Smart Immigration Lawyer

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

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

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.

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

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I-601A Provisional Waiver Processing In-Depth

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

NBC Background

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

Statistics

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

23,949 applications sent to Lockbox

17,996 applications accepted by Lockbox

5,953 application rejected by the Lockbox

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

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

The NBC has issued the following decisions:

3,497 approvals (59%)

2,292 denials (39%)

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

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

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

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I-601A Provisional Waiver Update and FOIA Filing Tips

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

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

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

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

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

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

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

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

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

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

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

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

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Application for Permission to Reapply for Admission Approved

I-212 Waiver and I-601 Waiver News

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

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

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

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

3. A waiver of inadmissibility under section 212(i) of the Act and under section 212(a)(9)(B)(v) of the Act is dependent on a showing that the bar to admission imposes extreme hardship on a qualifying relative, which includes the U.S. citizen or lawfully resident spouse or parent of the applicant.

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

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

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

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

I-601 Waiver Approved by AAO After Motion to Reopen and Reconsider Granted

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I-601 Waiver Approved by AAO Decision to Withdraw Previous Decision

I-601 Waiver Legal News

In an unusual decision, the AAO granted a motion to reopen and reconsider a prior AAO decision denying the I-601 waiver application filed by an applicant from Bangladesh.  It subsequently found sufficient extreme hardship and that a favorable exercise of discretion was warranted based on a balancing of the positive and negative of the case.

This case involves an applicant from Bangladesh who was found inadmissible to the United States pursuant to Section 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for having attempted to procure a visa to the United States through willful misrepresentation.  The applicant’s lawful permanent resident mother filed the Petition for Immediate Relative (Form I-130) using a false birth date for her son in order to qualify him for child immigration benefits.  The applicant did not correct this false birth date on his Application for Immigrant Visa and Alien Registration (DS-230)  and during the consular interview.  As a result, the applicant was deemed inadmissible under INA Section 212(a)(6)(C)(i) of the , and required a waiver under section 212(i) of the INA.

The Field Office Director, Bangkok, Thailand, concluded the applicant failed to establish extreme hardship would be imposed upon a qualifying relative, and denied his Application for Waiver of Grounds of Inadmissibility (Form 1-601).  The AAO dismissed the applicant’s appeal and affirmed the Field Office Director’s decision.

According to 8 C.F.R. § 103.5(a)(2), a motion to reopen must state the new facts to be proved and be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2).  A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy.  A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3).  The motion to reopen and reconsider was granted in this matter based on arguments presented by counsel and new evidence submitted.

The key points to take away from this this case are the following:

  • The role of non-qualifying relatives: The applicant’s brother is a non-qualifying relative for the purposes of the I-601 waiver.  However, he is the sole bread-winner for this family and supports the LPR mother, who is the qualifying relative; his own wife and children; and sends remittances to the applicant in Bangladesh.  The applicant’s brother works long hours as a street vendor, whose income has dropped substantially since 2009 and earns below  the poverty guidelines set forth by the DHS.  Thus, the financial hardship suffered by the mother (who is supported by the brother) would be alleviated if the applicant is admitted and can contribute to the family income.  Alternatively, the applicant can stay home and take care of his mother and brother’s children, while his brother’s wife obtains a job.
  • Proven medical hardship that worsens over time: The applicant’s mother appears to suffer from various physical and psychological ailments, including being diagnosed with Major Depressive Disorder.  In support of these contentions, two letters from physicians were submitted stating that the mother is “persistently experiencing physical and emotional symptoms, which dramatically restrict her ability to function independently, and make her dependent on others”; and that the applicant’s mother’s medication conditions “are currently in stable condition, however she needs psychiatric follow-up for current non-urgent mental status.”  These conditions appear to shown as worsening over time, thus validating the assertions made in the initial I-601 waiver application.

Additional favorable factors in finding extreme hardship includes the elderly age of the mother, her need to maintain lawful permanent residence status, her length of residence and strong ties to the U.S., her ongoing medical treatments, and the social conditions in Bangladesh,

Based on a finding of extreme hardship and that the favorable factors outweighed the negative factors in this case, the I-601 waiver was approved.

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

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

I-601 Waiver News

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

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

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

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

Section 212(i) provides, in pertinent part:

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

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

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

In this case, the favorable factors are the following:

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

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

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

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

I-601 Extreme Hardship Waiver Approved by AAO for Chinese National

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I-601 Extreme Hardship Waiver Approved by AAO for Chinese National

I-601 Waiver News

The applicant in this case is a native and citizen of China who was found to be inadmissible to the United States under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. §1182(a)(6)(C)(i), for having attempted to procure a visa, other documentation, or admission into the United States by fraud or willful misrepresentation.

Specifically, the applicant attempted to procure entry to the United States in 1992 by presenting a photo-substituted Taiwanese passport.

The applicant sought a waiver of inadmissibility pursuant to section 212(i) of the Act, 8 U.S.C. §.1182(i), in order to reside in the United States with her U.S. citizen spouse and children, born in 1997 and 1999 .  The AAO sustained the applicant’s appeal and granted the I-601 extreme hardship waiver.

The take-away from this case is that whenever a Chinese applicant is involved, you should ALWAYS cite China’s one child policy and the repercussions likely to occur to the applicant and U.S. citizen or lawful permanent resident relative.  Governmental policies in other countries that are  likely to cause extreme hardship to the family upon relocation should also be described and documented.

Additionally, the psychosocial evaluation should ideally describe the integral, essential, vital, and leading role of the applicant in the life of the family (and the disruption that will occur without the applicant’s presence in the U.S.)  This dynamic should be corroborated by affidavits from family members, extended relatives, friends, and others with direct knowledge of the situation.

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

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

(ii) Waiver authorized. – For provision authorizing waiver of clause (i), see subsection (i).

Section 212(i) of the Act provides:

(1) The Attorney General [now the Secretary of Homeland Security (Secretary)] may, in the discretion of the Attorney General [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  Attorney General [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 are as follow:

  • There is  a close resemblance in this case to the fact pattern found in the oft-cited Matter of Kao and Lin, 23 I&N Dec. 25 (BIA 2001).  In Matter of Kao and Lin, the Board of Immigration Appeals found that a fifteen-year old child who lived her entire life in the U.S., who was completely integrated into the American lifestyle, and who was not fluent in Chinese, would suffer extreme hardship if she relocated to Taiwan.
  • In this case, the applicant’s children are currently in their teens and fully integrated into the United States lifestyle and educational system.  To uproot them at this stage in their education and social development would constitute extreme hardship to them, and by extension, to the applicant’s U.S. citizen spouse.
  • The U.S. citizen spouse has been residing in the United States for over 10 years.  He would have to leave his gainful employment, family members, and his community.  His sister and uncle reside in the U.S.
  • The U.S. citizen spouse and the applicant have been together since 1995 and they are an integral part of each other’s life.
  • The U.S. citizen spouse works  long hours as a Japanese cook.  However, Japanese food is not popular in China. Alternatively, he states that in order to get a job as a cook in China, he would have to get a license.  To become a manager in a restaurant in China, he would need a college degree.
  • He needs his wife by his side to take care of him and his daughters.  He cannot raise his daughters on his own since his wife has been the primary caregiver.
  • The U.S. citizen spouse would suffer a financial shortfall without his wife’s presence in the U.S. and be unable to afford long-distance phone calls and trips to China to visit his wife.
  • Affidavits from the U.S. citizen husband, applicant, and daughters corroborate the above statements and outline the role the mother plays in their daily lives and family dynamics.
  • A psychosocial diagnostic evaluation details that the U.S. citizen spouse is suffering from Adjustment with Mixed Anxiety and Depressed Mood precipitated by his wife’s immigration situation.  The evaluation further states that the applicant is one of the chief designers and implementers of the family life, is essential to the close-knit family unit and vital to the lives of her husband and children.
  • Medical documentation states the U.S. citizen spouse has Hepatitis B and needs continued treatment
  • Financial documentation establishes the role the applicant plays in the finances of the household, earning approximately $180 per week
  • Because the U.S. citizen and his wife have two daughters, the applicant would be sterilized in China due to the one child policy.  An additional fee would be imposed for their two daughters to attend school in China.
  • Affidavits from extended family corroborate the hardships the U.S. citizen husband would face without his wife’s presence in the U.S., or alternatively, if he were to relocate to China with the children.
  • The applicant has significant community ties to the U.S.; has been gainfully employed in the U.S.; has paid taxes; and more than twenty years have passed since she sought to procure entry to the U.S. using fraud or misrepresentation

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

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

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.

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