I-601 Legal News

The applicant is a citizen of Russia who was found to be inadmissible to the United States under INA Section 212(a)(6)(C)(i) for having procured a visa or admission to the United States through fraud or misrepresentation of a material fact.  The applicant resided in the United States from May 5, 2000, when he entered as a visitor for business, to March 2001, when he returned to Russia.

The applicant was found to be inadmissible for having procured a visa through a visa fraud ring by making false statements that he owned a company and was traveling to the U.S. for a trade show.  He was arrested and charged with fraud and misuse or forgery of a visa on September 14, 2000, but the charges were dismissed by the U.S. District Court after the applicant cooperated with authorities in the prosecution of the fraud ring leaders.

The applicant is married to a U.S. citizen and is the beneficiary of an approved Petition for Alien Relative.  The applicant seeks a waiver of inadmissibility pursuant to INA Section 212(i), in order to return to the United States and reside with his wife.

INA Section 212(a)(6)(C) provides, in pertinent part:

(i) Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

INA Section 212(i) 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 first important point to keep in mind is that a waiver of inadmissibility under INA Section 212(i) is dependent upon showing that the bar to admission imposes extreme hardship on the qualifying relative (which includes the U.S. citizen or lawful permanent resident spouse or parent of the applicant).  Hardship to the applicant or his children can be considered only insofar as it results in hardship to a qualifying relative.  See Matter of Mendez-Moralez 21 I&N Dec. 296,301 (BIA 1996).

The second important point to keep in mind when preparing the I-601 waiver is that the applicant must establish extreme hardship to his or her qualifying relative(s) under two possible scenarios: the extreme hardships endured by the qualifying relative due to separation if the applicant remains abroad; and the extreme hardships endured by the qualifying relative due to re-location, if he or she moves abroad to be with the applicant.

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.  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.

Although 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 O-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.”

Additionally, although the AAO acknowledged that the actual hardship of each hardship factor varies  with the unique circumstances of each case, it gives considerable, if not predominant, weight to the hardship of separation itself, particularly in cases involving the separation of spouses from one another and/or minor children from a parent.  Salcido-Salcido, 138 F.3d at 1293.

The favorable factors that led to approval of this I-601 waiver are the following:

• The applicant’s wife is a forty year-old native of Russia and citizen of the United States.  She has lived apart from her husband and older daughter for over six years.  Due to the economic situation in Russia, they decided that she would remain in the U.S. and support the family and the applicant would keep the children with him because she must work long hours as a nurse in order to support the family.
• The U.S. citizen wife has visited Russia more than thirty times in the past six years and further states that she would have no choice but to move back to Russia if her husband’s I-601 waiver was denied
• Affidavits from co-workers state that the U.S. citizen wife travels to Russia very frequently, misses her family badly, and gets tears in her eyes whenever she talks about her husband and children
• The U.S. citizen wife works 24 hours of overtime per week in addition to her three 12-hour shifts as an operating room nurse in order to pay for her travels to Russia.  She usually works immediately the next day after returning from Russia.
• The U.S. citizen wife feels sick for 10 days after returning from her trips to Russia and states she cannot bear this situation for much longer.
• The U.S. citizen wife is experiencing financial hardship due to the cost of frequent travels to Russia that cost $850 to $1350 per trip
• The U.S. citizen wife has resided in the U.S. since 1999 and is regarded by coworkers as dedicated and responsible and serves as a role model for new staff.
• She purchased a house in 2006 where she intended to move in with her family.  If she left the U.S., she would be forced to sell the house at a $100,000 loss because the housing market has crashed.  She has no way to pay for the short-fall.  Low wages in Russia would mean she would never be able to pay back her debt.
• The U.S. citizen wife has a mother who also lives in New York and works as a nurse.  She would miss her mother terribly if she re-locates back to Russia.

Finally, in Matter of Mendez-Moralez I&N Dec. 296 (BIA1996), the BIA held that establishing extreme hardship and eligibility for a waiver does not create an entitlement to that relief, and that extreme hardship, once established, is but one favorable discretionary factor to be considered.  In discretionary matters, the alien bears the burden of proving eligibility in terms of equities in the United States which are not outweighed by adverse factors. See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA1957).

In evaluating whether section 212(i) relief is warranted in the exercise of discretion, the factors adverse to the alien 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 and seriousness, and the presence of other evidence indicative of the 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 alien began 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 or service in 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).  See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA1996).  The AAO must then “balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented on the alien’s behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. ”

Discretion was exercised in favor of the applicant due to the factors discussed above and this I-601 waiver case was approved by the AAO.