department of Homeland Security possesses discretion in deciding how best to exercise its immigration enforcement powers. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 489-92 (1999) ( INS retains inherent prosecutorial discretion as to whether to bring removal proceedings); See Matter of Yauri, 25 I&N Dec. 103, 110 (BIA 2009) (DHS has prosecutorial discretion to grant deferred action status to a respondent).

The Department of Homeland Security has also expressed as policy the necessity of exercising its power of prosecutorial discretion. See Doris Meissner, Commissioner: Exercising Prosecutorial Discretion (Nov. 17, 2000); William Howard, Principal Legal Advisor: Prosecutorial Discretion (October 24, 2005).

On June 17, 2011, ICE issued its two most recent policy memoranda on prosecutorial discretion: John Morton, Director: Prosecutorial Discretion: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011); John Morton, Director: Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011).

As John Morton’s Prosecutorial Discretion Memorandum of June 17, 2011 states,

“One of ICE‟s central responsibilities is to enforce the nation‟s civil immigration laws in coordination with U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS). ICE, however, has limited resources to remove those illegally in the United States. ICE must prioritize the use of its enforcement personnel, detention space, and removal assets to ensure that the aliens it removes represent, as much as reasonably possible, the agency‟s enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity of the immigration system.”

John Mortan’s Prosecutorial Discretion Memorandum of June 17, 2011, also puts forth factors to be considered by the agency’s officers, agents, and attorneys.  The following list is not considered exhaustive and no one factor is determinative.  The list of factors cited include:

  1. the agency’s civil immigration enforcement priorities;
  2. the person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
  3. the circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
  4. the person’s pursuit of education in the United States, with particular consideration given those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
  5. whether the person, or the person’s immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
  6. the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
  7. the person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
  8. whether the person poses a national security or public safety concern;
  9. the person’s ties and contributions to the community, including family relationships;
  10. the person’s ties to the home country and conditions in the country;
  11. the person’s age, with particular consideration given to minors and .the elderly;
  12. whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
  13. whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
  14. whether the person or the person’s spouse is pregnant or nursing;
  15. whether the person or the person’s spouse suffers from severe mental or physical illness;
  16. whether the person’s nationality renders removal unlikely;
  17. whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
  18. whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and
  19. whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

Using these memoranda together with our extensive experience presenting persuasive I-601, I-601A, I-212, and 212(d)(3) waiver cases as guidelines, we presented a compelling and persuasive case that allowed termination of removal proceedings.

Our client’s adjustment of status application was subsequently approved after the couple’s “marriage interview,” and the foreign spouse is now a U.S. lawful permanent resident for the first time in her life.

Filed Under: Adjustment of Status, Blog, Prosecutorial Discretion, Removal Proceedings

Client Approval: I-601 Waiver Approved under INA 212(a)(3)(D)(iv) for Community Party Membership

November 27, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Client Approval: I-601 Waiver Approved under INA 212(a)(3)(D)(iv) for Community Party Membership

Our office recently received approval for the I-601 Application for Waiver of Grounds of Inadmissibility for a Chinese national deemed inadmissible pursuant to INA Section 212(a)(3)(D).  Our client is the Chinese father of a U.S. citizen daughter who was found inadmissible at his adjustment of status interview due to membership in a Community Party. His wife, on the other hand, was subsequently approved for U.S. lawful permanent residence.

Our office was then contacted by his U.S. citizen daughter to prepare an urgently needed I-601 waiver so that her father could be allowed to remain in the United States and stay united with his wife and family.

INA Section 212(a)(3)(D) deems inadmissible any immigrant who is or has been a member of or affiliated with the Community or any other totalitarian party, domestic, or foreign.

Three exceptions apply:

INA Section 212 (a)(D)(ii) Exception for involuntary membership. – Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.

INA Section 212 (a)(D)(iii) Exception for past membership. – Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that-

(I) the membership or affiliation terminated at least-

(aa) 2 years before the date of such application, or

(bb) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and

(II) the alien is not a threat to the security of the United States.

INA Section 212 (a)(D)(iv) Exception for close family members. – The Attorney General may, in the Attorney General’s discretion, waive the application of clause (i) in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States.

There is also a judicially created exception that states that an alien is admissible if his or her membership is “not meaningful.” The U.S. Supreme Court elaborates that membership is “not meaningful” if the alien lacks “commitment to the political and ideological convictions of communism.” Rowoldt v. Perfetto, 355 U.S. 115 (1957).

As we do with all of our waiver cases in which more than one exception or waiver applies, we presented evidence that our applicant meets the legal standard for every relevant and applicable exception and waiver.  While this is significantly more work for us and not standard practice for some attorneys, we always do our utmost to maximize the probability of approval for our clients at no additional cost.

Specifically, we presented compelling evidence that our client’s membership in the Community Party was involuntary and “not meaningful.”  Such evidence included affidavits from former colleagues corroborating how meaningless our client’s membership in the Community Party was.

We also stressed that our client’s membership in the Communist Party was primarily maintained to ensure job security.  We cited objective academic research that found that membership in the Communist Party had a significant impact on increasing upward mobility in employment, and on decreasing the risk of downward mobility or discharge.  According to the research we cited, overall, Party Membership accounted for a swing of 30% in the likelihood of a party member experiencing upward or downward mobility, compared to a non-party member (with the non-party member bearing the greater risk of negative employment outcome).

We also engaged in an in-depth discussion of how the admission of our client serves the humanitarian purposes of the United States government; promotes the principle of family unity with his U.S. lawful permanent resident wife and U.S. citizen daughter (and U.S. citizen grand-daughter); and that it is in the public interest of the United States to allow our client to be admitted for U.S. lawful permanent residence.

This discussion also included a comprehensive illustration of the extreme hardships that our client’s lawful permanent resident wife would suffer should she be separated from her husband of 41+ years (or alternatively, forced to return to China and be separated from her U.S. citizen daughter and grand-daughter).

Based on our expedited preparation of the waiver and filing, the I-601 waiver was approved within 1 month of submission to the USCIS.  This tight-knit family will now be allowed to lawfully settle together in the United States.

Filed Under: 212(a)(D)(iv), Adjustment of Status, Blog, China, Communist Party Membership, I-601 Waivers, Inadmissibility, Waiver Approvals

Client Approval: I-601 Waiver and Adjustment of Status Approved in 3.5 Months

July 10, 2015 By Michael Cho Immigration Lawyer 1 Comment

Client Approval: I-601 Waiver and Adjustment of Status Approved in 3.5 Months

This week, we received approval of both an Application for Adjustment of Status to Lawful Permanent Residence and approval of the related I-601 “Extreme Hardship” Waiver for a client subject to a life-time inadmissibility bar to the United States due to fraud/misrepresentation.

The applicant was found to be inadmissible to the United States under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. §1182(a)(6)(C)(i), for having attempted to procure an immigration benefit in the United States by fraud or willful misrepresentation.

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.

Section 212(i) of the Act provides that:

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.

A waiver of inadmissibility under section 212(i) of the Act is dependent on a showing that the bar to admission imposes extreme hardship on a qualifying relative, which includes the U.S. citizen or lawfully resident spouse or parent of the applicant.  The applicant’s spouse is the only qualifying relative in this case.  If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

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 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.” 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.

In this case, we prepared an Application for Adjustment of Status to Lawful Permanent Residence for the applicant based upon marriage to a U.S. citizen.   As with all of our Adjustment of Status cases, we provided a detailed letter going over every step of Adjustment of Status process to our client.  We also provided a point-by-point checklist which describes every supporting document required for the case, making it easy for our clients to know what to gather and forward to our office.

We drafted every USCIS form required for Adjustment of Status, assembled the package for filing with the USCIS, and submitted it on behalf of our client after a final review to make sure every legal and technical requirement was met.

Once the Adjustment of Status application was filed, we began preparation of the I-601 “Extreme Hardship” Waiver. The I-601 Waiver for Fraud/Misrepresentation prepared by our law firm included a complete set of USCIS forms requesting consideration of the I-601 Waiver; a 25 page waiver statement detailing relevant case law favorable to my client’s situation and presenting the extreme hardships that applied to this case; and an extensive collection of exhibits to prove the extreme hardships being presented.

The favorable factors of this case discussed in detail in our I-601 Waiver application include:

  • The U.S. citizen spouse has long suffered from Generalized Anxiety Disorder and Dysthymic “Persistent Depressive” Disorder
  • The U.S. citizen spouse has a significant family history for mental health issues including a sibling who has suffered from clinical depression, and maternal family members with histories of Alzheimer’s disease
  • The U.S. citizen spouse’s father has struggled repeatedly with cancer, severe gout, and hepatitis B, as well as hypercholesterolemia and hypertension.  The U.S. citizen spouse helps take of his father as best he can.
  • The U.S. citizen spouse’s academic research and expertise lies within in area of significant national interest to the United States
  • The U.S. citizen spouse was born and raised in the U.S. and has extensive familial, professional, and social ties to the country.
  • The waiver applicant is a senior executive with a multinational corporation that employs 11,500 people worldwide, and has been entrusted with high-level fiduciary and financial duties by the company

As a result of our effort, the I-601 “extreme hardship” waiver was approved together with the Adjustment of Status application within 3.5 months of submission, and our client was granted U.S. permanent residence.

Filed Under: 601 Waiver News, Adjustment of Status, Blog, Extreme Hardship, Fraud, I-601 Waivers, Inadmissibility, Waiver Approvals

BIA Holds that Adjustment of Status Constitutes an Admission for Purposes of Applying for a Fraud Waiver Under INA Section 237(a)(1)(H)

May 19, 2015 By Michael Cho Immigration Lawyer Leave a Comment

BIA holds that adjustment of status constitutes an admission for purposes of determining an immigrant’s eligibility to apply for a waiver under INA Section 237(a)(1)(H)

I-601 Waiver Legal News

Matter of Agour, 26 I&N Dec. 566 (BIA 2015)

At issue in this case was whether a section 237(a)(1)(H) waiver for certain fraud or misrepresentation at the time of admission is available to aliens who commit fraud in the process of adjusting their status within the United States.

INA section 237(a)(1)(H) states:

(H) Waiver authorized for certain misrepresentations.

The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who–

(i) (I) is the spouse, parent, son or daughter of a citizen of the United States or an alien lawfully admitted to the United States for permanent residence; and

(II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 212(a) which were a direct result of that fraud or misrepresentation.

(ii) is a VAWA self-petitioner. A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.

INA § 237(a)(1)(H) thus provides a discretionary waiver in removal proceedings for certain misrepresentations and fraud at admission that would otherwise render deportable a lawful permanent resident (LPR) or a self-petitioner under the Violence Against Women Act (VAWA).

The applicant is a native and citizen of Morocco who was admitted to the United States on a nonimmigrant visitor visa in 1999.  In July 2001, she married a United States citizen who then filed a visa petition on her behalf.  In 2002, the applicant was granted conditional permanent resident status pursuant to section 216(a) of the Act, 8 U.S.C. § 1186a(a) (2000). The conditional basis of respondent’s permanent residence was removed in 2005 by the approval of a jointly filed Form I-751 (Petition to Remove Conditions on Residence).

The Department of Homeland Security (“DHS”) filed a notice to appear with the Immigration Court on September 5, 2008, charging the respondent with being removable under section 237(a)(1)(A) of the Act, as an alien who is inadmissible based on fraud or misrepresentation under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2006).

This charge was based on allegations that the respondent procured her adjustment of status by fraud or by willfully misrepresenting a material fact when she married for the sole purpose of obtaining permanent residence in the United States.

The applicant sought to waive fraud that occurred after her initial entry into the United States as a nonimmigrant. The question was whether an adjustment of status can be an admission for purposes of the section 237(a)(1)(H) waiver.

Prior BIA decisions discussing the section 237(a)(1)(H) waiver involved aliens admitted to the United States with immigrant visas who were then charged with being removable for fraud or misrepresentation in that initial entry. See, e.g., Matter of Federiso, 24 I&N Dec. 661 (BIA 2008), overruled on other grounds, Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010); Matter of Fu, 23 I&N Dec. 985 (BIA 2006).

The BIA in this case concluded that an alien’s adjustment of status within the United States constitutes an admission for purposes of the waiver at section 237(a)(1)(H) of the Act.

The Section 237(a)(1)(H) waiver is thus not limited only to those aliens who engage in fraud or misrepresentation at the time of entry into the United States with an immigrant visa.  An alien who commits fraud in the course of adjusting status in the United States may waive removal under section 237(a)(1)(A) of the Act as an alien who was inadmissible at the time of adjustment of status based on fraud or misrepresentation.

Filed Under: 601 Waiver News, Adjustment of Status, Blog, Extreme Hardship, Fraud, I-601 Appeal with AAO, I-601 Waivers, Inadmissibility, Removal Proceedings

Client Approval: I-601 Waiver for Fraud/Misrepresentation Approved for Same-Sex Couple

March 2, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Client Approval: I-601 Waiver for Fraud/Misrepresentation Approved for Same-Sex Couple

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a Chinese client who was subject to the fraud/misrepresentation ground of inadmissibility under INA Section 212(a)(6)(C)(i).  He previously misrepresented the nature of his relationship with his same-sex partner during his application for a F-1 student visa.  He did so because he feared that his same-sex relationship might become known to the Chinese government if it was disclosed to the US Dept. of State.

After entering the U.S. as an international student on a validly approved F-1 visa, he married his partner and applied for adjustment of status to permanent residence.  The couple was denied at their adjustment of status interview when the facts of the prior misrepresentation became known to the interviewing USCIS officer.  The same-sex couple contacted my office at that point to prepare their I-601 “Extreme Hardship” waiver and submit it on their behalf.

An I-601 Application for Waiver pursuant to INA Section 212(i) 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.

In support of this couple’s I-601 waiver application, my office prepared a comprehensive 24-page legal brief going over how the facts and circumstances of the couple’s situation met the legal standards used to define “extreme hardship.”  We also discussed and presented evidence of the special circumstances same-sex couples are subject to, including the discrimination, harassment, and intimidation of LGBT individuals in China.  A table of exhibits also listed a variety of evidence in support of a showing of “extreme hardship” including:

  • Psychological evaluation by a clinical psychologist verifying the Generalized Anxiety Disorder and Dysthymic Disorder suffered by the U.S. citizen spouse, as well the critical emotional and psychological support provided by the foreign spouse (the waiver applicant)
  • The cultural and psychological background of the U.S. citizen spouse, including a substantial history of serious mental illness in his immediate family; and a life-long history of shame and loneliness due to his inability to come out to his friends and family
  • Medical confirmation of the debilitating physical symptoms suffered by the US citizen spouse including severe back pain, fatigue, and insomnia
  • A detailed discussion (substantiated by credible evidence) of the status of LGBT individuals in China and the repercussions this couple may suffer if they re-locate to China in order to be together
  • A detailed discussion (substantiated by credible evidence) of the lack of adequate mental health services in China and its potential impact on the US citizen spouse if he were to re-locate to China
  • A detailed breakdown of household expenses and debts, demonstrating the financial catastrophe that would result should the U.S. citizen spouse be unable to remain healthy and continue his professional work
  • The good moral character and rehabilitation of the applicant including the specific circumstances and motivation that led to the misrepresentation

As a result of our efforts, our client was approved for the I-601 waiver within 1 month of submission of the waiver by my office.  The applicant  was also subsequently approved for lawful permanent residence and now resides together with his spouse inside the U.S.

Filed Under: Adjustment of Status, Blog, China, Extreme Hardship, Fraud, I-601 Waivers, Inadmissibility, Same-sex Marriage, Waiver Approvals

Next Page »

Get Started Today

You may request a Free Immigration Consultation.

If you would like to speak with me immediately to begin a case with our firm today, please call 323.238.4620.

Check Out Our Client Reviews

Read what people like you are saying about us on Facebook in our Client Testimonials.

Recent Posts

  • I-601 Waiver for Fraud/Misrepresentation Approved, Inadmissibility for Crimes Involving Moral Turpitude Removed, after Successful Writ of Mandamus Federal Lawsuit
  • I-601 and I-212 Waivers Approved for U.S. Citizen Spouse and Mexican Spouse currently residing outside the United States
  • 212(d)(3) Non-Immigrant Waiver Approved for B-1/B-2 Visa Applicant Charged with Fraud/Misrepresentation and Conviction of Crimes involving Moral Turpitude
  • I-601 Waiver Pursuant to INA 212(h)(1)(A) and INA 212(h)(1)(B) Approved for Israeli Applicant Charged with Crimes involving Moral Turpitude
  • I-601 Waiver for Crime Involving Moral Turpitude Approved for K-1 Fiance

Blog Posts on Waivers

  • 212 Waiver News
  • 212(a)(2)(A)
  • 212(a)(2)(D)
  • 212(a)(3)(D)
  • 212(a)(6)(8)
  • 212(a)(6)(C)(i)
  • 212(a)(9)(A)(i)
  • 212(a)(9)(B)(i)(I)
  • 212(a)(9)(B)(i)(II)
  • 212(a)(9)(B)(v)
  • 212(a)(D)(iv)
  • 212(d)(3) Waivers
  • 212(g) Waiver
  • 212(h) Waiver
  • 212(i) Waiver
  • 601 Waiver News
  • Adjustment of Status
  • B-1 Business Visa
  • Colombia
  • Communist Party Membership
  • Controlled Substance Violation
  • Crime of Moral Turpitude
  • Criminal Admissions
  • Criminal Convictions
  • Discretion
  • Drug Conviction
  • DUI – Driving under the Influence
  • E-2 Treaty Investor
  • Entered Without Inspection
  • Exceptional Circumstances
  • Exceptional or Extremely Unusual Hardship
  • Expedited Approval
  • Expedited Removal
  • Extreme Hardship
  • Fiance Visa
  • Fiance Visa Approvals
  • Fraud
  • Health-related Ground of Inadmissibility
  • Humanitarian Parole
  • I-192 Waivers
  • I-212 Waivers
  • I-601 Appeal with AAO
  • I-601 Waivers
  • I-601A Provisional Waiver
  • IMBRA Waiver
  • Immigrant Intent
  • Inadmissibility
  • India
  • Israel
  • Marijuana
  • Misrepresentation
  • Nicaragua
  • Overstay
  • Petty Offense Exception
  • Physical or Mental Health Disorder Inadmissibility
  • Previous Removal
  • Prosecutorial Discretion
  • Prostitution
  • Removal Proceedings
  • Request for Evidence (RFE)
  • Romania
  • Spouse Visa
  • Turkey
  • Unlawful Presence
  • Violent or Dangerous Crimes
  • Waiver Approvals
  • Writ of Mandamus

Search

Get Answers Now

You may request a Free Immigration Consultation.

Check Out Our Client Reviews

Read what people like you are saying about us on Facebook in our Client Testimonials.

Recent Posts

  • I-601 Waiver for Fraud/Misrepresentation Approved, Inadmissibility for Crimes Involving Moral Turpitude Removed, after Successful Writ of Mandamus Federal Lawsuit
  • I-601 and I-212 Waivers Approved for U.S. Citizen Spouse and Mexican Spouse currently residing outside the United States
  • 212(d)(3) Non-Immigrant Waiver Approved for B-1/B-2 Visa Applicant Charged with Fraud/Misrepresentation and Conviction of Crimes involving Moral Turpitude
  • I-601 Waiver Pursuant to INA 212(h)(1)(A) and INA 212(h)(1)(B) Approved for Israeli Applicant Charged with Crimes involving Moral Turpitude
  • I-601 Waiver for Crime Involving Moral Turpitude Approved for K-1 Fiance
FacebookLinkedInTwitter
American Immigration Lawyers Association Los Angeles County Bar Association State Bar of California University of Chicago Law School

Copyright © 2023 Smart Immigration Lawyer. All Rights Reserved.

Privacy Policy | Cookie Policy