I-212 Waivers - Page 2 of 3 - Smart Immigration Lawyer

Client Approval: I-601 Waiver and I-212 Waiver Approved for 10 Year Unlawful Presence Bar and 10 Year Deportation Bar

September 24, 2014 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of both the I-601 Waiver (Application for Waiver of Excludability) and I-212 Waiver (Application for Permission to Reapply for Admission) for the Brazilian spouse of a U.S. citizen wife. The couple have one daughter together who is two years old. They also raise a 6 year old son together who is from a prior relationship of the U.S. citizen wife.

The Brazilian husband entered the U.S. on a B-1/B-2 visitor visa and overstayed for over approximately 1.5 years in the country. He was then detained and removed from the United States. He subsequently re-located from his home country of Brazil to the United Kingdom for greater economic opportunities that would allow him to support his family back in the United States.

The U.S. citizen wife contacted me after her husband attended his immigrant visa interview at the U.S. embassy and was denied for the immigrant visa after being deemed inadmissible to the United States. He was subject to the 10 year “unlawful presence bar” pursuant to INA INA Section 212(a)(9)(B) as well as the 10 year “deportation bar” pursuant to INA Section 212(a)(9)(A)(i) and (ii).

Section 212(a)(9)(B) of the Act provides, in pertinent part:

(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 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.

Section 212(a)(9)(A)(i) and (ii) of the Immigration and National Act, as added by IIRAIRA Section 301, provides that foreign nationals who have been ordered removed may not be readmitted to the United States until they have stayed outside the U.S. for a specified period of time:

5 years for individuals removed through summary exclusion or through removal proceedings initiated upon the person’s arrival in the U.S.;
10 years for those otherwise ordered removed after a deportation hearing or whodeparted the United States while an order of removal was outstanding; and
20 years for a second or subsequent removal.

The I-212 waiver allows foreign nationals who wish to return to the U.S. prior to meeting the required amount of time outside the U.S. to file an application for permission to reapply pursuant to INA Section 212(a)(A)((iii).

The USCIS exercises broad discretion when adjudicating I-212 waiver requests for permission to reapply. The following may be considered positive factors in granting permission for early re-entry:

Basis for the deportation

Recency of deportation

Foreign national’s length of residence in the U.S., and status held during that presence

Family responsibilities and ties to the U.S.

Foreign natonal’s evidence of good moral character

Foreign national’s respect for law and order

Evidence of reformation and rehabilitation

Hardship involving the applicant and others

Need for the applicant’s services in the U.S.

Whether the applicant has an approved immigrant or non-immigrant visa petition

Eligibility for a waiver of other inadmissibility grounds

Absence of significant undesirable or negative factors

Negative factors may include:

Evidence of moral depravity, including criminal tendencies reflected by an ongoing unlawful activity or continuing police record

Repeated violations of immigration laws, willful disregard of other laws

Likelihood of becoming a public charge

Poor physical or mental condition (however, a need for treatment in the United States for such a condition would be a favorable factor)

Absence of close family ties or hardships

Spurious marriage to a U.S. citizen for purpose of gaining an immigration benefit

Unauthorized employment in the United States

Lack of skill for which labor certification could be issued

Serious violation of immigration laws, which evidence a callous attitude without hint of reformation of character

Existence of other grounds of inadmissibility into the U.S.

”Extreme hardship,” for purposes of the I-601 Waiver, 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.

I drafted a comprehensive 25+ page waiver memorandum outlining the relevant case law favorable to my client’s situation. It also discussed in detail the extreme hardships the U.S. citizen wife (and their children) are presently suffering from, and proved how they would worsen in the event of continued separation of this family. I also highlighted a variety persuasive factors that I believed warranted an exercise of favorable discretion on the part of the USCIS.

Some of the favorable factors in this case included the following:

The U.S. citizen wife suffers from a number of medical conditions including Gallstone Pancreatitis and emotional depression. She almost died from post-operative pneumonia after a recent medical procedure.
The U.S. citizen wife’s U.S. citizen son suffers from Attention Deficit Hyperactivity Disorder (“ADHD”), Obsessive Compulsive Disorder (“OCD”), Pervasive Developmental Disorder, and Adjustment Disorder with Mixed Emotions and Conduct. He sees a psychologist regularly and takes medication for his conditions.
The U.S. citizen wife resides with her elderly parents, both of whom suffer from serious medical conditions. The U.S. citizen wife’s father suffers from Pulmonary Thromboembolism, Hypertension, and Emphysema and has been informed by his physician that he may not survive his next heart attack. The U.S. citizen wife takes care of her parents as best she can on a daily basis and helps manage their medical treatment.
The U.S. citizen wife has only a high school education, does not speak Portuguese, and has minimal employment prospects in Brazil and the United Kingdom.
The Brazilian husband worked diligently while in the United States to support his wife and two children. He has continued to do so while residing abroad, sending money to his family every month while enduring a painful separation of almost 4 years from his beloved wife and two children

As a result of the I-601 Waiver and I-212 Waiver prepared and submitted by my office, both waiver applications were approved and the Brazilian husband now resides in the United States as a lawful permanent resident of this country.

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

September 20, 2014 By Michael Cho Immigration Lawyer 2 Comments

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

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

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

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

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

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

In Matter of Tin, 14 I & N 371 (1973), and Matter of Lee, 17 I & N Dec. 275 (1978), the Board of Immigration Appeals established the standards to be considered in adjudicating applications for permission to reapply (applied for using the I-212 Waiver): 1. the basis for deportation; 2. recency of deportation; 3. applicant’s length of residence in the United States; 4. the applicant’s good moral character; 5. the applicant’s respect for law and order; 6. evidence of reformation and rehabilitation; 7. hardship involving the applicant and others; 8. the need for the applicant’s services in the United States; and 9. whether the applicant has an approved immigrant or non-immigrant visa petition.

Extreme hardship is “not a definable term of fixed and inflexible content or meaning, but necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964 ).

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

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

The Board of Immigration Appeals has also held that hardship factors such as family separation, economic disadvantage, cultural readjustment, et cetera, differ in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships. See, e.g., Matter of Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch regarding hardship faced by qualifying relatives on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which they would relocate).

As an example, the Board of Immigration Appeals has found family separation, a common result of inadmissibility or removal, can also be the most important single hardship factor in considering hardship in the aggregate. See Salcido-Salcido, 138 F.3d at 1293 (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983; but see Matter of Ngai, 19 I&N Dec. at 247 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

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

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

The positive factors in this case included:

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

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

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

Current Processing Times for the 212(d)(3) Non-Immigrant Waiver

February 13, 2014 By Michael Cho Immigration Lawyer 1 Comment

The American Immigration Lawyers Association has provided an update on current processing times for the 212(d)(3) non-immigrant waiver that coincides with the experiences of my clients who I have prepared and filed non-immigrant waivers for.

Waivers submitted at Land Border Ports of Entry (generally for Canadians filing 212(d)(3) waivers in conjunction with the Form I-192): The Admissibility Review Office is reporting at least 130 days from the date of receipt of the waiver application to reach a decision. A full review of circumstances may take up to six months or longer depending on the complexity of the situation and completeness of the application.

Waivers submitted at U.S. Consulates: The Admissibility Review Office is reporting at least 130 days from submission by the U.S. Department of State.

For further information, please refer to detailed information on the 212(d)(3) waiver and my legal services for non-immigrant waiver clients.

You may also review detailed information on the 212(d)(3) waiver filing and decision-making process.

Expedited Approval of the I-601 Waiver, I-212 Waiver, and 212(d)(3) Non-Immigrant Waiver

December 13, 2013 By Michael Cho Immigration Lawyer Leave a Comment

The USCIS has had a long standing policy to accept requests to expedite processing of petitions or applications where the applicant or the petitioner demonstrates reasons that merit expedited processing of a petition or application.

While almost all I-601 waiver applicants outside the United States have an interest in expeditious processing, the USCIS states that only extraordinary circumstances that present certain compelling and urgent, time-sensitive reasons merit expedited processing of the I-601 waiver.

According to a memorandum dated 2011, the types of extraordinary circumstances that may, generally, merit expedited processing of a Form I-601 are those in which there are:

“time-sensitive and compelling situations that necessitate the applicant’s presence in the United States sooner than would be possible if the application were processed under normal processing times” or
“other time-sensitive circumstances that nonetheless merit expeditious processing, principally where the failure to expedite the adjudication could result in significant delays in family reunification.”

These situations may include, but are not limited to, situations in which the applicant establishes one or more of the following:

The applicant has urgent and critical medical needs that cannot be addressed in the applicant’s country;
An applicant’s family member in the United States has a serious medical condition and has urgent and critical medical needs related to that condition that require the applicant to assist the family member in the United States;
The applicant is faced with urgent circumstances related to the death or serious illness of a family member;
The applicant or qualifying family member is a particularly vulnerable individual due to age, serious medical condition, or disability and this vulnerability is exacerbated by the applicant’s presence outside the United States;
The applicant is at risk of serious harm due to personal circumstances distinct from the general safety conditions of those living in the applicant’s country;
It would be in the national interest of the United States to have the applicant in the United States (for example, the applicant’s presence in the United States is urgently required for work with a U.S. government entity); or
As described in a request from or for a member of the Armed Forces of the United States:
- The applicant’s qualifying family member is a member of the military who is deployed or will soon be deployed; and
- The applicant demonstrates that, in light of the deployment there are compelling reasons to expedite the request due to the impact of the applicant’s absence from the United States on the applicant, the qualifying family member, or their children, if any.

The above non-exhaustive list describes some examples of situations that may, depending on the facts of the case, merit a discretionary approval of a request to expedite adjudication of a waiver request.

However, these are not the only circumstances that may warrant expeditious processing. There may also be other time-sensitive circumstances that do not necessitate the applicant’s presence in the United States sooner than would be possible under normal processing times, but that nonetheless merit expeditious processing.

For example, the applicant may be ineligible to receive a visa in the following month due to forecasted visa regression and therefore faces an even more prolonged and unanticipated separation from family members if the application is not expedited.

Similarly, the applicant may request that the case be expedited to prevent a child not covered by the Child Status Protection Act from aging out before visa issuance. There also may be circumstances in which a prior USCIS error merits expeditious processing of a request.

Requests must include sufficient evidence to support the claimed need for expedited processing or an explanation of why that evidence is not available. For example, if the request is based on an urgent, serious medical condition, the applicant should provide a medical report. If the request is based on urgent need by a U.S. government entity to have the applicant in the United States, the applicant should provide a letter from the entity supporting the expedite request.

My office has successfully obtained expedited approval of applications for the I-601 waiver. I also regularly obtain expedited approval of the I-129F Petition for Alien Fiancee and I-130 Petition for Alien Relative. In my experience, the “extraordinary circumstances” discussed in this article form the basis for successful expedite requests for the I-601 waiver, the I-212 waiver, the 212(d)(3) non-immigrant waiver, as well as other relative-based petitions. The most common basis for expedited approval that I encounter is military deployment of the U.S. citizen petitioner.

I-601 and I-212 Waivers and Deportation In Absentia

October 4, 2013 By Michael Cho Immigration Lawyer Leave a Comment

Section 212(a)(6)(8) of the Immigration and Nationality Act sets forth the consequences of failure to attend a removal proceeding. Specifically, it states:

(1) General. Any alien who, without reasonable cause, fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability, and who seeks admission to the United States within five (5) years of such alien’s subsequent departure or removal is inadmissible.

This “5 year bar” under Section 212(a)(6)(8) often becomes an issue for applicants who leave the United States to apply for the I-601 and/or I-212 waivers despite having had deportation ordered entered against them “in absentia.” A deportation order in absentia can be entered when the alien fails to attend their removal hearing after receiving a Notice to Appear (NTA) from immigration court. For these applicants, they must remain outside the United States for 5 years until they are eligible to apply for their I-601 and/or I-212 waivers.

Keep also in mind that you can be deemed inadmissible even if the judge did not enter a deportation order. As long as you were given sufficient notice of your removal hearing and failed to appear, you may be deemed inadmissible under Section 212(a)(6)(8).

Those who have an order of deportation in absentia on their record must show “reasonable cause” for failing to attend their removal hearing, in order for their I-601 and/or I-212 waiver applications to be adjudicated. This is not an easy task. A review of the case law shows that only extraordinary circumstances such as a medical emergency will meet this standard.

[Read more…]

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

September 27, 2013 By Michael Cho Immigration Lawyer 1 Comment

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.

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.

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