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Parole In Place and the I-601 Waiver or I-601A Provisional Waiver

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Parole In Place and the I-601 Waiver or I-601A Provisional Waiver

The USCIS has release a policy memorandum concerning the parole of  spouses, children and parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve.

INA § 212(d)(5)(A) gives the Secretary the discretion, on a case-by-case basis, to “parole” for “urgent humanitarian reasons or significant public benefit” an alien applying for admission to the United States.  Although it is most frequently used to permit an alien who is outside the United States to come into U.S. territory, parole may also be granted to aliens who are already physically present in the U.S. without inspection or admission.  This latter use of parole is sometimes called “parole in place.”

The basic authority for parole in place is INA § 212(d)(5)(A), which expressly grants discretion to parole “any alien applying for admission to the United States.”  INA § 235(a)(1), in turn, expressly defines an applicant for admission to include “an alien present in the United States who has not been admitted.”

According the new policy memorandum issued by the USCIS:

“As noted above, the decision whether to grant parole under INA § 212(d)(5)(A) is discretionary.  Generally, parole in place is to be granted only sparingly.  The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, however, ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual.  If USCIS decides to grant parole in that situation, the parole should be authorized in one-year increments, with re-parole as appropriate.”

Thus, for an alien who entered without inspection, a grant of parole under INA § 212(d)(5)(A) affects at least two of the eligibility requirements for adjustment of status.  First, adjustment of status requires that the person be “admissible.” INA § 245(a)(2).  Parole eliminates one ground of inadmissibility, section 212(a)(6)(A)(i).  Second, adjustment of status requires that the alien have been “inspected and admitted or paroled.” INA § 245(a).  The grant of parole under INA § 212(d)(5)(A) overcomes that obstacle as well.

The alien must still, however, satisfy all the other requirements for adjustment of status. One of those requirements is that, except for immediate relatives of United States citizens and certain other individuals, the person has to have “maintain[ed] continuously a lawful status since entry into the United States.” INA § 245(c)(2).  Parole does not erase any periods of prior unlawful status.

Consequently, an alien who entered without inspection will remain ineligible for adjustment, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exemptions.  Moreover, even an alien who satisfies all the statutory prerequisites for adjustment of status additionally requires the favorable exercise of discretion.

The practical effect of this memorandum is that immediate relatives of active or former members of the U.S. Armed Forces (or Selected Reserve of the Ready Reserve), who entered the U.S. “illegally” (without inspection or parole), can apply for adjustment of status inside the United States once parole in place has been granted.  They no longer need to travel back to their home country to consular process for their permanent residence.  This also means that the I-601A Provisional Waiver, or I-601 Extreme Hardship Waiver, is no longer required for this group of applicants, who would have been subject only to the unlawful presence ground of inadmissibility upon departure from the U.S.

Keep in mind that the I-601 waiver may still be required as part of the adjustment of status process for those subject to other grounds of inadmissibility, such as fraud/misrepresentation or conviction of a crime of moral turpitude.

I-601A Provisional Waiver May Not be Required for Some DACA Recipients

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I-601A Provisional Waiver May Not be Required for Some DACA Recipients

The Legal Action Center has released a report which confirms a positive development for some DACA recipients who previously had only the option of applying for lawful permanent residence through the I-601A Provisional Waiver process.   I excerpt the relevant portions below:

“On June 15, 2012, the Secretary of the United States Department of Homeland Security (DHS) issued a memorandum allowing individuals who entered the United States before turning sixteen and who meet certain guidelines to pursue Deferred Action for Childhood Arrivals (DACA).  One of the benefits of DACA is that the recipient may seek permission to travel abroad temporarily for humanitarian, educational, or employment purposes.  A DACA recipient who seeks to temporarily leave and re-enter the United States must apply for advance parole.  If a DACA recipient travels abroad and returns under a grant of advance parole, then s/he is “paroled” into the United States within the meaning of INA §245(a), and may qualify for adjustment of status.”

“In Matter of Arrabally and Yerrabelly, the Board held that travel on advance parole does not constitute a “departure” for purposes of the 10-year-bar for unlawful presence under INA § 212(a)(9)(B)(i)(II).  While Matter of Arrabally and Yerrabelly addressed advance parole in the context of adjustment applications, the USCIS Administrative Appeals Office (AAO) has since applied this analysis in at least several cases involving individuals holding Temporary Protected Status (TPS), each of whom left temporarily following the accumulation of more than one year of unlawful presence and then returned to the United States under advance parole.  Based on Matter of Arrabally and Yerrabelly, the AAO found that these applicants were not inadmissible and that waivers of inadmissibility were not necessary.

Although there has been no formal written guidance on this issue yet, it appears likely that USCIS views Matter of Arrabally and Yerrabelly as applicable to DACA recipients traveling on advance parole.  Indeed, some DACA recipients have received advance parole authorizations (Form I-512L) explicitly stating that traveling abroad under advance parole is not a departure within the context of INA § 212(a)(9)(B), pursuant to Matter of Arrabally and Yerrabelly.”

Thus, advance parole may make some DACA recipients gain the dual benefit of eliminating exposure to the 3 or 10 year unlawful presence bars they are subject to pursuant to INA § 212(a)(9)(B); and gaining eligibility for adjustment of status, thereby eliminating the need to consular process through the U.S. embassy in their home country.

This positive development ONLY applies for DACA recipients who are the spouses of U.S. citizens or children (unmarried and under 21 years of age) of U.S. citizen parents, who are not subject to any other grounds of inadmissibility (aside from the 3 or 10 year unlawful presence bar under INA § 212(a)(9)(B)).  This group may no longer need to apply for lawful permanent residence through the I-601A Provisional Waiver process.  Instead, they can now apply for advance parole; depart from the U.S.; and re-enter the country to proceed with their adjustment of status to lawful permanent residence within the United States.

Keep in mind that the inspecting immigration officer at the port of entry may deny entry into the United States if the officer finds that any of the inadmissibility grounds apply.  Thus, even after being granted advance parole as a DACA recipient, you should make absolutely sure you are not subject to any of the other grounds of inadmissibility before departure from the U.S.

For example, there should be no outstanding orders of removal on file.  You should not be subject to previously incurred immigration bars, such as the unlawful presence bars under INA § 212(a)(9)(B) or the permanent bar under INA § 212(a)(9)(C), based a prior departure before obtaining advance parole.  You should not be subject to the criminal grounds of inadmissibility under INA § 212(a)(2) or for fraud/misrepresentation under INA § 212(a)(6)(C).  It is important that an immigration lawyer with particular expertise in waivers and the immigration grounds of inadmissibility guide you through this process.  Matter of Arrabally and Yerrabelly is not a precedent decision and you must proceed with caution.

I-601 Extreme Hardship Waiver Approved for Gambian for Material Fraud/Misrepresentation

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I-601 Extreme Hardship Waiver, Fraud/Misrepresentation, and Psychological Report

I-601 Waiver News

The I-601 Extreme Hardship Waiver applicant is a native and citizen of the Gambia who has resided in the United States since November 5, 2010, when he was admitted pursuant to a non-immigrant visa.  He was found to be inadmissible to the United States under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i), for having procured that visa to the United States through fraud or misrepresentation.

The applicant is the spouse of a U.S. citizen and is the beneficiary of an approved Petition for Alien Relative.  The applicant seeks a waiver of inadmissibility pursuant to Section 212(i) of the Act, 8 U.S.C. § 1182(i), in order to remain in the United States with his U.S. citizen spouse.

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 or other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

Section 212(i) of the Act 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.

Keep in mind that the fraud or willful representation must be of a material fact to render someone inadmissible under Section 212(a)(6)(C).  What is considered a “material” fact?

The Department of State’s Foreign Affairs Manual [FAM] provides, in pertinent part:

Materiality does not rest on the simple moral premise that an alien has lied, but must be measured pragmatically in the context of the individual case as to whether the misrepresentation was of direct and objective significance to the proper resolution of the alien’s application for a visa ….

“A misrepresentation made in connection with an application for a visa or other documents, or with entry into the United States, is material if either:

(1) The alien is excludable on the true facts; or
(2) The misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might have resulted in a proper determination that he be excluded” (Matter of S- and B-C,  9 I&N 436 at 447.)

DOS Foreign Affairs Manual, § 40.63 N. 6.1.

A misrepresentation is generally material only if by it the alien receives a benefit for which he would not otherwise have been eligible. See Kungys v. United States, 485 U.S. 759 (1988): see also Matter of Tijam, 22 I. & N. Dec. 408 (BIA 1998); Matter of Martinez-Lopez, 10 I. & N. Dec. 409 (BTA 1962; AG 1964) and Matter of S-and B-C-, 9 I. & N. Dec. 436 (BIA 1 50; AG 1961).

By stating that he was married and living with his wife, when in fact he had been separated from her for three years and she was living in another country, the applicant led the embassy to believe that he had close family ties, namely, a wife, in his home country.  By omitting the fact that be had been separated and was living elsewhere, he cut off a line of inquiry which was relevant to the applicant’s request for a visitor visa.   As such, the AAO found the application inadmissible under Section 212(a)(6)(C)(i) of the Act, for fraud and/or misrepresentation with respect to his non-immigrant visa application at the U.S. Embassy in Banjul, the Gambia.

The AAO also found extreme hardship and a favorable exercise of discretion in this I-601 Waiver case based on the following factors:

  • The U.S. citizen spouse had two surgeries in 2012 and 2013 for a blockage in her small intestines, and as a result she suffers with eating and has to undergo iron infusions 1-2 times a year.  Medical records and a letter from her physician are submitted in support for this claim.
  • The physician states that the U.S. citizen spouse had a small intestinal blockage possibly caused by previous gastric bypass surgery, and because additional complications can occur in the future, the physician recommended that the spouse stay in the United States where her surgeons are familiar with her medical needs.
  • The U.S. citizen spouse has a hard time paying for her treatment and infusions even with the health insurance she has from her job as a medical assistant
  • The U.S. citizen spouse’s financial situation has deteriorated so much that she had a car repossessed in August 2012.
  • The U.S. citizen spouse earns $2000 a month, and she is behind on her mortgage and car payments.
  • The U.S. citizen spouse needs the applicant’s income to make ends meet.
  • The U.S. citizen spouse relies on the applicant for psychological support, especially given her traumatic childhood and her first marriage, in which she was abused.
  • A forensic mental health evaluation is submitted in which the forensic evaluator describes the U.S. citizen spouse’s childhood and marriage.  The evaluator reports that her family was very poor, the U.S. citizen spouse was sexually abused and given alcohol by a male relative when she was young, and she had many responsibilities early in life because both her parents were alcoholics.
  • The evaluator states that she became pregnant at age 17 years of age, and married an abusive and emotionally controlling man at age 21.  The evaluator believes that due to her history, she relies on the applicant for emotional support and is able to trust him without fear.  The evaluator concludes that the U.S. citizen spouse suffers to dysthymia and severe stress, and she needs the applicant present to maintain psychological stability.
  • Letters from friends and family describe the U.S. citizen spouse’s emotional issues and the applicant’s assistance with those issues.
  • The U.S. citizen spouse was born in the U.S., has no ties to the Gambia, and a relocation there would cause separation from her parents, her three adult children, and her brother, which would exacerbate her current emotional difficulties.
  • The U.S. citizen spouse has no knowledge of the culture in the Gambia, cannot speak any Gambian languages, and would be unable to continue her education and become a registered nurse in the Gambia, which lacks sufficient educational facilities.  Letters from Gambian citizens are submitted in support.
  • The village where the applicant was born in speaks Wollof instead of English, and the nursing school and hospital are too far to be accessed from the village.
  • Relocation to the Gambia would result in loss of U.S. employment for the U.S. citizen spouse

The key points to take away from this I-601 waiver approval is that the psycho-social profile of the qualifying relative can assist in greatly in proving extreme hardship.  If the qualifying relative is particularly vulnerable to the hardships of separation due to a history of abuse, trauma, and mental health issues, these should be documented by a qualified mental health specialist.  Friends and family members should also corroborate these issues in their own affidavits written in support of the waiver application.

Additionally, when a physician’s letter is procured to document a medical hardship, it is helpful to have the physician recommend that the qualifying relative remain in the U.S. to receive adequate care by those familiar with his/her conditions.  It is often difficult to get physicians to provide anything more than a perfunctory letter or copy of the medical records.  I recommend being persistent and informing the physician that the letter will only be used in support of a U.S. immigration application.  U.S. physicians can be paranoid about medical liability issues so this should alleviate their concerns.

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

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I-601 Waiver Approved by AAO Based on Extreme Hardship to LPR Father From China

I-601 Waiver News

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

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

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

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

Section 212(i) provides, in pertinent part:

(1) The Attorney General.[ now Secretary of Homeland Security) may, in the discretion of the Attorney General [now Secretary of Homeland Security], waive the application of clause (i) of subsection (a)(6)(C) in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully permanent resident spouse or parent of such an alien ….

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

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

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

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

I-601A Provisional Waiver Processing In-Depth & Latest Stats on Approvals

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I-601A Provisional Waiver Processing In-Depth

Courtesy of CLINIC, we now have a more in-depth understanding of the internal processing that an I-601A Provisional Waiver goes through after being submitted an applicant. Please find the update by Susan Schreiber and Charles Wheeler below.  I have added highlights in bold to areas that I feel are important to keep in mind when preparing and submitting the I-601 Provisional Extreme Hardship Waiver.

NBC Background

Since March 4, 2013, The National Benefits Center has been responsible for adjudication of I-601A applications for provisional waivers.

Statistics

The NBC has provided the following numbers based on I-601A applications received or adjudicated from March 4 – September 14, 2013:

23,949 applications sent to Lockbox

17,996 applications accepted by Lockbox

5,953 application rejected by the Lockbox

The reasons for rejection could include no applicant signature, no proof of I-130 approval, no proof of Immigrant Visa fee paid, or applicant is under 17.  The number of applications received may include re-filings by applicants whose cases were initially rejected at the Lockbox.

The NBC has 12,098 applications in the pipeline, with approximately 2,300 ready for processing. It is averaging approximately 600 applications/week, so it has about four weeks of applications to adjudicate. With 45 adjudicators currently working these cases, this averages out to each adjudicator handling about 13 applications per week, or about 2.6 per day. Mr. Blackwood noted that adjudicators have other work responsibilities, including time spent in trainings and at meetings.

The NBC has issued the following decisions:

3,497 approvals (59%)

2,292 denials (39%)

103 admin closures (application returned fur various reasons, e.g., filed I-601 instead of I-601A) (2%)

Although applications have been denied for various reasons, the highest number of denials – 1,093, or 48% of all denials – is for “reason to believe.” The second highest number – 937, or 41% of all denials – is for failure to establish establish extreme hardship. Other reasons for denial include abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and applicant subject to existing or final order of removal.

At present, the average time between receipt of an application at the Lockbox and decision issuance is 103 days. The goal is to reduce the adjudication time to 90 days. The NBC adjudicators were working at that pace initially until the “reason to believe” denials became a controversial issue.

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I-601A Provisional Waiver Update and FOIA Filing Tips

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I-601A Provisional Extreme Hardship Waiver Filing Tips and Update

According to the American Immigration Lawyers Association Liaison, the USCIS has denied applications for provisional unlawful presence waivers (Form I-601A) where there is any criminal issue (even if it would not trigger inadmissibility) or where there are allegations that a false name or date of birth was used when the applicant was apprehended for attempting to enter without inspection. USCIS has denied these applications on the grounds that it has “reason to believe” the applicant may be inadmissible for reasons other than unlawful presence.

According to a recent update by Robert Blackwood, Assistant Section Director for Adjudications at the National Benefits Center, the NBC stopped issuing “reason to believe” denials as of six weeks ago.  It has suspended adjudication of cases where this issue is present while the Dept. of State and USCIS re-consider their current policy.  During this time, cases that involve a a potential “reason to believe” isssue are being held in abeyance, with no action taken on the case.  There are currently 1300 I-601A waiver applications affected by this issue and they will not be adjudicated until there is further guidance on the “reason to believe” policy.

Nevertheless, given this very broad interpretation of the “reason to believe” standard thus far, it is extremely important that all applicants be absolutely sure about their immigration and criminal history before proceeding with the I-601A Provisional Waiver application.

1. Immigration History: You must be cognizant of every lawful and unlawful entry into the United States, whether or not you were caught. The USCIS conducts a thorough background check and can and will obtain records of attempted border crossings, including a voluntary return or “catch and release.” Go over your immigration history with an experienced immigration attorney knowledgeable on waivers and grounds of inadmissibility before submitting the I-601A Provisional Waiver.

2. Criminal History: “Arrest” does not always include “jail.” USCIS needs to know whether you were ever arrested, cited, charged, indicted, convicted, fined, or imprisoned for violating any law or ordinance in the U.S. or anywhere else in the world, regardless of whether the case was dismissed, including traffic violations.

3. Department of Homeland Security Freedom of Information Act Requests: If you cannot remember the exact details of your immigration history, consider filing Freedom of Information Act (FOIA) requests with the various DHS agencies. In any FOIA request is it helpful to be specific about the documentation and information you are seeking and to provide all possible variances of your name including phonetic spellings to facilitate the request. If the FOIA response indicates that no records were located, consider filing a FOIA appeal which may produce better results.

4. Department of State FOIA Request: If you have ever been denied a visa and do not have records showing the reason(s) for the denial, consider filing a FOIA request with the Department of State. Remember to obtain third party authorizations from any person that may have been a party to the interview or application. DOS may limit the information it will provide, but information as to all documents the applicant submitted are discoverable.

5. FBI Background Check: If you have ever been arrested or detained by law enforcement but do not have records pertaining to your case, obtain a FBI criminal history summary. Please note, however, that the FBI records should include incidents at the border, but might not.

6. Police Reports and Court Records: If the FBI background check reveals a criminal issue or “hit,” you must obtain the police reports and any court records relating to the incident. Arrest records may be obtained from the local law enforcement agency where the arrest was made. Court records can be obtained from the court where the case was heard or dismissed after some sort of pre-trial action.

7. Traffic Records: If you cannot remember the details or have records of possible traffic violations, traffic records can be obtained from any state DMV office, and should include citations from other states, unless the client had a driver license from another state. Traffic records may include citations for driving without a license, providing a false driver’s license or name, or even reckless driving and DUI.

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I-212 Waiver and I-601 Extreme Hardship Waiver Approved for Montenegrin

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Application for Permission to Reapply for Admission Approved

I-212 Waiver and I-601 Waiver News

The applicant in this case is a citizen of Montenegro who entered the U.S. in 2002 using someone else’s passport.  He was subsequently removed from the U.S. in 2011.  He was deemed inadmissible based on Section 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for seeking to procure admission to the United States through fraud or misrepresentation; Section 212(a)(9)(B)(i)(II) of the Act, 8 U.S.C. §1182(a)(9)(B)(i)(II), for having been unlawfully present in the United States for more than one year; and Section 212(a)(9)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C.§ 1182(a)(9)(A)(ii) for seeking admission within five years of the date of his removal.

This is a common situation facing applicants who require approval of multiple waivers arising out of an entry into the United States based on fraud or misrepresentation, followed by an overstay of more than 1 year, followed by their removal.

1. In these types of situations, a waiver must be requested for each separate ground of admissibility.  In practical terms, a single waiver package consisting of the I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212), I-601 Application of Waiver of Grounds of Inadmissibility (Form I-601), and comprehensive legal brief (with supporting documentation) requesting waiver of the three separate grounds of inadmissibility would suffice.  Additionally, a showing of extreme hardship and favorable exercise of discretion on the I-601 waiver almost always means approval of the I-212 waiver.  This is because a grant of the “I-212 waiver” is a discretionary decision based on the weighing of negative and positive factors; and this analysis is already conducted for purposes of the I-601 “extreme hardship” waiver.

2. The misrepresentation or fraud can be waived pursuant to Section 212(i) of the Act, 8 U.S.C. § 1182(i).  The 10 year unlawful presence bar can be waived pursuant to Section 212(a)(9)(B)(v) of the Act, 8 U.S.C. § 1182(a)(9)(B)(v).  The “5 year bar” for having been previously removed can be “waived” pursuant to Section 212(a)(9)(A)(iii) of the Act, 8 U.S.C. § 1182(a)(9)(A)(iii).

3. A waiver of inadmissibility under section 212(i) of the Act and under section 212(a)(9)(B)(v) 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 only qualifying relative in this case is the U.S. citizen spouse of the Montenegrin.  The couple’s two children are not deemed to be “qualifying relatives” for purposes of the waiver of inadmissibility under Section 212(i) and Section 212(a)(9)(B)(v).  However, although children are not qualifying relatives under the statute, the USCIS does consider that a child’s hardship can be a factor in the determination whether a qualifying relative experiences extreme hardship.  If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and the USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez 21 I&N Dec. 296, 301 (BIA 1996).

What this means is that extreme hardship to the children should be detailed and documented, but always tied to how that would cause or increase extreme hardship to the qualifying relative.  In other words, when the children suffer, the mother suffers as a result.

4. The favorable factors in this case that led to approval of the I-212 and I-601 waiver are detailed below:

  •  U.S. citizen wife is unable to work because she is caring for her parents.
  • U.S. citizen wife was forced to move out of her house and rent the house in order to pay the monthly mortgage payments.
  • Financial documentation indicates the Montenegrin husband and his U.S. citizen wife had a monthly mortgage payment of $1 ,285.44.
  • A copy of the 2008 federal income tax return for the husband and his wife indicates that the couple had an adjusted gross income of $24,938, and that the occupation of the U.S. citizen wife was customer service.
  • U.S. citizen wife became a stay-at-home mother after the birth of their second child in June 2008, in order to care for their two young children.
  • In an affidavit dated April 11, 2011, the U.S. citizen wife states that she has no independent source of income.
  • A psychological evaluation indicates that the U.S. citizen wife stated that her husband was the only provider in the family, and that she is now getting food stamps.
  • U.S. citizen wife states that she was involved in a car accident in September 1998, in which she suffered broken bones and spinal damage. Medical documentation indicates that the U.S. citizen wife suffered lower back pain, numbness in the left hand and right leg, and temporomandibular joint disorder (TMJ) of the right jaw.
  • Medical documentation indicates that the U.S. citizen wife was diagnosed with two lumps in her breast in 2012. Although the growths were not cancerous, her condition needs to be monitored with continued routine examinations
  • U.S. citizen wife has a history of psychological problems. Following the car accident in September 1998, the aU.S. citizen wife was diagnosed with depression and post-traumatic stress disorder.
  • In a letter dated April 12, 2011 from the psychiatrist who treated the U.S. citizen wife with her psychological problems following the car accident, the psychiatrist states that the U.S. citizen wife began seeing the doctor again in February 2011 for depression, and the psychiatrist prescribed Zoloft for her depression and insomnia.
  • A psychological evaluation performed by a licensed psychologist, states that the U.S. citizen wife is diagnosed with Major Depressive Disorder, Severe, Recurrent. The psychologist states that the U.S. citizen wife is unable to handle her family responsibilities without the assistance of the applicant.
  • U.S. citizen wife has resided in the United States since 1998, and both her parents are lawful permanent residents residing in the United States.
  • Medical documentation for both parents of the U.S. citizen wife indicates the father of the U.S. citizen wife is disabled as a result of a car accident in 2006, and suffers from post-traumatic memory difficulty, post-concussion syndrome, post-traumatic stress disorder/mood disorder, post-traumatic neck and low back pain, periodic dizziness, headaches, and left hip pain.
  • A doctor’s statement states that the U.S. citizen wife is the main care giver for her father.
  • Medical documentation indicates that the mother of the U.S. citizen wife is suffering from fibromyalgia, depression, hypertension, and hyperlipidemia, and that she requires help and assistance from the applicant’s spouse.
  • U.S. citizen wife has two brothers in the United States, and evidence shows that the older brother is currently incarcerated, and the younger brother entered college as a freshman in the Fall of 2011, thus neither brother is able to assist with providing care for the parents of the U.S. citizen wife in the United States.
  • U.S. citizen wife was born in Montenegro, but is ethnic Albanian, she speaks the Albanian language, and does not speak the Serbo-Croatian language, as do the majority of the residents of Montenegro. Only 5.3% of the population of Montenegro speak Albanian, and this would limit chances for the U.S. citizen wife to find employment in Montenegro
  • U.S. citizen wife and their two children tried to live in Montenegro with the Montenegrin husband during the summer months of 2011. Their children became ill and had to undergo medical treatment for acute entercolitis infections, and medical documentation was submitted to verify the condition of the their children.
  • Evidence was submitted to show that the Montenegrin husband was unable to find employment in Montenegro to support his wife and children at the time of their stay in Montenegro.

AAO Approves I-601 Extreme Hardship Waiver for Honduran Deemed Inadmissible Based on Fraud and Misrepresentation

By Leave a Comment

I-601 Waiver for Honduran Deemed Inadmissible Based on Fraud and Misrepresentation

I-601 Waiver News

The applicant in this case is a Honduran female who attempted to enter the United States in 1993 by presenting an altered Honduran passport.  She was deemed inadmissible under section 212(a)(6)(C)(i) of the Immigration & Nationality Act for willful misrepresentation of a material fact in order to procure an immigration benefit.  She thus required a waiver under 212(i) in order to reside with her mother and children in the U.S.

Although this case decision does not discuss unlawful presence, it appears that the applicant re-entered the United States without inspection and has resided with her mother and her children in the country since 2003.  In reality, she was probably also subject to the 10 year unlawful presence bar under  INA Section 212(a)(9)(B) and required a waiver pursuant to  Section 212(a)(9)(B)(v).

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

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

Section 212(i) provides, in pertinent part:

(1) The Attorney General [now Secretary of Homeland Security] may, in the discretion of the Attorney General [now Secretary of Homeland Security], waive the application of clause (i) of subsection (a)(6)(C) in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully permanent resident spouse or parent of such an alien ….

The majority of I-601 Waiver cases I prepare on behalf of my clients involve couples.  I thereby prepare a comprehensive extreme hardship memorandum (including citation of relevant case law and how they fit the specific facts of my client’s situation) that goes over two scenarios:  1. the extreme hardships the U.S. citizen or LPR spouse would suffer if the applicant is not admitted to the United States; or alternatively, the extreme hardships the U.S. citizen or LPR spouse would suffer if he/she is forced to move abroad and reside in  the home country of the foreign spouse.

It is important to keep in mind however that extreme hardship to the U.S. citizen or lawful permanent resident parent also qualifies for purposes of the I-601 waiver.  [However, it is only extreme hardship to the U.S. citizen parent or spouse (not lawful permanent resident) that qualifies for purposes of the I-601A Provisional Waiver.]

In this case, the favorable factors are the following:

  • Applicant’s mother has lived with her daughter since 2003.
  • The daughter provides the mother support, shelter, food, and cares for all her needs and if the daughter’s waiver application were denied, the mother would lose all of this support
  • Applicant’s mother provides child care for her daughter’s two children, cooks all the family’s meals, cleans the house daily, and cares for the children until her daughter returns from work.
  • Applicant’s son is sixteen years old and has been diagnosed with anxiety, fears, phobias, depression for which he sees a psychologist.  If the applicant’s waiver application were denied, the mother would be placed in the situation of caring for her daughter’s son without her daughter’s support.
  • Applicant’s mother has arthritis of her right knee, bilateral cataracts, osteoarthritis, and borderline hypertension.
  • If the Applicant’s mother returned to Honduras to be with her daughter, she would have no choice but to live with her son, in a three-room structure which is occupied by his wife and their two children.  Her son is severely underemployed and cannot support her.
  • Applicant’s mother would not have adequate medical care for her medical conditions in Honduras.  The presence of diseases and pollution in Honduras would exacerbate her current medical problems.
  • Applicant’s mother could be the victim of crime as Honduras uncontrolled, rampant crime.

The second relevant point highlighted by this case is the importance of supporting documents.  I-601, I-601A, and I-212 waiver cases are won with solid supporting documents that confirm the statements made in the waiver memorandum.

In this case, the AAO specifically cites the following evidence as persuasive in approving this I-601 waiver application:

  • The letter from the mother’s physicians corroborating that she has borderline hypertension, cataracts bilaterally, osteoarthritis, and problems with her right knee, to the extent that she requires continued treatment and was ordered complete rest with daily assistance for thirty days.
  • U.S. Department of State issued a Travel Warning for Honduras (U.S. Department of State, Travel Warning, Honduras, dated November 21, 2012).
  • U.S. Department of Homeland Security extended Temporary Protected Status for Honduran nationals through July 2013.
  • Letter from the Applicant’s son’s physicians
  • Applicant’s mother is sixty seven years old and moving to Honduras would disrupt the continuity of her medical care.  Re-adjustment to life in Honduras would be difficult given her advanced age and long absence from the country.
  • Applicant’s daughter provides her mother with food, shelther, financial support, and takes care of her.  They have been living together for the past ten years.

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