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BIA Precedent Decisions on Extreme Hardship for Purposes of the I-601 Waiver and I-601A Provisional Waiver

June 6, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Provided below is a list of precedent decisions by the Board of Immigration Appeals on “extreme hardship.” These decisions are provided as a reference to adjudicating officers of the I-601 and I-601A Provisional Waiver units.

All of the waivers prepared by my office, including the I-601 Waiver and I-601A Provisional Waiver, incorporate relevant case law that pertain to the specific facts of our client’s case.

We constantly monitor administrative, legal, and other changes to the waiver process so that our clients’ waiver applications can be maximized for success.

We begin the waiver preparation process by providing an “extreme hardship” worksheet to our clients. This worksheet helps us identify all of the hardships being suffered by the qualifying relative(s) and the families we represent. This is important because while any single hardship may not be considered “extreme” in and of itself, multiple hardships can “add up” to become “cumulative” and meet the “extreme hardship” standard.

We also provide a detailed checklist of supporting documents to our clients so that every hardship we analyze and discuss can be objectively proven to the satisfaction of the adjudicating waiver officer.

We have a long-standing relationship with a clinical psychologist who is well-versed in preparing psychological evaluations for purposes of the I-601 Waiver and I-601A Provisional Waiver and offers a discounted fee to our clients. Should you decide to get evaluated by your own psychologist, I provide a sample psychological evaluation template so that the evaluation can be drafted in a clear and effective manner by those unfamiliar with the extreme hardship waiver process.

Our completed waiver memos are typically 25-30 pages in length. To this, we add Exhibits to prove every relevant statement made in the waiver. I always forward a draft of the waiver to my clients for review before anything is submitted to the USCIS. We also prepare all of the USCIS forms, organize the Exhibits, and meticulously assemble the waiver package before submitting it to the USCIS on behalf of our clients.

BIA Decision	Summary of Decision on Extreme Hardship
Matter of Sangster, 11 I&N Dec. 309 (BIA 1965)	Economic detriment, in absence of other substantial equities, does not establish extreme hardship. No evidence that suitable employment was unavailable.
Matter of Saekow, 17 I&N Dec. 138 (BIA 1979)	In reference to applicant's suspension of deportation, the Immigration Judge determined that the respondent failed to demonstrate that his deportation would result in extreme hardship to himself or to a specified family member.
Matter of Pilch, 21 I&N Dec. 627 (BIA 1996)	• The term "extreme hardship" refers to hardship that is unusual or beyond that which would normally be expected upon deportation; the common results of deportation and exclusion are not sufficient to prove extreme hardship. • Emotional hardship caused by the severing of family and community ties is a common result of deportation and does not constitute extreme hardship. • To endure the hardship of either separation when it can be avoided by joining the applicant abroad, or of relocation when it can be avoided by remaining in the United States, is a matter of choice and not the result of removal or inadmissibility.
Matter of Piggott, 15 I&N Dec. 129 (BIA 1974)	Immigration Judge finding that the respondents would not be able to provide for their own necessities in Antigua and that their children would suffer as a result of the parents' inability to provide them with proper food, living facilities, and education in that country. Youngest child has rheumatic fever. She is being treated in the US, and equal medical is not available in Antigua. Extreme hardship requirement met.
Matter of Ngai, 19 I&N Dec. 245 (Comm. 1984)	The approval of an application for a waiver pursuant to section 212(h) of the INA is dependent in part upon showing of extreme hardship, and thus only in cases of great actual or prospective injury to the qualifying family member will the bar be removed.
Matter of Louie, 10 I&N Dec. 223 (BIA 1963)	Elderly US Citizen father with no other relatives in the US. Respondent takes him to weekly doctors' appointments. In view of the father's advanced age and physical condition it would be extremely harsh, to both the respondent and his father, to deport the respondent from the US. Extreme hardship met.
Matter of Lopez-Monzon, 17 I&N Dec. 280 (Comm 1979)	• Eligibility under section 212(i) of the INA to apply for a waiver of grounds of excludability is limited to aliens who are spouses, parents or children of US citizens or Lawful Permanent Residents. Congressional intent was to provide for the unification of families and avoid the hardship of separation. • U.S. Citizen child did not reside in the US. The father (who resided in Guatemala) had custody of the child. No evidence was presented to indicate applicant would obtain custody of the child and no persuasive evidence that the applicant intended to bring the child to reside in the US. Approval of the waiver would not have reunited a family; favorable exercise of discretion was not granted.
Matter of Loo, 15 I&N Dec. 601 (BIA 1976)	Applicant has 25 years residence in the US, a Lawful Permanent Resident daughter, and a small investment in a US business in which he was employed. Extreme hardship met.
Matter of Liao, 11 I&N Dec. 113 (BIA 1965)	Hardship claim of fear of persecution and diminished employment opportunities. Applicant did not establish that his deportation would result in extreme hardship because he refused to return to that country after completing the program of military training for which he entered the US and expressed political views which are not looked upon with favor by the Nationalist Government of China on Formosa.
Matter of lge, 20 I&N Dec. 880 (BIA 1994)	Assuming a United States citizen child would not suffer extreme hardship if he accompanies his parent abroad, any hardship the child might face if left in the United States is the result of parental choice, not of the parent's deportation.
Matter of Leon, 10 I&N Dec. 274 (BIA 1963)	Respondent has US military service with a service connected disability (30% ), is a US high school graduate, employed, and most of his adult years were spent in the US. Earning ability has been impaired by the service connected disability. Extreme hardship met.
Matter of Kojoory, 12 I&N Dec. 215 (BIA 1967)	Extreme hardship not established in relation to applicant's claim of fear of persecution if returned to Iran, limited economic opportunities, lack of opportunities in his own field, and difficulty adjusting to the standard of living.
Matter of Kim, 15 I&N Dec. 88 (BIA 1974)	Suspension of deportation under section 244(a)(1) of the INA based on 7 years physical presence in the US will not be granted on a claim of extreme hardship, where the only facts presented tended to show better economic and educational opportunities for her US citizen children in the US than in Korea.
Matter of H-, 14 I&N Dec. 185 (RC 1972) - sec. 212(h)	Extreme hardship within the meaning of section 212(h) of the INA is established where the applicant's spouse is 81 years old and has already endured a 15-year exile from the US to reside with the applicant in Mexico. The applicant established complete reformation from the activities that rendered her excludable and the stability between her US Citizen spouse was satisfactorily demonstrated; Therefore, a waiver pursuant to 212(h) was granted.
Matter of Gibson, 16 I&N Dec. 58 (BIA 1976)	Even though the alien meets the physical presence and Good Moral Character requirements of the statute, suspension of deportation was ordered denied because economic detriment which may result from deportation does not meet the test of extreme hardship within the contemplation of section 244(a)(1) of the INA. Alien was employed as a custodian and should have no difficulty in finding suitable employment abroad. No relatives in the US.
Matter of Da Silva, 217 I&N Dec. 288 (Comm 1979)	• A discretionary decision must be based on the weight factors present in the case, both adverse and favorable. Questionable factors should not be considered at all, or should be resolved in favor of the applicant. • A waiver application under section 212(i) of the INA will be approved in the interest of family reunification where the requisite relationship exists and the favorable factors outweigh the unfavorable factors.
Matter of Chumpitazi, 16 I&N Dec. 629 (BIA 1978)	The loss of job and the financial loss incurred is not "extreme hardship" within the meaning of section 211 of the INA, despite a 11-year stay in the US.
Matter of Cervantes -Gonzalez, 22 I&N Dec. 560 (BIA 1996)	Outlines hardship factors to consider in determining whether an alien has established extreme hardship pursuant to section 212(i) of the INA.
Matter of Anderson 16 I&N Dec. 596 (BIA 1978)	While political and economic conditions in an alien's homeland are relevant factors in determining extreme hardship under section 244(a)(1) of the INA, they do not justify a grant of relief unless other factors such as advanced age, severe illness, family. ties, etc. combine with economic detriment to make deportation extremely hard on the alien or the citizen or permanent resident members of his family.
Matter of Alonzo, 17 I&N Dec. 292 (Comm 1979)	• The birth of a US Citizen child, whether or not born during a lawful stay of the parents in the US, is a favorable factor and must accorded considerable weight in the adjudication of an application for the relief of a waiver of grounds of excludability under section 212(i) of the INA. • The section 212(i) waiver should be granted in the exercise of discretion, where favorable factors are present, and there is an absence of countervailing adverse factors. • No statutory or other requirement that extreme hardship be shown in a section 212(i) waiver case. • Applicant sought waiver of excludability for obtaining visas by fraud and misrepresentation. The violation was not held as an adverse factor action because it was the violation for which the alien seeks to be forgiven.
Matter of Uy, 11 I&N Dec. 159 (BIA 1965)	Applicant did not establish his deportation would result in extreme hardship, merely because he would suffer some economic hardship due to limited opportunities in his field of training.

Client Approval: I-601 Waiver for Crime Involving Moral Turpitude Approved in 11 Days

May 7, 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 citizen of South Korea who was subject to a life-time bar from being admitted to the United States for conviction of a crime involving moral turpitude under INA Section 212(a)(2)(A)(i)(I). Our client was previously convicted of a crime involving insurance fraud and sentenced to one-year probation.

Our office was contacted after the South Korean wife and her U.S. citizen husband prepared and filed for the I-601 Waiver on their own after the applicant was deemed inadmissible at her consular interview which took place at the U.S. Embassy in Seoul. Their “self-prepared” I-601 Waiver triggered a comprehensive “Request for Evidence” from the USCIS stating that the couple had failed to adequately establish and prove “extreme hardship.”

This was a particularly difficult case because the U.S. citizen husband already resides in South Korea with his wife, thus requiring us to overcome the assumption that any hardship he is suffering is not extreme since he has already re-located outside of the U.S.

The Request for Evidence from the USCIS specifically stated the following:

This office may approve a waiver of the inadmissibility ground(s) under section 212(h) of the INA, if you can show that either:

• You have a qualifying relative who is a U.S. citizen or lawful permanent resident of the United States; and
• Your qualifying relative would suffer extreme hardship on account of your ineligibility to immigrate; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

In addition to the above requirements, if an applicant has been convicted of a violent or dangerous crime, USCIS will not waive the inadmissibility as a matter of discretion unless the individual can show an extraordinary circumstance, such as:

• One involving national security or policy considerations; or

• If the denial of your admission would result in exceptional and extremely unusual hardship.

Your application does not include sufficient evidence to establish that your qualifying relative spouse, your U.S.-born husband, [Name Withheld], would suffer extreme hardship if you are refused admission to the United States. Also, it has not yet been established that it would be an extreme hardship if your husband were to remain in the United States apart from you. And, it has also not yet been explained or established by your husband why it would be an extreme hardship for him to relocate outside of the United States to be with you and your infant daughter in South Korea. “Extreme hardship” is beyond that which normally does occur in any visa denial. Family separation and the loss of support, while undoubtedly difficult, are not, in and of themselves an “extreme hardship.”

Extreme hardship is not a term of”fixed and inflexible meaning”; establishing extreme hardship is “dependent upon the facts and circumstances of each case.” Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999). The Board of Immigration Appeals (BIA) in Matter of Cervantes-Gonzalez lists the factors it considers relevant in determining whether an applicant has established extreme hardship. The factors include :

• Presence of a lawful permanent resident or U.S. citizen spouse or parent in this country;
• Qualifying relative’s family ties outside the United States;
• 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;
• 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. ld. at 565-566.

The BIA indicated that these factors relate to the applicant’s “qualifying relative.” ld. at 565-566. In Matter of O-J-0-, 2 1 I&N Dec. 38 1, 383 (BIA 1996), the BIA stated that the factors to consider in determining whether extreme hardship exists “provide a framework for analysis,” and that the “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” It further stated that “the trier of fact must consider the entire range of factors concerning hardship in their totality” and then “determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” (citing Matter of lge, 20 I&N Dec. 880, S82 (BIA 1994 ).

Beyond simply responding to the Request for Evidence, we prepared an entirely new I-601 “extreme hardship” waiver, including a thorough legal and factual discussion of the extreme hardships 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. Our I-601 waiver was subsequently approved in 11 days to the enormous relief of our clients.

In order to overcome the initial opinion of the USCIS, 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).

We made sure every single facet of their case was documented and that the objections raised by the USCIS in their Request for Evidence was fully addressed to maximize the chances of approval.

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 focused on the medical conditions of the U.S. citizen husband and his U.S. citizen mother, and how the U.S. citizen’s husband’s physical and psychological state would worsen in two scenarios: if he remained in the U.S. without his wife; or if he permanently re-located to South Korea to be with his wife, abandoning his ill U.S. citizen mother who has no one else to help care for her.

I also discussed and presented evidence of my client’s rehabilitation, good moral character, and her overall dedication as a wife and mother who is integral to the daily care of her ill U.S. citizen husband and their infant daughter.

The favorable factors in this case included the following:

The U.S. citizen husband suffers from Generalized Anxiety Disorder and Dysthymic Disorder, both major mental disorders recognized by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition
There is a long history of mental illness in the U.S. citizen husband’s family, especially with regard to his mother who has struggled with depression, manic depression, and anxiety most of her life.
The U.S. citizen husband developed two medical conditions, allergic asthma and allergic rhinitis, due to the high levels of air pollution in South Korea.
The U.S. citizen husband’s mother suffers from Stage 3 Lyme’s disease, as well as severe pain caused by fibromyalgia and degenerative disc disease of her spine. She also suffers from hypothyroidism caused by Hashimoto’s disease, a serious autoimmune disease. She has no one else to help take care of her aside from her son.
The U.S. citizen husband’s mother desperately needs to take strong antibiotics to treat the Lyme disease that continues to spread throughout her body, but cannot risk the side effects from the drugs without her son living nearby to aid her should the side effects incapacitate her.
The U.S. citizen husband and his South Korean wife do not earn enough to meet their monthly financial expenses. The U.S. citizen husband is thus unable to afford visits to the U.S. to take care of his mother as her physical and psychological state deteriorates.

As a result of our assistance, this I-601 waiver was approved and the family can now reside together in the U.S.

Client Approval: I-601 Waiver Approved for Crime Involving Moral Turpitude by Immigration Waiver Lawyer Michael Cho

October 8, 2014 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 citizen of the United Kingdom who was subject to a life-time bar from being admitted to the United States for conviction of a crime involving moral turpitude under INA Section 212(a)(2)(A)(i)(I). Our client was previously convicted on five counts of shoplifting and was sentenced to 12 months, conditionally discharged.

Our office was contacted after the British wife and her U.S. citizen husband filed for the I-601 Waiver on their own after the applicant was deemed inadmissible at her consular interview which took place at the U.S. Embassy in London. Their “self-prepared” I-601 Waiver was denied by the USCIS.

In order to overcome their I-601 Waiver denial, 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 I identified the most important factors of the case, I 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.” I also discussed and presented evidence of my client’s rehabilitation, good moral character, and her overall dedication as a wife and mother who was integral to the daily care of her ill U.S. citizen husband, his elderly lawful permanent resident parents, and their infant children who suffered from serious medical conditions.

I made sure every single facet of their case was documented and that the objections raised by the USCIS in their previous denial was fully addressed to maximize the chances of approval.

The reasons cited by the USCIS in its denial of the couple’s first and “self-prepared” I-601 Waiver Application are informative:

The USCIS stated that the applicant’s assertion that her U.S. citizen husband could not operate his thriving U.S. business from the United Kingdom was insufficient. It stated that while the applicant’s husband indicated that it would be: “more difficult and perhaps less profitable to continue to operate his business from outside the U.S., however it was not shown that it would be unprofitable, or that any loss of income would create an extreme hardship. No evidence was presented that he could not employ person(s) in the U.S. as necessary.”

The USCIS found that: “No evidence was presented as to the extent of his financial support for you and his parents.” The U.S. citizen husband lived in the United States with both of his elderly parents who are lawful permanent residents of the U.S. and paid for the household of his wife and two infant children in the United Kingdom.

The USCIS also stated that statements from the applicant’s U.S. citizen husband that he is suffering ‘severe depression’ that is likely to affect his general health, together with a letter from a psychologist indicating that the U.S. citizen husband received supportive help in coping with his psychological depression and anxiety, were insufficient to prove extreme hardship.

Specifically, the USCIS stated that the psychological letter contained no clinical diagnosis or prognosis for stabilization or improvement and did not indicate the severity of his psychological problems.

The USCIS concluded that that while denial of the applicant’s admission would have an adverse impact upon her family, this adverse effect is no greater than one would expect from a prolonged absence of a loved one due to inadmissibility. It stated that the evidence presented by the couple did not demonstrate the U.S. citizen husband’s distress is beyond the emotional/psychological hardship which separation from loved ones typically presents in visa refusals, and did not rise to the level of extreme hardship either singularly or in the aggregate.

To support its reasoning in the original denial of the couple’s I-601 waiver application, the USCIS cited and presented the the following case law:

In other cases of extreme hardship, it has been found that the mere loss of employment, the inability to maintain one’s present standard of living or to pursue a chosen profession, or separation of a family member or cultural readjustment do not constitute extreme hardship. Matter of Pilch, 2 1 I&N Dec. 627 (BIA 1996); Marquez-Medina v INS, 765 F.2d 673 (7th Cir. 1985); Bueno-Carillo v. Landon, 682 F2d 143 (7th Cir. 1982); Chokloikaew v INS, 60 I F.2d 2 16 (5th Cir. 1979), Banks v INS, 594 F.2d 760 (9th Cir. 1979; Matter of Kojoory, 12 I&N Dec. 2 15 (BIA 1967).

To overcome the previous findings of the USCIS, I prepared a 20 page legal memorandum discussing the extreme hardships and other persuasive factors of the case. I presented our own case law that was relevant to the facts and circumstances of our case and supported approval of our waiver application. Additionally, a table of exhibits referenced a variety of objective evidence in support of a showing of “extreme hardship” including:

Proof of U.S. Lawful Permanent Residence of the U.S. Citizen Husband’s parents and the potential loss of this residence if they were forced to re-locate abroad with their son
Medical Records of the U.S. Citizen husband’s father confirming his High Blood Pressure, Hypertension, Hernia Surgery, and upcoming Prostate Surgery
Psychological Evaluation from an experienced clinical psychologist confirming the U.S. Citizen husband’s Dysthymic and Generalized Anxiety Disorders and vital need to remain in the U.S. for regular treatment
Medical Records of the couple’s infant children who were pre-maturely born after only 23 weeks of gestation and suffer from life-threatening conditions including Chronic Lung Disease (bronchopulmonary dysplasia), Patent ductus arteriosus, feeding difficulties, Bacterial sepsis, Hypotension, Respiratory Distress, Pneumothorax, and Isolated Intestinal Perforation.
Proof of financial contributions from the U.S. Citizen Husband for his British Wife and family
Proof that the U.S. Citizen Husband’s business could not be operated from abroad and would suffer closure should he be forced to re-locate to the United Kingdom in order to be with his family
Affidavits of Good Moral Character and Rehabilitation for the applicant by her friends and family

As a result of our efforts, the couple’s I-601 “Extreme Hardship” Waiver Application was approved and this family now lawfully resides together in the United States.

Client Approval: I-601 Prostitution Waiver, I-601 Fraud Waiver, and I-212 Removal Waiver Approved for South Korean Client

September 20, 2014 By Michael Cho Immigration Lawyer 2 Comments

Our office received approval of both the I-212 Waiver (Application for Permission to Reapply for Admission) and I-601 Waiver (Application for Waiver of Excludability) for the South Korean spouse of a U.S. citizen. The South Korean wife was found inadmissible to the United States based on having admitted to previously engaging in prostitution in the United States; having committed fraud/misrepresentation in order to gain an immigration benefit; and having been expeditiously removed from the U.S. while attempting to enter the U.S. with a validly approved K-1 visa.

The U.S. citizen husband contacted my office after his fiancee’s removal from the United States due to our firm’s in-depth experience in securing I-601 “Prostitution Waivers” and I-601 “Fraud/Misrepresentation Waivers” over the past 12 years. This was a particularly challenging case given the numerous grounds of inadmissibility that the South Korean wife was subject to: prostitution, fraud/misrepresentation, and a 5 year bar due to expedited removal from the U.S.

Section 212(h) of the Immigration and Nationality Act provides a discretionary waiver for the following criminal grounds of inadmissibility:

Crimes involving moral turpitude (subparagraph 212(a)(2)(A)(I))
Multiple criminal convictions (212(a)(2)(B))
Prostitution and commercial vice (212(a)(2)(D))
Certain aliens who have asserted immunity from prosecution (212(a)(2)(E))
An offense of simple possession of 30 grams or less of marijuana (212(a)(2)(A)(i)(II))

The Attorney General may waive the grounds of inadmissibility under section 212(a)(2)(D)(i)-(ii) of the Act with regard to prostitution if the alien establishes to the satisfaction of the Attorney General that the alien’s admission would not be contrary to the national welfare, safety, or security of the U.S., and that the alien has been rehabilitated. INA 212(h)(1)(A).

INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who demonstrates that this removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.

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 (applied for using the I-212 Waiver): 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. hardship involving the applicant and others; 8. the need for the applicant’s services in the United States; and 9. whether the applicant has an approved immigrant or non-immigrant visa petition.

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, 22 I&N Dec. 560, 565-66 (BIA 1999), the Board of Immigration Appeals (BIA) provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.

The Board of Immigration Appeals has also made it clear that although hardships may not be extreme when considered abstractly or individually, “relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of O-J-O, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882). The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.”

The Board of Immigration Appeals has also held that hardship factors such as family separation, economic disadvantage, cultural readjustment, et cetera, differ 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).

As an example, the Board of Immigration Appeals has found family separation, a common result of inadmissibility or removal, can also be the most important single hardship factor in considering hardship in the aggregate. See Salcido-Salcido, 138 F.3d at 1293 (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983; but see Matter of Ngai, 19 I&N Dec. at 247 (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).

In support of my client’s I-601 and I-212 waiver applications, I prepared a comprehensive legal brief going over how the facts and circumstances of my clients’ situation met the legal standards used to define “extreme hardship”; “rehabilitation” of the client; and that my client’s admission would “not be contrary to the national welfare, safety, or security of the U.S.”

In other words, we went above and beyond the work that many law firms would engage in by demonstrating that our client met the legal standard of BOTH INA 212(a)(2)(D)(i)-(ii) and INA 212(h)(1)(B). This brief was accompanied by supporting exhibits that provided credible proof of every vital and relevant statement made in the legal brief.

The positive factors in this case included:

Psychological disorders suffered by the U.S. citizen husband including Dysthymic Disorder and Generalized Anxiety Disorder, both of which were being aggravated by the prolonged separation of the couple
Various physical illnesses and conditions suffered by the U.S. citizen husband, including Chronic Hepatitis B that required constant medical monitoring and treatment in the United States
Various physical illnesses and conditions suffered by the U.S. citizen husband’s parents, both of whom relied upon their son to support them financially and manage their medical care
Significant amounts of U.S. educational and mortgage debt of the U.S. citizen, all of which would be in danger of default should the U.S. citizen husband be forced to re-locate to South Korea (a country where he neither spoke the language nor would be qualified to practice his specialized profession)
Evidence of rehabilitation of the South Korean wife including educational courses undertaken and numerous affidavits written in her support

Although extreme hardship is only considered when suffered by the U.S. citizen or lawful permanent resident parent, spouse, son, or daughter of the foreign applicant under INA 212(h)(1)(B), it is my experience that extreme hardship suffered by any close relative of the qualifying relative should be thoroughly discussed. In this case, the extreme hardships to be suffered by the U.S. citizen’s parents in the event of their son’s departure from the U.S., would in turn impact the U.S. citizen himself and aggravate all of the conditions he presently suffers from. This was carefully outlined in detail in our memorandum. This connection can be made when the qualifying relative plays an integral role in taking care of the close relative, either in daily care, financial support, and/or medical oversight.

As a result of the I-601 “prostitution waiver,” I-601 “fraud/misrepresentation waiver,” and I-212 “removal/deportation waiver” prepared and submitted by my office, the I-601 and I-212 waiver applications were all approved. The couple now happily reside together inside the U.S. The South Korean wife holds U.S. permanent residence and will qualify to apply for U.S. citizenship within three years.

I-601 Waiver Approved by AAO for Fraud/Misrepresentation and Crime Involving Moral Turpitude

April 20, 2014 By Michael Cho Immigration Lawyer 2 Comments

I-601 Waiver Legal News

The applicant is a native and citizen of Pakistan who was found inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of a crime involving moral turpitude. This was due to a conviction on October 6, 1995 for P.L. 215.15.01, or Intimidating a Victim or Witness in the Third Degree.

The applicant was also 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. The applicant submitted false information on an Application for Asylum and Withholding of Removal (Form 1-589).

The applicant sought a waiver of inadmissibility under section 212(h) of the Act and section 212(i) of the Act in order to reside in the United States with his U.S. citizen spouse.

Section 212(a)(2)(A) of the 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.

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.

The favorable factors that contributed to approval of this I-601 “extreme hardship” waiver include the following:

The applicant’s wife has medical conditions including depression, recurring pain that exacerbates her depression, and anxiety. She is monitored biweekly to ensure that her condition does not become life-threatening.
Should the wife’s condition become unbearable she will undergo a hysterectomy.
The wife’s medical conditions are complicated by her trying to become pregnant. She is undergoing fertility treatment, and the applicant’s presence is necessary for continued support.
Due to health problems the applicant’s wife misses work at times. She depends on the applicant’s income in addition to her own.
If the wife remains in the United States without the applicant she would be unable to support herself entirely and would be unable to visit the applicant in Pakistan.
Affidavit from the wife states that the applicant is her strength and support and that time spent with him is the happiest of her life. She states that she is trying to have a child, but suffers severe menstrual pain and it is difficult to conceive. She states that she was diagnosed with major depressive disorder, anxiety, and hypertension due mainly to the applicant’s immigration problem and her inability to get pregnant, and that she has regularly received psychiatric care for more than two years, taking limited medication because of trying to get pregnant.
A letter from the spouse’s medical doctor states that the wife has a history of adenomyosis, hypothyroidism and depression, with pain and vaginal bleeding that impact her everyday life by causing her to avoid activities. The letter further states that there is a possibility of a hysterectomy, calling it a risky and invasive surgery, and that she is undergoing fertility treatment.
A 2011 psychological evaluation notes the wife’s medical history and states that being unable to conceive causes anxiety. The evaluation states that the spouse is diagnosed with major depressive disorder and it further states that the applicant’s wife could benefit with a closely monitored trial of antidepressants, but that she needs family support.
A March 2013 letter from a medical doctor states he has treated the applicant’s wife since 1998 and that she is taking prescribed psychotropic medication.
The family members of the applicant’s wife all live in the United States. The family is extremely close and has strong bonds, and she visits with her family often.
The applicant’s wife came to the United States more than 20 years ago and is assimilated in manner and ideology. She became a U.S. citizen in 2004
Country conditions information indicates that Pakistan is dangerous, becoming increasingly radical and violent, and that expatriates are subjected to increasing scrutiny. Anti-Americanism is on the rise.
The applicant’s wife has an established job as an accountant in the United States, but a Muslim female in Pakistan is rarely given the opportunity for a career. It is unlikely the applicant’s spouse would find a job in Pakistan to support herself because of discrimination against women in the work force.
The applicant’s wife states that she fears women are a prime target by Islamic fundamentalists in Pakistan and that she does not follow traditional rules for women.
Medical treatment is unavailable or unaffordable in Pakistan, so the financial impact of living there would be life-threatening for the applicant’s spouse. The applicant’s wife asserts that mental health issues are largely ignored in Pakistan.

Based on the above, the AAO found that the applicant’s qualifying spouse will suffer extreme hardship as a consequence of being separated from the applicant, in particular due to her medical and emotional condition. The AAO also found that the cumulative effect of the qualifying spouse’s family ties and length of residence in the United States, her health and safety concerns, and loss of employment if she were to relocate, rises to the level of extreme if she returned to Pakistan to reside with her husband.

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, upon a balancing of the positives and negatives of the case, favorable discretion was exercised and the I-601 waiver was approved.

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

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

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

The full update from the USCIS is available below:

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

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

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

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

Client Approval: I-601 Waiver under 212(h) Approved for Client With Multiple CIMT and Controlled Substance Conviction

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

Our office recently received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a client who was subject to a lifetime ban from being admitted to the United States pursuant to INA 212(a)(2)(A)(i)(I) and INA 212(a)(2)(A)(i)(II). Our client has multiple criminal convictions in her background including a conviction for a crime involving moral turpitude which occurred in 1998 and a controlled substance conviction (possession of a cannabis bong) which occurred in 1997. Our client is married to a U.S. lawful permanent resident husband with an approved I-130 immediate relative petition filed on her behalf.

She contacted me after filing the I-601 waiver on her own and receiving a notice from the USCIS stating that the waiver package she filed did not contain sufficient evidence that a favorable exercise of discretion was warranted in her case.

Legal Requirements of the § 212(h) Waiver

Section 212(h) of the Immigration and Nationality Act provides a discretionary waiver for the following criminal grounds of inadmissibility:

Crimes involving moral turpitude (subparagraph 212(a)(2)(A)(I))
Multiple criminal convictions (212(a)(2)(B))
Prostitution and commercial vice (212(a)(2)(D))
Certain aliens who have asserted immunity from prosecution (212(a)(2)(E))
An offense of simple possession of 30 grams or less of marijuana (212(a)(2)(A)(i)(II))

INA 212(h)(1)(A) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), and (E) of the Act may be waived in the case of an alien who demonstrates to the satisfaction of the Attorney General that:

the activities for which she is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of status;
the admission would not be contrary to the national welfare, safety, or security of the U.S.; and
the alien has been rehabilitated;

INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who:

has a parent, spouse, son, or daughter who is a U.S. citizen or lawful permanent resident of the United States; and
the parent, spouse, son, or daughter would suffer “extreme hardship” on account of the alien’s ineligibility to immigrate

Waiver applicants must also show that their application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in his or her case.

”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.

How I Obtained Approval of the I-601 Waiver for My Client Who Had Multiple Convictions for Crimes Involving Moral Turpitude and a Controlled Substance Conviction

In support of my client’s I-601 waiver application, I prepared a comprehensive 21-page legal brief going over how the facts and circumstances of her situation met the legal standards for both INA 212(h)(1)(A) and INA 212(h)(1)(B) including citations of existing case law favorable to my client’s case.

I thoroughly outlined the the medical, financial, and psychological hardships of the case and presented persuasive evidence of my client’s rehabilitation and good moral character. Not only did I show that my client was rehabilitated and her admission not contrary to the national welfare, safety, or security of the U.S., I also demonstrated that her overall dedication as a wife and mother was integral to the daily care of her ill U.S. citizen husband (who suffers from coronary heart disease and psychological disorders) and their three children (one of whom suffers from Attention Deficit Hyperactivity Disorder). I also showed that the welfare of her husband and children depends on them remaining inside the United States together with their wife and mother.

An extensive table of exhibits also listed a variety of evidence in support of a showing of “extreme hardship” and rehabilitation.

As a result of our efforts, our client was approved for the 601 waiver within 4 weeks of submission and subsequently, received her lawful permanent residence to join her family in the United States.

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

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

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

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

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

The USCIS guidance referenced below is addressed to adjudicating officers.

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

Physical or Mental Disorders with Associated Harmful Behavior

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

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

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

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