China - Smart Immigration Lawyer

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

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.

I-212 Waiver and I-601 Extreme Hardship Waiver Approved for Chinese Client

December 8, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of both the I-601 Waiver (Application for Waiver of Grounds of Inadmissibility) and I-212 Waiver (Application for Permission to Reapply for Admission) for the Chinese spouse of a U.S. citizen husband.

Our client lawfully entered the U.S. on a B-1/B-2 visitor visa. She overstayed in the U.S. due to a misunderstanding of U.S. immigration laws related to the I-539 Application to Extend Non-Immigrant Status.

She was subsequently removed from the U.S. while attempting re-entry into the U.S.

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).

In Matter of Tin, 14 I & N 371 (1973), and Matter of Lee, 17 I & N Dec. 275 (1978), the Board of Immigration Appeals established the standards to be considered in adjudicating applications for permission to reapply.

In Matter of Tin, the BIA stated that in determining whether consent to reapply for admission should be granted, all pertinent circumstances relating to the application should be considered including: 1. the basis for deportation; 2. recency of deportation; 3. applicant’s length of residence in the United States; 4. the applicant’s good moral character; 5. the applicant’s respect for law and order; 6. evidence of reformation and rehabilitation; 7. The applicant’s family responsibilities; 8. Any inadmissibility to the United States under other sections of law; 9. hardship involving the applicant and others; 10. the need for the applicant’s services in the United States; and 11. whether the applicant has an approved immigrant or nonimmigrant visa petition.

In Matter of Lee, the BIA stated that INA 212(a)(9)(A)(iii) was intended to be remedial rather than punitive, explaining that the factor of “recency of deportation” can only be considered when there is a finding of poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience.

Our client was also charged with fraud or willful misrepresentation under INA Section 212(a)(6)(C) of the Immigration and Nationality Act.

INA 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.

INA 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).

For practical purposes, when the I-601 “Extreme Hardship” waiver is filed together with the I-212 Waiver, preparing a winning I-601 waiver application (by demonstrating extreme hardship to the qualifying relative and presenting a situation that warrants favorable discretion by the adjudicating officer) allows the applicant to also meet the standard for approval of the I-212 waiver.

In other words, if your I-601 waiver is approved, then the I-212 waiver will generally be approved as well.

We drafted a comprehensive 24+ 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 husband is presently suffering from, and proved how they would worsen in the event of continued separation from his beloved wife. We 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 includes the following:

The U.S. citizen husband shares physical and joint legal custody over his children with his former partner. He would not be allowed to re-locate abroad with some of the children due to regular visitation rights exercised by the mother of the children. His U.S. citizen children would be emotionally and psychologically devastated should their father be forced to leave the U.S. to be with his wife. On the other hand, the U.S. citizen husband finds it increasingly difficult support his household alone given his deteriorating physical and psychological state.
The U.S. citizen husband’s monthly expenses continue to exceed his income. He also does not speak, read, or write Mandarin Chinese and would have limited employment-prospects if he located abroad to China to be with his wife.
The U.S. citizen husband is postponing much-needed surgery for a medical conditions because he cannot afford to stop working and fall deeper into debt. He also needs his wife by his side to help care for his children (and his elderly U.S. citizen mother) during his period of recuperation post-surgery.

Due to our efforts, our client was approved for both the I-212 waiver and I-601 waiver in less than 5 months after submission to the USCIS. This family can now lawfully reside together inside the United States.

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

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:

(I) the membership or affiliation terminated at least-

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

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

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.

Client Approval: 212(d)(3) Non-Immigrant Waiver Approved for Fraud/Misrepresentation

August 14, 2015 By Michael Cho Immigration Lawyer Leave a Comment

We recently received approval for a 212(d)(3) non-immigrant waiver prepared on behalf of a Chinese client who was subject to the fraud/misrepresentation life-time bar pursuant to INA Section 212(a)(6)(C)(i).

Our client was previously employed in the U.S. under the H-1B visa and had an EB-1 category immigrant visa petition filed on his behalf. Unfortunately, after self-preparing a TN visa application on his own, our client and his spouse were denied entry into the U.S. and both charged with fraud/misrepresentation due to inaccuracies discovered in their USCIS and Dept. of State application forms.

Years later, our client attempted to enter the U.S. temporarily for business purposes but was denied at the US consulate. He subsequently contacted my office for assistance in obtaining a waiver of INA Section 212(a)(6)(C)(i) and approval of a B-1 visa to temporarily visit the U.S. to attend an industry conference and meet with business partners.

We 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 our client’s case, we addressed each of the factors laid out by Matter of Hranka emphasizing the importance of our client’s reason for entering the U.S.: namely, the vital importance of the products provided by our client’s company which is utilized by U.S. companies in projects integral to the national security and defense of the United States.

We emphasized the non-existent risk of our client overstaying or violating the terms of a B-1 visa, given the substantial venture capital funding raised by his China-based start-up; the number of employees employed by our client’s company; our client’s stellar background of executive and technological accomplishments; as well as his personal and financial ties to China and Canada (where his immediate family resides).

Based upon these factors, our client was approved for the 212(d)(3) non-immigrant waiver by the Admissibility Review Office in Washington D.C., and subsequently, for the B-1 Visitor Visa. These types of cases are difficult to get approved due to the tendency of US consular officers to attribute “immigrant intent” to non-immigrant visa applicants and consequently, refuse recommendation of the 212(d)(3) waiver. This was especially so in this case because our client had demonstrated immigrant intent in the past through the EB-1 category immigrant visa petition that was filed on his behalf.

Due to our extensive preparation of the waiver and repeated lobbying undertaken to ensure its adequate consideration and review by the U.S. consulate, our client is now able to enter the United States and further the success of his fast-growing company.

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

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

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.

I-601 Extreme Hardship Waiver Approved Based on China Country Conditions

October 8, 2013 By Michael Cho Immigration Lawyer Leave a Comment

I-601 Waiver News

The applicant in this case is a native and citizen of China who entered the United States using a photo-substituted passport. The applicant was deemed inadmissible under section 212(a)(6)(C)(i) of the Act for willful misrepresentation of a material fact in order to procure an immigration benefit. The applicant is married to a U.S. citizen and the son of lawful permanent resident parents.

The applicant applied for a waiver of inadmissibility pursuant to Section 212(i) of the Act in order to reside with his wife and his parents in the United States.

Section 212(a)(6)(C)(i) of the Act provides:

In general. – 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) provides, in pertinent part:

(1) The Attorney General.[ now Secretary of Homeland Security) may, in the discretion of the Attorney General [now Secretary of Homeland Security], waive the application of clause (i) of subsection (a)(6)(C) in the case of an immigrant 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 permanent resident spouse or parent of such an alien ….

The specific take away from this case is that Chinese applicants should always mention the one child policy of the Chinese government, and how this policy is liable to impact the life of the qualifying relative. More generally, the country conditions of any country should discussed if it likely to have a significant and detrimental impact upon the qualifying relative. The Department of State Travel Advisory is often referenced by waiver applicants, but other credible sources can also be used.

Additionally, this case demonstrates the importance of showing extreme hardship to the applicant, when it subsequently causes extreme hardship to the qualifying relative. In this case, the applicant’s father is an asylee from China who runs the risk of being persecuted upon his return to China. Additionally, the applicant himself may be jailed for leaving China without permission and sterilized for violation of China’s one child policy upon his return. Such an event is highly likely to cause extreme psychological, financial, and ultimately physical hardship to the applicant’s father, who is the qualifying relative. Thus, the impact of the Chinese government’s policies can be discussed in the context of both the applicant and the qualifying relative.

The favorable factors that led to approval of the I-601 Extreme Hardship Waiver cited by the AAO in its decision are listed below:

The lawful permanent resident (LPR) father has lived in the United States since 1989 when he was granted asylum.
The LPR father is sixty two years old and lives with his son, the applicant, who he describes as his favorite son.
The LPR father works full-time as a cook at his take-out Chinese restaurant, and often has leg pain and other aches because he is old. He has high blood pressure and high cholesterol.
The applicant (the LPR father’s son) has always been by his father’s side, taking care of him. The LPR father states he cannot imagine his life without his son, sobbed when his son’s waiver application was denied, and has not been able to eat or sleep.
The LPR father states that if his son returns to China, he would have to go with him. However, he was granted asylum in the United States and can never go back to live in China because he worries he would be persecuted by the Chinese government if he returned.
The LPR father fears his son would be jailed on account of leaving China without permission and that his son would be sterilized due to China’s one-child policy.
The LPR father states that he still remembers the terrible life he had in China and he is no longer familiar with living in China.
The LPR father would have to sell his restaurant and would risk not having any job in China considering his old age.
The LPR father lives with his son and his son’s wife and children in the United States.
The applicant has significant family ties to the United States, including his U.S. citizen wife, two U.S. citizen children, lawful permanent resident parents, and other relatives
There is demonstrated extreme hardship to the applicant’s entire family if he were refused admission
Affidavits describe the applicant as a kind and gentle person, hard worker, and good husband
The applicant has no arrests or criminal convictions of any kind

I-601 Extreme Hardship Waiver Approved by AAO for Chinese National

September 4, 2013 By Michael Cho Immigration Lawyer Leave a Comment

I-601 Waiver News

The applicant in this case is a native and citizen of China who was found to be inadmissible to the United States under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. §1182(a)(6)(C)(i), for having attempted to procure a visa, other documentation, or admission into the United States by fraud or willful misrepresentation.

Specifically, the applicant attempted to procure entry to the United States in 1992 by presenting a photo-substituted Taiwanese passport.

The applicant sought a waiver of inadmissibility pursuant to section 212(i) of the Act, 8 U.S.C. §.1182(i), in order to reside in the United States with her U.S. citizen spouse and children, born in 1997 and 1999 . The AAO sustained the applicant’s appeal and granted the I-601 extreme hardship waiver.

The take-away from this case is that whenever a Chinese applicant is involved, you should ALWAYS cite China’s one child policy and the repercussions likely to occur to the applicant and U.S. citizen or lawful permanent resident relative. Governmental policies in other countries that are likely to cause extreme hardship to the family upon relocation should also be described and documented.

Additionally, the psychosocial evaluation should ideally describe the integral, essential, vital, and leading role of the applicant in the life of the family (and the disruption that will occur without the applicant’s presence in the U.S.) This dynamic should be corroborated by affidavits from family members, extended relatives, friends, and others with direct knowledge of the situation.

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.

(ii) Waiver authorized. – For provision authorizing waiver of clause (i), see subsection (i).

Section 212(i) of the Act provides:

(1) 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.

The favorable factors in this case are as follow:

There is a close resemblance in this case to the fact pattern found in the oft-cited Matter of Kao and Lin, 23 I&N Dec. 25 (BIA 2001). In Matter of Kao and Lin, the Board of Immigration Appeals found that a fifteen-year old child who lived her entire life in the U.S., who was completely integrated into the American lifestyle, and who was not fluent in Chinese, would suffer extreme hardship if she relocated to Taiwan.
In this case, the applicant’s children are currently in their teens and fully integrated into the United States lifestyle and educational system. To uproot them at this stage in their education and social development would constitute extreme hardship to them, and by extension, to the applicant’s U.S. citizen spouse.
The U.S. citizen spouse has been residing in the United States for over 10 years. He would have to leave his gainful employment, family members, and his community. His sister and uncle reside in the U.S.
The U.S. citizen spouse and the applicant have been together since 1995 and they are an integral part of each other’s life.
The U.S. citizen spouse works long hours as a Japanese cook. However, Japanese food is not popular in China. Alternatively, he states that in order to get a job as a cook in China, he would have to get a license. To become a manager in a restaurant in China, he would need a college degree.
He needs his wife by his side to take care of him and his daughters. He cannot raise his daughters on his own since his wife has been the primary caregiver.
The U.S. citizen spouse would suffer a financial shortfall without his wife’s presence in the U.S. and be unable to afford long-distance phone calls and trips to China to visit his wife.
Affidavits from the U.S. citizen husband, applicant, and daughters corroborate the above statements and outline the role the mother plays in their daily lives and family dynamics.
A psychosocial diagnostic evaluation details that the U.S. citizen spouse is suffering from Adjustment with Mixed Anxiety and Depressed Mood precipitated by his wife’s immigration situation. The evaluation further states that the applicant is one of the chief designers and implementers of the family life, is essential to the close-knit family unit and vital to the lives of her husband and children.
Medical documentation states the U.S. citizen spouse has Hepatitis B and needs continued treatment
Financial documentation establishes the role the applicant plays in the finances of the household, earning approximately $180 per week
Because the U.S. citizen and his wife have two daughters, the applicant would be sterilized in China due to the one child policy. An additional fee would be imposed for their two daughters to attend school in China.
Affidavits from extended family corroborate the hardships the U.S. citizen husband would face without his wife’s presence in the U.S., or alternatively, if he were to relocate to China with the children.
The applicant has significant community ties to the U.S.; has been gainfully employed in the U.S.; has paid taxes; and more than twenty years have passed since she sought to procure entry to the U.S. using fraud or misrepresentation