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I-212 and I-601 Waivers Approved for Ukrainian by AAO

August 28, 2013 By Michael Cho Immigration Lawyer Leave a Comment

I-601 Waiver and I-212 Waiver Legal News

The applicant in this case is a native of Russia and a citizen of Ukraine, who was found to be inadmissible to the United States under sections 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for procuring a visa by willfully misrepresenting a material fact, and pursuant to section 212(a)(9)(A)(i) of the Act, 8 U.S.C. § 1182(a)(9)(A)(i), due to her expedited removal from the United States.

The applicant applied for a waiver of inadmissibility (also known as the I-601 or “extreme hardship” waiver) and permission to reapply for admission (also referred to as the I-212 waiver) in order to reside in the United States with her U.S. citizen husband.

The take-away from this case is that when the I-601 and I-212 waivers are filed together, approval of the I-601 waiver upon finding of extreme hardship and exercise of favorable discretion, also means approval of the I-212 waiver. This means that waiver applicants applying for the I-601 and I-212 waivers together, should focus most of their efforts on proving extreme hardship to the qualifying relative as well as on demonstrating why a favorable exercise of discretion should be granted.

Section 212(a)(9)(A) provides, in pertinent part:

(i) Arriving Aliens. -Any alien who has been ordered removed under section 235(b)(l) or at the end of proceedings under section 240 initiated upon the alien’s arrival in the United States and who again seeks admission within 5 years of the date of such removal … is inadmissible.

(ii) Other Aliens. -Any alien not described in clause (i) who-

(I) has been ordered removed under section 240 or any other provision of law, or

(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien’s departure or removal … is inadmissible.

(iii) Exception. -Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien’s reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General [now, Secretary, Department of Homeland Security] has consented to the alien’s reapplying for admission.

Section 212(a)(6)(C)(i) of the Act provides, in pertinent part:

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)(1) of the Act provides:

The [Secretary] may, in the discretion of the [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 [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 cited by the AAO in finding extreme hardship to the U.S. citizen spouse are the following:

The U.S. citizen husband is 60-years old.
He has a number of medical conditions for which he receives regular treatment and monitoring including rheumatoid arthritis (generalized inflammation of the joints), osteoarthritis (localized inflammation due to wear and tear) of the hand/wrist, as well as hepatitis C and a latent form of tuberculosis (TB) infection.
While he has maintained an active lifestyle, the U.S. citizen husband has suffered painful flare-ups while overseas with his wife.
The U.S. citizen husband’s chronic infections are actively monitored by his physician with an eye toward offering his patient access to new therapies.
The Ukrainian wife’s presence in the U.S. spares the U.S. citizen husband from overseas visits to ease the pain of separation. This thereby minimizes the chances that painful episodes experienced during visits to Ukraine and Mexico will reoccur.
The State Department advises that U.S. citizens who are ill or infirm not travel to the Ukraine, as “those with existing health problems may be at risk due to inadequate medical facilities.”
The State Department substantiates the U.S. citizen husband’s concerns for his wife’s personal safety and security by noting that street crime is a serious problem, corruption pervasive among the police, and emergency services far below western standards.
The U.S. citizen husband was married for 34 years before marrying the applicant in 2010. He observes that he does not do well alone. A psychotherapist concluded, based on targeted questionnaires and symptoms including sadness, crying, insomnia, loss of appetite/weight, headaches, and problems concentrating, that the U.S. citizen husband suffers from major depression stemming from prolonged separation from his Ukrainian wife.
The psychological report confirms that the U.S. citizen husband receives little relief from anti-depressant medication and sleep aids prescribed by his doctor, and supports the therapist’s conclusion that his psychological distress will continue to worsen in his wife’s absence.
The U.S. citizen husband’s second wife, with whom he shares custody of their six year old son, has conditioned granting full custody upon the Ukrainian wife’s presence as a homemaker to the household. The U.S. citizen husband is eager to have his son live with him and his wife in a family unit.
The U.S. citizen husband has many ongoing expenses, including high fixed costs for his business; tuition and travel costs for his young son currently residing in Kentucky with his mother and attending school; travel expenses to visit with his wife abroad; and costs of maintaining regular communications with his wife to ease the pain of separation.
The U.S. citizen husband is struggling to maintain a home in Alaska and a Kiev rental apartment for his wife, while also paying for significant expenses associated with supporting his son in Kentucky. The expense of maintaining two households have strained his financial resources and forced him to access retirement accounts to make ends meet.

The factors cited by the AAO in exercising favorable discretion in this matter are:

The extreme hardships the applicant’s husband would face if the applicant were to reside in Ukraine, regardless of whether he accompanied the applicant or remained in the U.S.
The applicant’s lack of any criminal record
Supportive statements and passage of nearly four years since the applicant’s misrepresentations
Her ready admission to and contrition about her misrepresentations.

As with all cases, a thorough overview of the case law, an in-depth and persuasive discussion of the relevant factors, along with a comprehensive array of supporting documents to prove the statements made, are required for approval of these types of applications.

212 Waiver Legal News: AAO Approves I-212 Waiver and I-601 Extreme Hardship Waiver

August 21, 2013 By Michael Cho Immigration Lawyer 1 Comment

The applicant is a citizen of Albania who entered the U.S. on a false Greek passport. After denial of his applications for asylum and withholding of removal, he was removed from the United States. He was deemed inadmissible to the United States based on having used fraudulent documents and his unlawful presence of more than one year under Sections 212(a)(6)(C)(i) and 212(a)(9)(B)(i)(II) of the Immigration & Nationality Act. He also required consent to reapply for admission to the United States until 10 years have passed due to having been removed from the United States.

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

Section 212(i)(I) of the INA provides that:

Section 212(a)(9)(B) of the INA provides that:

(i) In general – Any alien (other than an alien lawfully admitted for permanent residence) who –

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.

(v) Waiver – The Attorney General [now the Secretary of Homeland Security (Secretary) has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General (Secretary) that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien…

The applicant in this case has three qualifying relatives for the purposes the I-601 Extreme Hardship waiver: his U.S. citizen spouse, his U.S. citizen mother, and his lawful permanent resident father. He also required approval of the I-212 Consent to Reapply for Admission to the United States based his removal from the U.S.

This case contains so many factors deemed persuasive by the USCIS that I decided to list all them all below. When evaluating the chances of your own extreme hardship waiver case, you should look to see whether the hardships and favorable factors found in this case can also be found in your own situation. It is important to note that psychological and medical evaluations appear to have been done at multiple points in time. Each evaluation showed a deterioration in the psychological and medical condition of the qualifying relative, thus adding credence to the claim that they are suffering extreme hardship in the absence of the applicant.

Please also keep in mind that each factor must be discussed in two scenarios: if the applicant and the qualifying relative are separated; or if the qualifying relative leaves the United States and re-locates to the applicant’s home country. Additionally, each factor must be supported by reliable documentary evidence. I routinely prepare I-601 and I-212 waiver letters that number at least 10-15 pages with voluminous evidence organized as exhibits to support the claims made in the extreme hardship waiver statement.

The favorable factors in this case are as follows:

Both parents of the applicant has type 2 diabetes and high cholesterol.
The applicant’s 63 year old father is hypertensive and has had 2 strokes.
The applicant’s 57 year old mother is being monitored for coronary heart disease and possible breast cancer, and has been diagnosed with major depression and anxiety as a result of separation from her son and related need to sell her restaurant.
The applicant, before his deportation, took his parents to their physicians, made sure they took their medication, and watched over them.
The applicant’s U.S. citizen is also intimately involved facilitating medical care for her in-laws.
The applicant’s U.S. citizen wife has been diagnosed with major depression, paranoia, and anxiety and suffers from insomnia, anxiety, and impaired daily functioning. She has been prescribed medications. Her substantial fears about separation from her daughter causes her to spend all day in-doors with her child, which has been described as unhealthy by their doctor.
The applicant’s father was laid off from his work, causing him and his wife to lose their health insurance coverage.
The applicant’s mother was forced to sell the family restaurant, largely because it was not possible to continue operating it without the applicant’s help .
The applicant’s wife spends 10-12 hours a day running a business owned by the applicant. This business is suffering due to the applicant’s absence from the United States. It is the sole source of the applicant’s wife income, and she has been forced to move in with her in-laws because she doesn’t have money to afford her own place.
The applicant helped his mother and father make payments on their home mortgage. With the sale of the applicant’s mother’s restaurant and his own business suffering in his absence, there is not enough income to meet the monthly mortgage payments. As a result, his mother, father, wife and child are at risk of losing their home.
The applicant’s father sold everything when he left Albania and has nothing left there. He is also a lawful permanent resident and would lose his LPR status if he re-locates to Albania to be with the applicant.
The applicant’s wife’s parents both live in the United States.
The Dept. of State states that healthcare in Albania falls short of U.S. standards, and acknowledges that emergency and major medical care requiring surgery outside Tirana (the capital of Albania) is particularly problematic.
When the applicant’s wife and their infant daughter visited Albania, the daughter fell sick with bronchial pneumonia.
The Dept. of State states that organized crime, street crime, and violence in Albania are a significant problem and increased in recent years.
There are limited work opportunities for women in Albania. Additionally, the applicant’s parent’s old age and declining health makes their employment prospect also limited.
The applicant has no criminal record and has resided in the United States for over 12 years.
The applicant has worked, paid his taxes, and and creating jobs for U.S. workers during his stay inside the United States.
The applicant has resided for over 2 1/2 years abroad after being deported from the U.S.

601 Waiver Legal News: Balancing of the Equities and Adverse Matters in I-601 Waivers

August 18, 2013 By Michael Cho Immigration Lawyer Leave a Comment

This case demonstrates the importance of balancing the need for conciseness in a I-601 waiver case (you do not want to overwhelm the USCIS officer with too much documentation) with presenting as many favorable factors from your lives as possible.

The applicant in this case is a citizen of Mexico who had an approved I-130 Petition for Immediate Relative filed by her lawful permanent resident husband and son. She previously obtained a lawful permanent residence card using the identity of her sister-in-law and procured admission into the U.S. on six separate occasions.

She was deemed inadmissible to the U.S. based on Section 212(a)(6)(C) of the Immigration and Nationality Act which provides, in relevant part:

(i) 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.

She applied for the I-601 waiver pursuant to Section 212(i) of the INA which provides, in relevant part:

(1) The Attorney General [now the Secretary of Homeland Security (Secretary)] may, in the discretion of the [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 [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 AAO found that the lawful permanent spouse of the applicant in this case would suffer extreme hardship. It is notable that the AAO found extreme hardship despite the LPR spouse having no particular medical condition of his own aside from being elderly.

The AAO also cited Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996) in finding that extreme hardship is but one favorable discretionary factor to be considered. The AAO went on to state:

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. 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.

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)

Thus, in all I-601 waiver cases, the record as a whole is reviewed and a “balancing of the equities and adverse matters” is conducted to determine whether discretion should be favorably exercised.

In this case, the applicant and her LPR husband have been married for 33 years. The LPR husband has always cared for the applicant, who suffers from several medical conditions that have required surgeries and on-going treatment. These conditions include Basal Cell Carcinoma, Rectal Carcinoid Tumors, Seizure Disorder, Dyslipidemia, Hypothyroidism, and has undergone reconstruction and flap replacement of her right cheek. She is permanently unable to drive due to epilepsy.

The lawful permanent resident husband was the sole financial provider for the family. He demonstrated that he could not afford to pay for the applicant’s medical care in Mexico nor the travel costs to take care of her there. He also feared for his wife’s well-being given the lack of medical care in remote areas of Mexico as well as high-rates of violence throughout the country. He could not live in Mexico given his extensive family ties in the U.S. as well as his advanced age.

The applicant helps care for her grandchildren while her daughter works. Her daughter would have to quit her job without the applicant’s babysitting since she cannot afford child care. The applicant has numerous family ties to the U.S., has always paid taxes, and has no criminal record.

Given the situation described above, and despite the LPR husband having no notable medical condition of his own, extreme hardship was still found and the I-601 waiver approved.

601 Waiver Legal News: AAO Overturns USCIS Decision on 601 Waiver

August 15, 2013 By Michael Cho Immigration Lawyer Leave a Comment

I personally try to review every 601, 601A, and 212 waiver case that is made available, as they provide a valuable insight into the discretionary standards applied in deciding immigration waiver applications.

This case is instructive in the persuasive importance of medical hardship when waiver cases are adjudicated. It involves a citizen of the Philippines who was found inadmissible to the U.S. under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act. The applicant is the spouse of a U.S. citizen who previously entered the United States using a fraudulent passport.

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.

The applicant applied for a 601 waiver pursuant to Section 212(i) of the INA which provides: (1) The [Secretary] may, in the discretion of the [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 [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 USCIS Field Director concluded that the applicant had failed to demonstrate extreme hardship to her qualifying spouse and denied the application. The AAO overturned the decision on appeal and granted the waiver.

The AAO stated that 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).

The AAO also cited Matter of Cervantes-Gonzalez, in which the Board of Immigration Appeals (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 U.S. 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 following factors in this case were deemed persuasive in granting the 601 waiver:

The applicant suffered from reproductive health issues since 2000
The applicant has resided for a long period of time in the U.S. and has a husband and family members who are U.S. citizens
A letter from her doctor and medical records showed that she has been attempting to have a child with her U.S. citizen husband through in vitro fertilization since 2006.
The letter from her doctor stated that she must avoid stress and remain in the U.S. for fertility treatments if she wishes to ever have a child in the future.
She has undergone surgeries due to her reproductive health issue, and takes medication for depression and anxiety.
Bank statements, mortgage payments, and utility bills showed that the U.S. citizen husband could not afford fertility treatments for his wife if she were forced to live in the Philippines.
They demonstrated that the applicant moving to the Philippines would prevent the couple from having the child they so desperately wanted, which would in turn cause tremendous emotional stress on the U.S. citizen husband
They demonstrated that the U.S. citizen husband could not afford to make mortgage payments on their family home or afford his other monthly payments without his wife’s financial contributions.
The U.S. citizen husband has significant family ties to the United States, including parents, sisters, nieces, aunts, and uncles.
The U.S. citizen husband has enjoyed long-term employment in the U.S.
The U.S. citizen husband provided medical documentation showing a severe allergic reaction he suffered during his last visit to the Philippines due to pollution

I-601A Provisional Waiver

August 10, 2013 By Michael Cho Immigration Lawyer Leave a Comment

None of my clients have yet been denied on the I-601A Provisional Waiver Applications that I prepared and filed on their behalf. However, the current trend based on I-601A provisional waiver applications filed by others nationally appears to be that the USCIS is denying I-601A waivers when it has “reason to believe” that the applicant may be found inadmissible by a Department of State or consular officer at the time of his/her immigrant visa interview for a reason other than unlawful presence.

The American Immigration Lawyers Association, of which I am a member, is currently working with the USCIS in an attempt to have I-601A provisional waivers adjudicated in a more flexible and meaningful manner.

Unfortunately, the USCIS seems to be denying I-601A provisional waivers in two common situations: when applicants have had encounters with criminal law enforcement authorities in the past that do NOT constitute grounds of inadmissibility under INA Section 212; and when applicants allegedly gave false names, biographic data, or other information to the INS or DHS authorities, where such false information was NOT given in an effort to procure a visa, other documentation, or admission in violation of INA Section 212(a)(6)(C).

My current recommendation as of 08/10/2013 is to be absolutely sure NONE of the situations described below apply to you before you submit your I-601A provisional waiver application. This means you never had any encounter whatsoever with criminal law enforcement authorities and never submitted any type of false information to the INS or DHS in the past. Should the USCIS adopt the more flexible and meaningful approach advocated by AILA, this blog and my clients will be updated.

Denials Based on Criminal Acts That Do Not Form the Basis for an Inadmissibility Determination

Numerous reports indicate that USCIS is relying on the “reason to believe” standard to deny applications involving any prior criminal issue, no matter how minor or how long ago the incident took place. AILA has also received reports of denials where the only offense involved a traffic citation or traffic violation.

Denials Based on Alleged Misrepresentations That Do Not Form the Basis for an Inadmissibility Determination

AILA has also received a number of examples of I-601A waiver applications that were denied based on an allegation that the applicant provided a false name or date of birth when apprehended at the border for attempting to enter without inspection. Though some of these denials contain limited information specific to the alleged incident (year, border station), most of them are formulaic, and none acknowledge evidence that might have been submitted to explain why the incident does not render the person inadmissible.

USCIS Needlessly Denies Provisional Waiver Applications Where a Meaningful Review of the Evidence Would Reveal No Inadmissibility Concerns Other Than Unlawful Presence

Driving Under the Influence (DUI)

It is well-established that a simple DUI, without more, is not a crime involving moral turpitude and therefore, does not render a person inadmissible. See Matter of Lopez-Meza, 22 I&N Dec. 1188, 1194 (BIA 1999); Murillo-Salmeron v. INS, 327 F.3d 898 (9th Cir. 2003). This position has been acknowledged and cited by the USCIS Administrative Appeals Office in several non-precedent decisions. Moreover, a conviction for an aggravated DUI (based on multiple simple DUIs) under a statute that does not require a culpable mental state is also not a crime involving moral turpitude. Matter of Torres Varela, 23 I&N Dec. 78, 82-86 (BIA 2001).

AILA has received numerous examples of provisional waiver denials where the only incident from the applicant’s past involved a simple DUI conviction. In many of these cases, the applicant acknowledged the incident on the I-601A form and submitted the record of conviction which revealed no aggravating factors. In at least one case, the conviction was ultimately dismissed and in most cases, the DUI occurred more than five years ago. However, despite well-documented efforts demonstrating that the conviction would not render the applicant inadmissible, these provisional waiver applications were denied.

The Petty Offense Exception

AILA has also received numerous denials involving minor offenses that would clearly fall under the “petty offense exception” for a single crime involving moral turpitude. An offense falls under the petty offense exception if (1) the crime was committed when the alien was under age 18, and the crime was committed (and the alien was released from confinement) more than five years before the date of the application; or (2) the maximum penalty possible for the crime did not exceed one year of imprisonment and if convicted, the alien was not sentenced to more than 6 months in prison.

Traffic Violations

Question 29 on Form I-601A seems to indicate that traffic violations are not considered when evaluating eligibility for a provisional waiver. Yet, AILA has received troubling reports of cases that have been denied where the only offense involved appears to be one or more traffic violations. Even if such violations could be considered relevant, they will almost always qualify for the petty offense exception.

Allegations of Providing a False Name or Date of Birth When Apprehended After Attempting to Enter without Inspection

AILA has also received many reports of denials based on a “reason to believe” the applicant is inadmissible under INA §212(a)(6)(C) for allegedly providing a false name or date of birth when the applicant was apprehended at the border for attempting to enter without inspection. While providing a false name in conjunction with the formal inspection and admission process may certainly raise concerns regarding admissibility (for example, presenting a false passport at a port of entry), in most circumstances, simply providing a false name after an arrest for attempting to enter without inspection does not support a finding of inadmissibility under INA §212(a)(6)(C)(i) because it is not made in an attempt to “procure … a visa, other documentation, or admission into the United States” or other benefit under the INA. Moreover, the Department of State takes the approach that misrepresentations regarding identity are material only if the alien is “inadmissible on the true facts or the misrepresentation tends to cut off a relevant line of inquiry which might have led to a proper finding of ineligibility.” Providing a false name or date of birth after arrest (in a “catch and release” or “voluntary return” situation) when it has already been determined that the individual is inadmissible is not, by definition “material.”

I-601 Extreme Hardship Waiver Approved

August 10, 2013 By Michael Cho Immigration Lawyer 1 Comment

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-601A Provisional Waiver Update

July 15, 2013 By Michael Cho Immigration Lawyer Leave a Comment

The American Immigration Lawyers Association (of which I am a member) reports that I-601A Provisional Waiver applicants are receiving denials based on the grounds that the USCIS has “reason to believe” the applicant may be inadmissible on grounds other than unlawful presence.

There are reports that denials are being issued despite evidence submitted to show that the arrest did not result in a criminal conviction, or that the incident was not conduct that would render an alien inadmissible, or that the crime for which the alien was convicted was not an inadmissible offense.

Additionally, the USCIS appears to be denying I-601A Provisional Waivers when the applicant previously provided a false name, date of birth, or other information at the time of apprehension for entry without inspection. The USCIS is issuing these denials based on the grounds that there is “reason to believe” that the alien knowingly and willfully provided false or materially misleading information while applying for an immigration benefit, even though the false or misleading information was not material or given in connection with a benefit application or application for admission.

It is thus extremely important that any arrest, criminal conviction, or immigrant apprehension be analyzed in detail before application for the I-601A Provisional Waiver.

The American Immigration Lawyers Association is currently working with the USCIS to clarify these adjudication standards and hopefully, obtain greater leeway on the approval of I-601A Provisional Waivers in the future.

I-601 Waiver Approved by Waiver Lawyer Michael Cho

July 6, 2013 By Michael Cho Immigration Lawyer Leave a Comment

We received approval of a client’s I-601 Application for Waiver of Grounds of Inadmissibility just 4 months after it was prepared and filed by my office. This was a particularly challenging case because the U.S. citizen husband was already residing in Ecuador with his wife and son for the past several years.

Our client was a native of Ecuador who used false immigration documents provided by others to enter the U.S over 14 years ago. She remained in the United States illegally for over 10 years before departing voluntarily back to her home country of Ecuador with her U.S. citizen husband. She required the I-601 Application of Waiver of Grounds of Inadmissibility due to her unlawful presence of over 1 year inside the United States, which made her 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.

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 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. This case was particularly difficult given that the U.S. citizen husband was already living abroad in Ecuador with his wife. Proving extreme hardship was thus challenging since the USCIS could argue that the couple living together outside the U.S. for several years shows that the U.S. citizen is not suffering any extreme hardship.

Factors in the favor of our client were the following:

Our client had no criminal record and was a law-abiding individual her entire life except for the immigration mistakes she made to enter and live illegally inside the U.S.
Her U.S. citizen husband was suffering from a variety of medical problems while residing in Ecuador. We obtained medical records and a letter from his Ecuadorian physician providing a comprehensive diagnosis and recommending further testing and treatment in the United States
Her U.S. citizen husband had to pay privately for medical care in Ecuador while on a fixed Social Security income. This was shown to cause financial hardship. On the other hand, his medical care would be paid for by Medicare if he was able to return to the United States.
He could not return to the United States without his wife and young son, since he relied upon his wife to take care of him on a daily basis.
Our client was a devoted wife and mother (of their 5 year old son) who took care of her U.S. citizen husband regularly and helped him cope with his medical problems.
We submitted a psychological report which diagnosed our client’s U.S. citizen husband with Clinical Anxiety Disorder. We showed the interrelationship between psychological and physical disease, and presented evidence to show that his condition would worsen without the presence of his family together with him back in the United States.

As a result of the I-601 waiver approval, this family now lives back in the United States. The U.S. citizen husband is able to receive the affordable medical care he requires to stay healthy through Medicare.

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