Smart Immigration Lawyer

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

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I-601 Waiver and I-601A Waiver Expedite

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 Waiver Approved by AAO for Russian Inadmissible Due to Fraud

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I-601 Waiver Approved by AAO for Russian Inadmissible Due to Fraud

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.

What is a Crime Involving Moral Turpitude and When is the I-601 Waiver Required?

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What is a Crime Involving Moral Turpitude and When is the I-601 Waiver Required?

Legal Overview of Crimes Involving Moral Turpitude

Section 212(a)(2)(A) of the Immigration and Nationality Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime … is inadmissible.

There are however three exceptions to the inadmissibility triggered by Section 212(a)(2)(A):

  • Purely political offense:
    • Defined in DOS regulations at 22 CFR 20.41(a)(6).
    • Includes offenses that resulted in a conviction obviously based on fabricated charges or predicated on repressive measures against racial, religious, or political minorities.
  • INA  212(a)(2)(A)(ii)(I) (also referred to as the “Juvenile Offense Exception”):
    • Only 1 CIMT was committed, and
    • The alien was under age 18 at the time, and
    • The CIMT was committed and the alien was released (if confined) more than 5 years before the date of application for a visa, admission, or adjustment of status.
  • INA 212(a)(2)(A)(ii)(II) (also referred to as the “Petty Offense Exception”):
    • Only 1 CIMT was committed, and
    • The maximum penalty possible did not exceed 1 year, and
    • If convicted, the sentence imposed did not exceed 6 months (regardless of the time actually served).

[Read more…]

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.

Petty Offense Exception – When the I-601 Waiver or 212(d)(3) Waiver is Not Required

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Petty Offense Exception

Section 212 of the Immigration and Nationality Act [8 U.S.C. § 1182] sets forth classes of aliens who are inadmissible, including aliens who are convicted of certain crimes:

(a) Classes of Aliens Ineligible for Visas or Admission.  Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(2) Criminal and related grounds. –

(A) Conviction of certain crimes. –

(i) In general. -Except as provided in clauses (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or any attempt or conspiracy to commit such a crime…

Section 212(a)(2)(A)(i)(I) thus provides that aliens who have committed a crime involving moral turpitude are inadmissible.

However, Section 212(a)(2)(A)(ii) [§ 1182(a)(2)(A)(ii)] sets forth two exceptions:

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

Section 212(a)(2)(A)(ii) (emphasized by me in bold above) is referred to as the “petty offense exception”.  The practical effect of this exception is that applicants who are convicted of a single crime involving moral turpitude are not deemed inadmissible for a visa or admission into the United States if the single criminal conviction falls within this petty offense exception.

In other words, if Section 212(a)(2)(A)(ii) applies, then the I-601 waiver for intending immigrants (normally required to waive the ground of inadmissibility triggered by a conviction for a crime involving moral turpitude), or 212(d)(3) waiver for non-immigrants, is not needed.

In order to qualify for the petty offense exception, you must provide the actual state criminal statute clearly outlining the nature of the offense and the penalty at the time the offense was committed.  You must also submit the court record showing the final disposition of the case, that should include the charge and the sentence.  A legal memorandum clearly outlining your qualification for the petty offense exception is recommended.

I-601 Waiver Granted for Theft Charges Deemed Crimes of Moral Turpitude

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I-601 Waiver Granted for Theft Charges Deemed Crimes of Moral Turpitude

I-601 Waiver News

The applicant in this case is a native and citizen of the United Kingdom who was found to be inadmissible to the United States pursuant to section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of crimes involving moral turpitude.  The applicant was also found to be inadmissible to the United States under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), for having attempted to procure entry into the United States by fraud or willful misrepresentation.

The applicant is the spouse of a United States citizen.  The applicant sought a waiver of inadmissibility to reside in the United States with his wife.

On August 8, 1991, the applicant was convicted of theft and attempted theft in the United Kingdom.  He was sentenced to eight months in prison and two years probation.  On June 27, 2007, June 25, 2008, December 20, 2008, and December 13, 2009, the applicant entered the United States under the Visa Waiver Program and on the required Form I-94W the applicant answered “no” to the question, ”have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years.”

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

(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.

Section 212(a)(2)(A) of the Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime … is inadmissible.

“Willfully” misrepresenting a material fact

U.S. Citizenship and Immigration Services interprets the term ”willfully” as knowingly and intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the factual claims are true.  The AAO stated that in order to find the element of willfulness, it must be determined that the alien was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately misrepresented material facts. See generally Matter of G-G-, 7 I&N Dec. 161 (BIA 1956). To be willful, a misrepresentation must be made with knowledge of its falsity. 7 I&N Dec. at 164.

To determine whether a misrepresentation is willful, the AAO stated that it must examine the circumstances as they exist at the time of the misrepresentation, and they “closely scrutinize the factual basis” of a finding of inadmissibility for fraud or misrepresentation because such a finding ”perpetually bars an alien from admission.” Maller of Y-G-, 20 I&N Dec. 794, 796-97 (BIA 1994) (citing Matter of Shirdel, 19 I&N Dec. 33, 34-35 (BIA 1984)); see also Matter of Healy and Goodchild, 17 I&N Dec. 22, 28-29 (BIA 1979).

In this case, the AAO acknowledged that the term “moral turpitude” is not in common usage, and it is unlikely that the average person is aware of its meaning and application in U.S. immigration law.  The applicant did not disclose his conviction when asked about crimes involving moral turpitude, but did disclose his convictions when asked on his immigrant visa application about being charged, arrested, or convicted of any offense or crime.  The applicant has no education beyond the age of 16 years old and he claims to have misunderstood the question in regards to a “crime of moral turpitude”.

Given that the term “moral turpitude” is not in common usage together with the fact that the applicant did disclose his criminal convictions when asked the more general question regarding arrests and/or convictions, the AAO found that the applicant did not make a willful misrepresentation on his 1-94Ws or his DS-230. Thus, the AAO found that the applicant is not inadmissible under 212(a)(6)(C)(i) of the Act.

212(h) Waiver

Section 212(h) of the Act provides, in pertinent part:

The Attorney General [Secretary of Homeland Security] may, in his discretion, waive the application of subparagraph (A)(i)(I) … of subsection (a)(2) … if-

(1) (A) in the case of any immigrant it is established to the satisfaction of the Attorney General [Secretary] that —

(i) … the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status,

(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and

(iii) the alien has been rehabilitated; or

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General [Secretary) that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien … ; and

(2) the Attorney General [Secretary), in his discretion, and pursuant to such terms, conditions and procedures as be may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.

An application for admission to the United States is a continuing application, and admissibility is determined on the basis of the facts and the law at the time the application is finally considered. Matter of Alarcon, 20 I&N Dec. 557, 562 (BIA 1992).

In this case, since the criminal convictions for which the applicant was deemed inadmissible occurred more than 15 years ago, the AAO found that the inadmissibility can be waived under section 212(h)(1)(A) of the Act.

212(h) Waiver: “Not be contrary to the national welfare, safety, or security of the United States, and the alien been rehabilitated.”

However, Section 212(h)(1)(A) of the Act requires that the applicant’s admission to the United States not be contrary to the national welfare, safety, or security of the United States, and that he has been rehabilitated.

The AAO cited the following as persuasive in finding that his admission would not be contrary to the national welfare, safety, or security of the U.S., and that he has been rehabilitated:

  • Five letters of recommendation for the applicant attesting to his character and rehabilitation.
  • It has been 22 years since the applicant’s criminal conviction.
  • For the last 11 years the applicant has been working as a Reception/Security Officer at a university in the United Kingdom and is highly regarded by the students and professors who work with him.

212(h) Waiver: Discretionary Analysis

The AAO additionally found that the applicant merits a waiver of inadmissibility as a matter of discretion. 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 Maller of T- S-Y-, 7 I&N Dec. 582 (BIA 1957).

In evaluating whether section 212(h)(1)(B) 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
  • 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
  • other evidence attesting to the alien’s good character (e.g.,affidavits from family, friends and responsible community representatives)

See Maller of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).  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. ” Id at 300. (Citations omitted).

Citing the same favorable factors used to determine that the applicant’s admission would not be contrary to the national welfare, safety, or security of the United States, and that the alien has been rehabilitated, the AAO found that the applicant merited favorable discretion and approved his I-601 waiver.

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

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