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I-601 Extreme Hardship Waiver Approved

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I601 Waiver

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a Mexican client who was subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B).  She was also subject to the fraud/misrepresentation ground of inadmissibility under INA Section 212(a)(6)(C)(i) due to the use of a false document to enter the United States.

I prepared and filed three separate I-130 immediate relative petitions and ultimately received approval for three immigrant visas: for the Mexican wife who required the I-601 waiver, and her two Mexican children who did not require unlawful presence waivers since they were both under the age of 18.  Any period of time spent unlawfully in the U.S. while under the age of 18 does not count toward calculating unlawful presence under INA Section 212(a)(9)(B) [9 FAM 40.92 N 4.1].

An I-601 Application for Waiver of Grounds of Inadmissibility requires a showing that the applicant’s U.S. citizen spouse or parent would suffer “extreme hardship” if the applicant is refused admission into the United States.  A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

”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 her I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to define “extreme hardship.”  I also discussed and presented evidence of her rehabilitation, good moral character, and overall dedication as a wife and mother who was integral to the daily care of her ill U.S. citizen husband (and his elderly mother).  Since this was her second marriage to a U.S. citizen, I presented compelling evidence that both marriages were genuine when entered into as well as the reasons why her previous marriage ended in divorce.  A table of exhibits also listed a variety of evidence in support of a showing of “extreme hardship” including:

  • Letter and medical records from the physician of the U.S. citizen husband’s mother, confirming her diabetes, hip surgery, frequent infections, low blood sugar, and overall precarious health
  • Affidavits attesting to the U.S. citizen husband’s daily care of his elderly mother with the assistance of his Mexican wife, including hand-feeding her meals on a regular basis
  • U.S. citizen husband being evaluated as 100% disabled for post-traumatic stress disorder by the Dept. of Veterans Affairs resulting from his tours of duty during the Vietnam War
  • Letter from a psychiatrist confirming long-term treatment of the U.S. citizen husband for post-traumatic stress disorder
  •  War decorations awarded to the U.S. citizen husband during his service during the Vietnam War

As a result of our efforts, our client was approved for the I-601 and subsequently, received her lawful permanent residence together with her two children.

I-601 Waiver Approved by I-601 Attorney Michael Cho

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I601 Waiver

Our office received approval of the I-601 waiver on behalf of the Brazilian wife of a U.S. citizen.   She had previously entered the U.S. as the K-1 fiancee of her U.S. citizen husband.  However, the couple attempted to handle her adjustment of status themselves, leading  to mistakes in the filing of the application.  She then departed the U.S. after exceeding her authorized period of stay by over one year.  Our office was contacted after she was deemed inadmissible to the U.S. based on Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, for having been unlawfully present in the United States for more than one year and seeking readmission within 10 years of her last departure from the United States.

INA Section 212(a)(9)(B)(v) provides that a waiver, under INA Section 212(a)(9)(B)(i)(II), is applicable solely where the applicant establishes extreme hardship to her U.S. citizen or lawfully resident spouse or parent.  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 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to define “extreme hardship.”  This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief.

The positive factors in this case included:

  • The U.S. citizen husband suffered from high blood pressure, which was shown to be a hereditary disease influenced by lifestyle factors.  He was also diagnosed with Clinical Depression, with a rapidly deteriorating condition as a result of a miscarriage suffered by his wife during the immigration process.  
  • The U.S. citizen husband’s mother recently suffered two heart attacks and was now dependent on her son to take care of her, hand-feed her meals, and provide for her financially.  He could not move to Brazil without abandoning his U.S. citizen mother and putting her health at risk.
  • The U.S. citizen husband received medical care for his high blood pressure and clinical depression through the insurance provided by his U.S. employer.  We demonstrated that his work performance had suffered noticeably due to the stress and emotional toll caused by the separation from his wife.

As a result of the I-601 waiver prepared and submitted by our office, she has received her lawful permanent resident status and the couple is now re-united inside the United States.

I-601 Waiver Approval

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I601 Waiver Approval

Our office received approval of an I-601 waiver filed on behalf of a Mexican wife and her U.S. citizen husband.  Our client entered the United States without inspection over 12 years ago with her family and has lived in the U.S. since then.   She was deemed inadmissible to the U.S. based on Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, for having been unlawfully present in the United States for more than one year and seeking readmission within 10 years of her last departure from the United States.

This case was decided before the current I-601A provisional waiver came into effect.  As a result, we first obtained approval of the I-130 Petition for Alien Relative.  Our client then traveled to the U.S. consulate in Ciudad Juarez to attend her consular interview where she submitted the I-601 waiver package I prepared on her behalf.  In support of her I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to define “extreme hardship.”  This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief.

INA Section 212(a)(9)(B)(v) provides that a waiver, under INA Section 212(a)(9)(B)(i)(II), is applicable solely where the applicant establishes extreme hardship to her U.S. citizen or lawfully resident spouse or parent.  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.

This case was particularly challenging because our client and her husband had no children.  The U.S. citizen husband also had no medical problems of note, and his U.S. citizen parents were in relatively good health.  However, the U.S. citizen husband was in the U.S. Navy serving on board a guided missile cruiser.  Among a variety of extreme hardships discussed, we showed that the extreme psychological hardship he would suffer upon separation from his wife would seriously impact his ability to perform his critical military duties.  Alternatively, moving to Mexico to be with his wife would not be possible since that would be considered desertion and lead to a court marshal.  This case was approved and our client now resides legally inside the United States as a lawful permanent resident.

I-601 Waiver Approved by Waiver Attorney Michael Cho

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I-601 Waiver Approved

We received approval of a client’s immigrant visa petition and I-601 Application for Waiver of Grounds of Inadmissibility.  Our office  prepared and filed the I-130 petition, secured its approval, then put together a comprehensive I-601 waiver package that was submitted to the USCIS for adjudication.  The I-601 waiver was approved and our client obtained his immigrant visa at the U.S. consulate in Ciudad Juarez before returning to the U.S. as a lawful permanent resident.

Our client was a native of Mexico who entered the U.S. without inspection over 11 years ago.  He subsequently married a U.S. citizen and they had a daughter together.  He required the I-601 Application of Waiver of Grounds of Inadmissibility due to his unlawful presence of over 1 year inside the United States, which made him subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B).

An I-601 Application for Waiver of Grounds of Inadmissibility requires a showing that the applicant’s U.S. citizen spouse or parent would suffer “extreme hardship” if the applicant is refused admission into the United States.  “Extreme hardship” has a special meaning under U.S. immigration law.  The factors considered relevant in determining extreme hardship include:

  • Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.
  • Financial considerations: future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children; cost of caring for family members (i.e., elderly and infirm parents).
  • Education: loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time in grade; availability of special requirements, such as training programs or internships in specific fields.
  • Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
  • Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
  • Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

Spouses must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.

In support of his I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of his situation met the legal standards used to define “extreme hardship.”  This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief.

Factors in the favor of our client were the following:

  • Our client had no criminal record and was a law-abiding individual his entire life except for the immigration mistake he made to enter and live illegally inside the U.S.
  • His U.S. citizen wife had suffered from severe kidney and bladder infections her entire life.  We obtained a letter from her physician confirming her chronic condition and recommending regular check-ups and treatment inside the United States
  • Their daughter had been diagnosed with jaundice.  We obtained a letter from her physician confirming her illness and recommending regular check-ups inside the United States.
  • We provided a report of the Mexican health system and demonstrated that the U.S. citizen wife and daughter would not be able to receive reliable and adequate medical care for their conditions in rural Mexico where the Mexican husband was from.
  • The U.S. citizen wife and child received medical care in the United States through health insurance provided by the Mexican husband’s employment in the United States.  Without his presence and employment in the U.S., they would lose their medical coverage.  On the other hand, moving to Mexico would also mean no longer being able to obtain medical treatments since she could not afford private health insurance given their pre-existing conditions.
  • Our client was a devoted husband and father who took care of his U.S. citizen wife and child on a daily basis and worked hard to pay for their rent, food, and other living expenses.  They would suffer financial hardship without his presence given their health problems and the U.S. citizen wife serving as the primary care-giver for their young daughter.
  • We submitted a psychological report which diagnosed the U.S. citizen wife with Clinical Anxiety Disorder.  We showed the interrelationship between psychological and physical disease, and presented evidence to show that her condition would worsen without the presence of her husband together with her in the United States.

As a result of the I-601 waiver approval, this family now lives inside the United States as lawful, contributing citizens of the United States.

Defining Extreme Hardship in I-601 Waiver Cases

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Michael Cho Immigration Lawyer

According to Section 212(a)(9)(B) of the Immigration & Nationality Act, an alien unlawfully present in the United States for one year or more who again seeks admission to the U.S. within 10 years of the date of alien’s departure or removal from the U.S. is inadmissible.

However, Section 212(a)(9)(B)(v) of the Act provides for a waiver of section 212(a)(9)(B)(i) inadmissibility if the inadmissible alien can establish that refusal of admission would result in extreme hardship to the U.S. citizen or lawfully resident spouse or parent of the alien.  This is also referred to as the I-601 waiver, or the I-601 “extreme hardship” waiver.

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 family ties outside the United States;
  • the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries;
  • the financial impact of departure from this country;
  • and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate

The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive.

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 “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 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 Kau and Aiei Tsui Un, 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. 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).

Therefore, when adjudicating I-601 waivers, it is the totality of the circumstances that will determine whether denial of admission would result in extreme hardship to a qualifying relative.

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