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Client Approval: I-601 Waiver and I-212 Waiver Approved for 10 Year Unlawful Presence Bar and 10 Year Deportation Bar

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

Client Approval: I-601 Waiver and I-212 Waiver Approved for Brazilian Applicant

Our office received approval of both the I-601 Waiver (Application for Waiver of Excludability) and I-212 Waiver (Application for Permission to Reapply for Admission) for the Brazilian spouse of a U.S. citizen wife.  The couple have one daughter together who is two years old.  They also raise a 6 year old son together who is from a prior relationship of the U.S. citizen wife.

The Brazilian husband entered the U.S. on a B-1/B-2 visitor visa and overstayed for over approximately 1.5 years in the country.  He was then detained and removed from the United States.  He subsequently re-located from his home country of Brazil to the United Kingdom for greater economic opportunities that would allow him to support his family back in the United States.

The U.S. citizen wife contacted me after her husband attended his immigrant visa interview at the U.S. embassy and was denied for the immigrant visa after being deemed inadmissible to the United States.  He was subject to the 10 year “unlawful presence bar” pursuant to INA INA Section 212(a)(9)(B) as well as the 10 year “deportation bar” pursuant to INA Section 212(a)(9)(A)(i) and (ii).

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)(9)(A)(i) and (ii) of the Immigration and National Act, as added by IIRAIRA Section 301, provides that foreign nationals who have been ordered removed may not be readmitted to the United States until they have stayed outside the U.S. for a specified period of time:

  • 5 years for individuals removed through summary exclusion or through removal proceedings initiated upon the person’s arrival in the U.S.;
  • 10 years for those otherwise ordered removed after a deportation hearing or whodeparted the United States while an order of removal was outstanding; and
  • 20 years for a second or subsequent removal.

The I-212 waiver allows foreign nationals who wish to return to the U.S. prior to meeting the required amount of time outside the U.S. to file an application for permission to reapply pursuant to INA Section 212(a)(A)((iii).

The USCIS exercises broad discretion when adjudicating I-212 waiver requests for permission to reapply.  The following may be considered positive factors in granting permission for early re-entry:

  •  Basis for the deportation
  • Recency of deportation
  • Foreign national’s length of residence in the U.S., and status held during that presence
  • Family responsibilities and ties to the U.S.
  • Foreign natonal’s evidence of good moral character
  • Foreign national’s respect for law and order
  • Evidence of reformation and rehabilitation
  • Hardship involving the applicant and others
  • Need for the applicant’s services in the U.S.
  • Whether the applicant has an approved immigrant or non-immigrant visa petition
  • Eligibility for a waiver of other inadmissibility grounds
  • Absence of significant undesirable or negative factors

Negative factors may include:

  • Evidence of moral depravity, including criminal tendencies reflected by an ongoing unlawful activity or continuing police record
  • Repeated violations of  immigration laws, willful disregard of other laws
  • Likelihood of becoming a public charge
  • Poor physical or mental condition (however, a need for treatment in the United States for such a condition would be a favorable factor)
  • Absence of close family ties or hardships
  • Spurious marriage to a U.S. citizen for purpose of gaining an immigration benefit
  • Unauthorized employment in the United States
  • Lack of skill for which labor certification could  be issued
  • Serious violation of immigration laws, which evidence a callous attitude without hint of reformation of character
  • Existence of other grounds of inadmissibility into the U.S.

”Extreme hardship,” for purposes of the I-601 Waiver, 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.

I drafted a comprehensive 25+ page waiver memorandum outlining the relevant case law favorable to my client’s situation.  It also discussed in detail the extreme hardships the U.S. citizen wife (and their children) are presently suffering from, and proved how they would worsen in the event of continued separation of this family.  I also highlighted a variety persuasive factors that I believed warranted an exercise of favorable discretion on the part of the USCIS.

Some of the favorable factors in this case included the following:

  • The U.S. citizen wife suffers from a number of medical conditions including Gallstone Pancreatitis and emotional depression.  She almost died from post-operative pneumonia after a recent medical procedure.
  • The U.S. citizen wife’s U.S. citizen son suffers from Attention Deficit Hyperactivity Disorder (“ADHD”), Obsessive Compulsive Disorder (“OCD”), Pervasive Developmental Disorder, and Adjustment Disorder with Mixed Emotions and Conduct.  He sees a psychologist regularly and takes medication for his conditions.
  • The U.S. citizen wife resides with her elderly parents, both of whom suffer from serious medical conditions.  The U.S. citizen wife’s father suffers from Pulmonary Thromboembolism, Hypertension, and Emphysema and has been informed by his physician that he may not survive his next heart attack.  The U.S. citizen wife takes care of her parents as best she can on a daily basis and helps manage their medical treatment.
  • The U.S. citizen wife has only a high school education, does not speak Portuguese, and has minimal employment prospects in Brazil and the United Kingdom.
  • The Brazilian husband worked diligently while in the United States to support his wife and two children.  He has continued to do so while residing abroad, sending money to his family every month while enduring a painful separation of almost 4 years from his beloved wife and two children

As a result of the I-601 Waiver and I-212 Waiver prepared and submitted by my office, both waiver applications were approved and the Brazilian husband now resides in the United States as a lawful permanent resident of this country.

Filed Under: 212 Waiver News, 601 Waiver News, Blog, Brazil, Extreme Hardship, I-212 Waivers, I-601 Waivers, Inadmissibility, Overstay, Removal Proceedings, Spouse Visa, Unlawful Presence, Waiver Approvals

Client Approval: 212(d)(3) Waiver, F-1 Visa and Driving Under the Influence (DUI)

September 23, 2013 By Michael Cho Immigration Lawyer 2 Comments

212(d)(3) Non-Immigration Waiver Approved for DUI

I recently prepared and submitted a 212(d)(3) non-immigrant waiver on behalf of a Brazilian client.  She subsequently received approval for extension of her F-1 visa.  My client was previously arrested for driving under the influence of alcohol while inside the United States.  During her visit to see family in Brazil, she applied for extension of her F-1 student visa.  She was informed by the U.S. consulate that she would have to undergo a medical examination.  At the medical examination, she was classified as having a “Class A” condition due to the recency of the DUI conviction and strict Technical Guidelines of the Center for Disease Control and Prevention.  Consequently, she was informed that she would be inadmissible to the United States based on being subject to the health ground of inadmissibility pursuant to INA Section 212(a)(1)(A)(iii)(II):

Any alien who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)–…(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…is inadmissible

My client is an outstanding graduate student who is the recipient of a prestigious tuition scholarship, has received numerous honors and awards in the past, and is involved in a variety of extracurricular activities related to her field of specialization.  This was her first DUI conviction and she completed her Diversion Agreement program in full including paying the court fee; completing a drug and alcohol assessment and recommended treatment program; attending a victim impact panel;  and not using any drugs or alcohol during the term of her Diversion Agreement program.  By completing the Diversion Agreement, she is scheduled to have the DUI conviction dismissed by the court in 2014.  However, she was scheduled to begin the academic semester in the fall of 2013.

I prepared a comprehensive 212(d)(3) non-immigrant waiver  in the form of a legal brief discussing the three legal factors set forth by Matter of Hranka, 16 I&N Dec. 491 (BIA 1978).

In the case, Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the Board of Immigration Appeals reversed a district director’s denial of a waiver application filed by a Canadian woman who had been deported for engaging in prostitution and admitted to previous heroin use.  She filed her application only two years after having been deported.  She requested entry to visit relatives and engage in various tourist activities.

In overturning the district director’s decision to deny the application, the BIA accepted as proof of rehabilitation letters from the applicant’s mother, and the principal of the high school the applicant had attended, who is a psychologist.  It held that the applicant’s reasons for entering the United States need not be compelling.  The BIA articulated three criteria for granting a waiver under INA 212(d)(3)

1.      The risks of harm in admitting the applicant;

2.      The seriousness of the acts that caused the inadmissibility; and

3.      The importance of the applicant’s reason for seeking entry.

 Both Department of State and the Foreign Affairs Manual specify that any nonimmigrant may request a waiver as long as his or her presence would not be detrimental to the United States.  They provide that “while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” See 22 CFR 40.301 Foreign Affairs Manual (FAM) 40.301 N3.  Furthermore, the Admissibility Review Office has confirmed that it will follow and adhere to Matter of Hranka in adjudicating requests for INA 212(d)(3) waivers.

In my client’s case, I addressed each of the factors laid out by Matter of Hranka while emphasizing the importance of the studies she was pursuing (which held direct ramifications for benefiting the welfare of communities within the United States); her successful completion of all aspects of her DUI Diversion Agreement Program; her track record of academic excellence and achievement which would be derailed if she missed the start of her fall academic semester; the potential consequences of missing the start of her fall academic semester, which included loss of her tuition scholarship; and her history of law-abiding and ethical behavior which was supported by numerous affidavits from her professors and colleagues.

More importantly, I argued in the alternative that my client should not be deemed subject to the health ground of inadmissibility since INA Section 212(a)(1)(A)(iii)(II) applies to those whose “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…”  I set forth arguments and supporting documents demonstrating that there is no likelihood of my client’s DUI recurring, given the importance she places on her studies, her history of good conduct, and other evidence of complete rehabilitation.

Based upon these factors, my client was approved for the F-1 extension and is now in the United States successfully continuing her studies with no loss of school time whatsoever.

Filed Under: 212(d)(3) Waivers, Blog, Brazil, DUI - Driving under the Influence, Inadmissibility, Waiver Approvals

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  • I-601 Waiver for Fraud/Misrepresentation Approved, Inadmissibility for Crimes Involving Moral Turpitude Removed, after Successful Writ of Mandamus Federal Lawsuit
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  • I-601 Waiver for Crime Involving Moral Turpitude Approved for K-1 Fiance
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