Inadmissibility - Page 3 of 13 - Smart Immigration Lawyer

I-601 Waiver Pursuant to INA 212(h) Approved for South Korean Applicant

April 25, 2017 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a client who was subject to a lifetime ban from being admitted to the United States pursuant to INA 212(a)(2)(A)(i)(I). Our client was charged and convicted of misappropriating monies from the bank account of another individual in 1998, for which offense she was fined the equivalent of USD$2000, which fine she has paid. That conviction triggered the lifetime inadmissibility bar pursuant to INA 212(a)(2)(A)(i)(I) “Crimes involving moral turpitude.”

The U.S. citizen sibling petitioner contacted me after her sister was denied admission to the U.S. following her consular interview at the U.S. embassy in Seoul, South Korea. A comprehensive waiver package was subsequently prepared by our office based on the fact that more than 15 years have passed since she was convicted of criminal offense in her home country of South Korea; the clear evidence that her admission would not be contrary to the national welfare, safety or security of the United States; and that she has been fully rehabilitated.

Legal Requirements of the § 212(h) Waiver

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))

INA 212(h)(1)(A) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), and (E) of the Act may be waived in the case of an alien who demonstrates to the satisfaction of the Attorney General that:

the activities for which she is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of status;
the admission would not be contrary to the national welfare, safety, or security of the U.S.; and
the alien has been rehabilitated;

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:

has a parent, spouse, son, or daughter who is a U.S. citizen or lawful permanent resident of the United States; and
the parent, spouse, son, or daughter would suffer “extreme hardship” on account of the alien’s ineligibility to immigrate

Waiver applicants must also show that their application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in his or her case.

In support of my client’s I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards of INA 212(h)(1)(A).

I thoroughly demonstrated that my client was rehabilitated and her admission not contrary to the national welfare, safety, or security of the U.S., based upon her long-history as a successful small business owner; her membership and participation in various church and charitable programs; as well as her selfless dedication to the education of her children, which played an integral role in allowing her son to attend medical school after the death of his father.

I showed that following her conviction and later, after the death of her husband, she reached a profound “turning point” in her life. She was baptized into the Christian faith and became a devout and ardent member of her church. She committed herself to a number of charitable activities while also working tirelessly to support her children and their education. Her conduct as well as a myriad of affidavits by friends, colleagues, and family proved that she posed absolutely no risk to the safety or welfare of the U.S., and in fact, would contribute to it if admitted as a permanent resident.

It is often important in waiver applications to demonstrate (when possible) an important turning point in an applicant’s life, which provides a marker that the USCIS officer can point to and remember has having effected a fundamental change in the applicant’s outlook and conduct.

An extensive table of exhibits also listed a variety of evidence in support of a showing of good moral character and rehabilitation.

As a result of our efforts, our client was approved for the 601 waiver and subsequently, received her lawful permanent residence to join her family in the United States.

USCIS Expansion of the I-601A Provisional Waiver Program In-Depth

August 11, 2016 By Michael Cho Immigration Lawyer Leave a Comment

Selected discussions on the recent expansion of the I-601A Provisional Waiver process by the USCIS follow below:

The provisional unlawful presence waiver (“provisional waiver”) process allows certain individuals who are present in the United States to request from U.S. Citizenship and Immigration Services (USCIS) a provisional waiver of these grounds of inadmissibility before departing the United States for consular processing of their immigrant visas – rather than applying for a waiver abroad after their immigrant visa interviews using the Form I-601, Waiver of Grounds of Inadmissibility (“Form I-601 waiver process”).

The provisional waiver process is designed to encourage unlawfully present individuals to leave the United States, attend their immigrant visa interviews, and return to the United States legally to reunite with their U.S. citizen or lawful permanent resident (LPR) family members.

Having an approved provisional waiver helps facilitate immigrant visa issuance at DOS, streamlines both the waiver and the immigrant visa processes, and reduces the time that applicants are separated from their U.S. citizen or LPR family members, thus promoting family unity.

Generally, individuals who are in the United States and seeking lawful permanent resident (LPR) status must either obtain an immigrant visa abroad through what is known as “consular processing” with the Department of State (DOS) or apply to adjust their immigration status to that of an LPR in the United States, if eligible. Individuals present in the United States without having been inspected and admitted or paroled are typically ineligible to adjust their status in the United States.

To obtain LPR status, such individuals must leave the United States for immigrant visa processing at a U.S. Embassy or consulate abroad. But because these individuals are present in the United States without having been inspected and admitted or paroled, their departures may trigger a ground of inadmissibility based on the accrual of unlawful presence in the United States under INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i).

Under subclause (I) of this provision, an individual who has been unlawfully present in the United States for more than 180 days but less than one year, and who then departs voluntarily from the United States before the commencement of removal proceedings, is inadmissible for 3 years from the date of departure. See INA section 212(a)(9)(B)(i)(I), 8 U.S.C. 1182(a)(9)(B)(i)(I).

Under subclause (II), an individual who has been unlawfully present in the United States for one year or more and then departs the United States (before, during, or after removal proceedings), is inadmissible for 10 years from the date of the departure. See INA section 212(a)(9)(B)(i)(II), 8 U.S.C. 1182(a)(9)(B)(i)(II).

These “3- and 10-year unlawful presence bars” do not take effect unless and until the individual departs from the United States. See, e.g., Matter of Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 2006).

The Secretary of Homeland Security (Secretary) may waive this ground of inadmissibility for an individual who can demonstrate that the refusal of his or her admission to the United States would result in extreme hardship to his or her U.S. citizen or LPR spouse or parent. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v).

Prior to the creation of the provisional waiver process in 2013, any individual who was seeking an immigrant visa and became inadmissible under the 3- or 10-year unlawful presence bar upon departure from the United States, could apply for a waiver of such inadmissibility from DHS by filing an Application for Waiver of Grounds of Inadmissibility, Form I-601, with USCIS, but only after having attended the consular immigrant visa interview abroad. Those who applied for waivers under this “Form I-601 waiver process” were effectively required to remain abroad for at least several months while USCIS adjudicated their waiver applications.

For some individuals, the Form I-601 waiver process led to lengthy separations of immigrant visa applicants from their family members, causing some U.S. citizens and LPRs to experience the significant emotional and financial hardships that Congress aimed to avoid when it authorized the waiver. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) (providing for an inadmissibility waiver, “if it is established to the satisfaction of the Attorney General 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”).

For this reason, many relatives of U.S. citizens and LPRs who are eligible to obtain LPR status may be reluctant to travel abroad to seek immigrant visas and obtain such status. The Form I-601 waiver process also created processing inefficiencies for both USCIS and DOS through repeated interagency communication and through multiple consular appointments or interviews.

On July 22, 2015, DHS proposed to expand the class of individuals who may be eligible for provisional waivers beyond certain immediate relatives of U.S. citizens to all statutorily eligible individuals regardless of their immigrant visa classification. DHS also proposed to expand the class of individuals who could obtain provisional waivers, consistent with the statutory waiver authority, by permitting consideration of extreme hardship not only to U.S. citizen spouses or parents, but also to LPR spouses or parents.

In this final rule, DHS adopts the changes discussed in the proposed rule with several modifications in response to comments submitted on the proposed rule. The new modifications include:

1) Clarifying that all individuals seeking provisional waivers, including those in removal proceedings before the Executive Office for Immigration Review (EOIR), must file applications for provisional waivers with USCIS.

2) Allowing individuals to apply for provisional waivers even if USCIS has a reason to believe that they may be subject to other grounds of inadmissibility.

3) Eliminating the proposed temporal limitations that would have restricted eligibility for provisional waivers based on DOS visa interview scheduling.

4) Allowing individuals with final orders of removal, exclusion, or deportation to be eligible for provisional waivers provided that they have already applied for, and USCIS has approved, an Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I-212.

5) Clarifying that DHS must have actually reinstated a removal, deportation, or exclusion order in order for an individual who has returned to the United States unlawfully after removal to be ineligible for a provisional waiver on that basis.

In addition, DHS made several technical and non-substantive changes.

Newly eligible provisional waiver applicants and their U.S. citizen or LPR family members will benefit from this rule. Those applying for provisional waivers will receive advance notice of USCIS’ decision to provisionally waive their 3- or 10-year unlawful presence bar before they leave the United States for their immigrant visa interview abroad. This offers applicants and their family members the certainty of knowing that the applicants have been provisionally approved for waivers of the 3- and 10-year unlawful presence bars before departing from the United States.

Individuals with approved provisional waivers may experience shortened periods of separation from their family members living in the United States while they pursue issuance of immigrant visas abroad, thus reducing any related financial and emotional strains on the families.

Eligibility for the Provisional Waiver

1. Categories of Eligible Individuals

The Secretary is authorized to waive the 3- and 10-year unlawful presence bars for individuals seeking admission to the United States as immigrants if they can show that the refusal of admission would result in extreme hardship to a qualifying U.S. citizen or LPR spouse or parent, and provided that the applicant warrants a favorable exercise of discretion. See INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v).

With this final rule, DHS is allowing all individuals who are statutorily eligible for an immigrant visa and who meet the legal requirements for a waiver under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), to seek a provisional waiver in accordance with new 8 CFR 212.7(e). Consistent with the current provisional waiver process, provisional waivers are available only to those who are present in the United States, who must apply for immigrant visas at U.S. embassies or consulates abroad, and who at the time of the immigrant visa interview may be inadmissible based on the accrual of unlawful presence under INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i).

DHS can only expand the pool of individuals eligible for this process to those who fall within one of the current statutory immigrant visa classifications and who meet the requirements for the unlawful presence waiver described in INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). DHS cannot expand eligibility to those who are not statutorily eligible for such waivers under current law.

Similarly, DHS cannot change who is statutorily eligible to adjust status in the United States. Intending immigrants who are present in the United States but ineligible to adjust status must depart the United States and obtain their immigrant visas through consular processing abroad; approval of a provisional waiver does not change this requirement. See INA sections 104, 202(a)(1)(B), 211, 221, 222 and 245; 8 U.S.C. 1104, 1152(a)(1)(B), 1181, 1201, 1202, and 1255. See generally 8 CFR part 245; 22 CFR part 42.

To clarify, in the proposed rule, DHS sought to include all beneficiaries of approved immigrant visa petitions who are statutorily eligible for a waiver of the 3- and 10-year unlawful presence bars, regardless of age, marital status, or immigration status. Individuals with approved immigrant visa petitions, including sons and daughters (married or unmarried) of U.S. citizens, as well as those who have been selected to participate in the Diversity Visa program, may participate in the provisional waiver process provided they meet the requirements stated in 8 CFR 212.7(e). Consistent with its statutory authority under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), DHS will no longer limit the provisional waiver process to certain immediate relatives of U.S. citizens.

2. Reason-to-Believe Standard

DHS has decided to eliminate the reason-to-believe standard as a basis for denying provisional waiver applications. Accordingly, when adjudicating such applications, USCIS will only consider whether extreme hardship has been established and whether the applicant warrants a favorable exercise of discretion.

However, although this final rule eliminates the reason-to believe standard, the final rule retains the provision that provides for the automatic revocation of an approved provisional waiver application if the DOS consular officer ultimately determines that the applicant is ineligible for the immigrant visa based on other grounds of inadmissibility. See 8 CFR 212.7(e)(14)(i).

DHS thus cautions and reminds individuals that even if USCIS approves a provisional waiver application, DOS may still find the applicant inadmissible on other grounds at the time of the immigrant visa interview. If DOS finds the applicant ineligible for the immigrant visa or inadmissible on grounds other than unlawful presence, the approval of the provisional waiver application is automatically revoked. In such cases, the individual may again apply for a waiver of the unlawful presence ground of inadmissibility, in combination with any other waivable grounds of inadmissibility, by using the Form I-601 waiver process.

As in all discretionary matters, DHS also has the authority to deny provisional waiver applications as a matter of discretion even if the applicant satisfies the eligibility criteria. See 8 CFR 212.7(e)(2)(i). Additionally, USCIS may reopen and reconsider its decision to approve or deny a provisional waiver before or after the waiver becomes effective if it is determined that the decision was made in error. See 8 CFR 212.7(e)(13) and 8 CFR 212.7(a)(4)(v).

As has always been the case, DHS will continue to uphold the integrity and security of the provisional waiver process by conducting full background and security checks to assess whether an individual may be a threat to national security or public safety. If the background check or the individual’s immigration file reveals derogatory information, including a criminal record, USCIS will analyze the significance of the information and may deny the provisional waiver application as a matter of discretion.

Finally, the extreme hardship and discretionary eligibility assessments made during a provisional waiver adjudication could be impacted by additional grounds of inadmissibility and other information that was not known and therefore not considered during the adjudication.

Accordingly, USCIS is not bound by these determinations when adjudicating subsequent applications filed by the same applicant, such as an application filed to waive grounds of inadmissibility, including a waiver of the unlawful presence grounds of inadmissibility. In other words, because separate inadmissibility grounds and material information not before USCIS at the time of adjudication may alter the totality of the circumstances present in an individual’s case, a prior determination that an applicant’s U.S. citizen or LPR spouse would suffer extreme hardship if the applicant were refused admission (and that the applicant merits a provisional waiver as a matter of discretion) does not dictate that USCIS must make the same determination in the future, although the factors and circumstances underlying the prior decision may be taken into account when reviewing the cases under the totality of the circumstances.

3. DHS is eliminating the restrictions based on the date that DOS acted to schedule the immigrant visa interview.

USCIS will adjust its processing of petitions and applications so that neither DOS nor USCIS will be adversely affected by the elimination of this restriction. Please note, however, that elimination of these date restrictions does not alter other laws and regulations relating to the availability of immigrant visas. Applicants will still be unable to obtain immigrant visas until an immigrant visa number is available based on the applicant’s priority date. Applicants will need to act promptly, once DOS notifies them that they can file their immigrant visa application. If applicants do not apply within one year of this notice, DOS has authority to terminate their registration for an immigrant visa. See INA section 203(g), 8 U.S.C. 1153(g); see also 22 CFR 42.8(a). That action will also result in automatic revocation of the approval of the related immigrant visa petition. 8 CFR 205.1(a)(1).

In such a situation, applicants will have two options for continuing to pursue a provisional waiver. One option is for an applicant to ask DOS to reinstate the registration pursuant to 22 C.F.R. 42.83(d). If DOS reinstates the registration, approval of the immigrant visa petition is also reinstated. Once such an applicant has paid the immigrant visa processing fee for the related immigrant visa application, the applicant can apply for a provisional waiver. A second option is for the relevant immigrant visa petitioner to file a new immigrant visa petition with USCIS. If USCIS approves the new immigrant visa petition, the beneficiary could then apply for the provisional waiver after paying the immigrant visa processing fee based on the new petition if otherwise eligible.

4. Individuals in Removal Proceedings

On November 20, 2014, the Secretary directed the Department’s immigration components—USCIS, ICE, and CBP—to exercise prosecutorial discretion, when appropriate, as early as possible in proceedings to ensure that DHS’s limited resources are devoted to the greatest degree possible to the pursuit of enforcement priorities. Prosecutorial discretion applies not only to the decision to issue, serve, file, or cancel an NTA, but also to other broad
ranges of discretionary measures. To promote docket efficiency and to ensure that finite enforcement resources are used effectively, ICE carefully reviews cases pending before the Department of Justice’s Executive Office for Immigration Review (EOIR) to ensure that all cases align with the agency’s enforcement and removal policies. As such, once an NTA is issued, ICE attorneys are directed to review the case, at the earliest opportunity, for the potential exercise of prosecutorial discretion.

The Department of Justice (DOJ) likewise instructs its immigration judges to use available docketing tools to ensure fair and timely resolution of cases, and to ask ICE attorneys at master calendar hearings whether ICE is seeking dismissal or administrative closure of a case. In general, those who are low priorities for removal and are otherwise eligible for LPR status may be able to apply for provisional waivers. Among other things, ICE may agree to administratively close immigration proceedings for individuals who are eligible to pursue a provisional waiver and are not currently considered a DHS enforcement priority. ICE also works to facilitate, as appropriate, the timely termination or dismissal of administratively closed removal proceedings once USCIS approves a provisional waiver.

DHS believes the aforementioned steps being undertaken by ICE and EOIR to determine whether cases should be administratively closed effectively balances the commenters’ provisional waiver eligibility concerns and agency resources in considering the exercise of prosecutorial discretion. Consequently, this rule has not changed the provisional waiver process and will not permit individuals in active removal proceedings to apply for or receive provisional waivers, unless their cases are administratively closed. The Department believes that current processes provide ample opportunity for eligible applicants to seek a provisional waiver, while improving the allocation of government resources and ensuring national security, public safety, and border security.

5. Individuals Subject to Final Orders of Removal, Deportation, or Exclusion

As a preliminary matter, DHS notes that requiring the filing of separate Forms I-601A and I-212 simply reflects the fact that they are intended to address two separate grounds of inadmissibility, each with different waiver eligibility requirements. In response to the comments, however, DHS has amended the rule to allow individuals with final orders of removal, deportation, or exclusion to apply for provisional waivers if they have filed a Form I- 212 application seeking consent to reapply for admission and such an application has been conditionally approved.

Anyone who departs the United States while a final order is outstanding is considered to have executed that order. See INA section 101(g), 8 U.S.C. 1101(g); 8 CFR 241.7. The execution of such an order renders the individual inadmissible to the United States for a period of 5-20 years under INA section 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A). Certain individuals, however, may seek consent to reapply for admission to the United States before the period of inadmissibility has expired. See INA section 212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii).

DHS regulations provide a process for those in the United States to apply for such consent by filing a Form I-212 application before departing the United States. See 8 CFR 212.2(j). As with the provisional waiver process, the pre-departure approval of a Form I-212 application is conditioned on the applicant subsequently departing the United States.

Thus, if an individual who is inadmissible under INA section 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A), obtains a conditional approval of his or her Form I-212 application while in the United States and thereafter departs to attend the immigrant visa interview abroad, he or she generally is no longer inadmissible under that section at the time of the immigrant visa interview and can be issued an immigrant visa.

Given that an applicant still has to demonstrate visa eligibility, including admissibility, at the time of the immigrant visa interview and that DHS has decided to eliminate the reason-to-believe standard, the Department believes the goals of the provisional waiver process are supported by making it available to those with final orders only if they already have conditionally approved a Form I-212 application. The final rule thus extends eligibility for provisional waivers to such individuals. See 8 CFR 212.7(e)(4)(iv).

Such an individual, however, must have the conditionally approved Form I-212 application at the time of filing the provisional waiver application. See 8 CFR 212.7(e)(4)(iv). USCIS will deny a provisional waiver application if the applicant’s Form I-212 application has not yet been conditionally approved at the time the individual files his or her provisional waiver application. Additionally, if during the immigrant visa interview the consular officer finds that the applicant is inadmissible on other grounds that have not been waived, the approved provisional waiver will be automatically revoked. See 8 CFR 212.7(e)(14)(i).

Finally, DHS notes that approval of Forms I-601A and I-212 does not waive inadmissibility under INA section 212(a)(9)(C), 8 U.S.C 1182(a)(9)(C), for having returned to the United States without inspection and admission or parole after a prior removal or prior unlawful presence. See INA section 212(a)(9)(C)(ii), 8 U.S.C 1182(a)(9)(C)(ii); Matter of Briones, 24 I&N Dec. 355 (BIA 2007); Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006).

6. Individuals Granted Voluntary Departure

DHS has determined that individuals granted voluntary departure will not be eligible for provisional waivers. First, if an individual obtains voluntary departure while in removal proceedings, the immigration judge is required by law to enter an alternate order of removal. See 8 CFR 1240.26(d). DHS cannot execute the alternate order of removal during the voluntary departure period because such an order is not yet in effect. But if the individual does not depart as required under the order of voluntary departure, the alternate order of removal automatically becomes fully effective without any additional proceeding. See 8 CFR 1240.26(d). Thus, an individual who fails to leave as required under a grant of voluntary departure will have an administratively final order of removal, and will thus be ineligible for a provisional waiver. See INA section 240B(d)(1), 8 U.S.C. 1229c(d)(1); 8 CFR 212.7(e)(4)(iv).

Under current law, removal proceedings for such individuals are considered to have ended when the grant of voluntary departure, with an alternate removal order, becomes administratively final. See INA sections 101(a)(47), 240(c)(1)(A), 8 U.S.C. 1101(a)(47), 1229(a)(c)(1)(A); 8 CFR 241.1, 1003.39, 1241.1; Matter of Shih, 20 I&N Dec. 697 (BIA 1993).

Second, a fundamental premise for a grant of voluntary departure is that the individual who is granted voluntary departure intends to leave the United States as required. See INA section 240B(b)(1)(D), 8 U.S.C. 1229c(b)(1)(D); Dada v. Mukasey, 554 U.S. 1, 18 (2008). Allowing an individual whose voluntary departure period has not expired to apply for a provisional waiver would suggest that the individual is excused from complying with the order of voluntary departure. This result would contradict the purpose of voluntary departure— allowing the subject to leave promptly without incurring the future inadmissibility that results from removal. For these reasons, DHS did not modify the rule to allow those with grants of voluntary departure to apply for provisional waivers.

Peruvian Wife Approved for I-601 “Unlawful Presence” Waiver Based on Extreme Hardship

July 11, 2016 By Michael Cho Immigration Lawyer Leave a Comment

We recently received approval of the I-601 “Extreme Hardship” Waiver for the Peruvian wife of a U.S. citizen who was found to be inadmissible under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (INA), 8 U.S.C. §1182(a)(9)(B)(i)(II), for having been unlawfully present in the United States for more than one year before departing the U.S. for her home country of Peru.

That section of the INA reads:

(B) Aliens Unlawfully Present

(i) In general. – Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States . . . and again seeks admission within 3 years of the date of such alien’s departure or removal, or

(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.

We prepared the I-601 waiver pursuant to INA 212(a)(9)(B)(v) of the INA, 8 U. S.C. § 1182(a)(9)(B)(v). Section 212(a)(9)(B)(v) of the Act provides for a waiver of section 212(a)(9)(B)(i) inadmissibility as follows:

The Attorney General [now Secretary of Homeland Security] 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 . . . 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.

A waiver of inadmissibility 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. Hardship to the applicant and his children can be considered only insofar as it results in hardship to a qualifying relative. The applicant’s U.S. citizen spouse is the only qualifying relative in this case. If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

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. Id. 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. Id. at 566.

The Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245,246-47 (Comm’r 1 984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though 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-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.” Id.

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, etcetera, differs 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 Twi 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). For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. See Salcido-Salcido, 138 F.3d 1292, 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).

Therefore, the AAO considers the totality of the circumstances in determining whether denial of admission would result in extreme hardship to a qualifying relative.

In order to secure approval of this I-601 “unlawful presence” waiver, we prepared a comprehensive 30-page legal memorandum (the I-601 “waiver letter”) that includes in-depth discussion of waiver case law that supports approval of our client’s case.

As we do with all of our waiver cases, we initially provided a Waiver Worksheet to our clients which contains a thorough list of questions for our clients answer and return to us. The answers provided by our clients help us identify the most important hardship and discretionary factors to be presented to the USCIS in our waiver package.

Our Waiver Worksheet also contains a checklist of suggested documents for our clients to gather. The questions on our Waiver Worksheet and the checklist of supporting documents is regularly updated and reflects our knowledge of the best ways to secure approval of I-601, I-212, and 212(d)(3) waivers. Our knowledge in the specialized field of immigration waivers for grounds of inadmissibility has been earned through over 12 years of successfully obtaining waiver approvals on behalf of our clients located throughout the world.

In this case, we also performed detailed country conditions research to demonstrate that the U.S. citizen husband would suffer a variety of hardships if he is forced to move to Peru to reside with his wife. We cited respected sources and journals such as Peru Economic Outlook; The Heritage Foundation’s Index of Economic Freedom; The World Bank Group; and the United States Department of State – Bureau of Consular Officers, to establish the financial, medical, and physical hardships and risks the U.S. citizen husband and his wife would be subject toif they were forced to reside in Peru due to the applicant’s inadmissibility. We particularly stressed the physical dangers inherent in residing long-term in Peru since the Peruvian wife has already been the victim of kidnapping.

Other special factors presented that supported approval of this I-601 waiver includes:

The U.S. citizen husband has joint-custody over a son who resides in the United States. He makes regularl child support payments and maintains a close relationship with his child. Re-location to Peru would endanger our client’s ability to make child support payments and effectively sever the father-son relationship for the severe detriment of both parties.
The U.S. citizen husband carries significant financial debt, recently lost his job, and suffers from medical conditions that prevent him from continuing with the physical labor inherent in his chosen occupation. He requires his wife’s daily support and financial assistance in the United States so that he can transition to a different career given his vulnerable physical condition.
The U.S. citizen husband is suffering crippling levels of anxiety during his wife’s absence from the United States. His wife’s kidnapping (which occurred several years ago when she last resided in Peru) makes him especially worried for her safety.

As a result of the I-601 “unlawful presence” waiver package we prepared on behalf of our clients, this waiver application was approved by the USCIS. The Peruvian wife can now lawfully residence inside the United States as a U.S. lawful permanent resident, and apply for naturalization to U.S. citizenship in about 3 years.

Client Approval: I-601 Waiver for Fraud/Misrepresentation Approved for Same Sex Couple

July 8, 2016 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for an Indian client in a same sex marriage who is subject to a life-time bar for fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

INA Section 212(a)(6)(C)(i) states:

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.

Our client entered the U.S. lawfully on a valid non-immigrant visa and has remained in the United States for over 17 years. During his stay in the U.S., he married a U.S. citizen and applied for Adjustment of Status to permanent residence. He inadvertently failed to disclose a prior marriage he entered into for a short period of time in his Adjustment of Status package. He was consequently charged with fraud/misrepresentation pursuant to INA Section 212(a)(6)(C)(i). He subsequently divorced his spouse, met and married his current same-sex spouse, and applied again for Adjustment of Status.

”Extreme hardship” 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.

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. Id. 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. Id . at 566.

The Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though 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 0-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.” Id.

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (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).

Therefore, the AAO considers the totality of the circumstances in determining whether denial of admission would result in extreme hardship to a qualifying relative.

We prepared a comprehensive I-601 waiver application including a 34 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship.” We also thoroughly discussed and presented evidence of the U.S. citizen spouse’s unique background which made him particularly vulnerable to medical and psychological hardship. This includes the suicide of his father; the drug addiction of his brother; rejection by his family of his sexual orientation; as well as the psychological breakdown these events triggered and that he has suffered from throughout his adult life.

This case was also challenging because the waiver applicant was previously married to members of the opposite sex in the past. We went beyond the legal standard of extreme hardship to prove the validity and genuine nature of this same sex marriage, and the vital and loving role each spouse plays in ensuring the other’s welfare and well-being.

The supporting documents submitted as part of this I-601 waiver application included:

Medical history and diagnosis of the U.S. citizen spouse, including the possibility of a life-threatening medical crisis in the future
Psycho-social evaluation of the U.S. citizen spouse which confirms his Dysthymic Disorder and Generalized Anxiety Disorder
Proof of significant financial debt owed by the household and the minimal income earned by the U.S. citizen spouse before meeting and marrying his current spouse
Proof of academic achievement and professional accomplishments of the Indian spouse, demonstrating his good moral character and his history of contribution to the economy of the United States
Detailed break-down of the family’s household income, expenses and debt/liabilities
Proof of financial support provided by the married couple to the elderly mother of the Indian spouse (a U.S. lawful permanent resident), who financially relies on the couple for all of her basic needs
Detailed country conditions of India, particularly as it relates to income, job opportunities, medical care, mental health treatment, stigma against homosexuality, and its non-recognition of same sex marriages.
Letters of good moral character and rehabilitation for the Indian spouse

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this same-sex couple will be able to live together lawfully in the United States and provide support to an elderly mother in need.

I-601A Provisional Waiver Approved for Nicaraguan Based on Psychological & Financial Hardships

April 27, 2016 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601A Provisional Waiver for a Nicaraguan applicant married to a U.S. citizen wife. As part of the Provisional Waiver process, we first provided our clients with a detailed letter going over every step of the immigrant visa process (including a checklist of supporting documents to gather and return to our office). We then expeditiously prepared the I-130 Petition for Alien Relative and filed it with the USCIS on behalf of our clients.

The I-130 Petition for Alien Relative was approved by the USCIS approximately 5 months after submission by our office. About 1 month after USCIS approval of the I-130 Petition, the National Visa Center received the approved immigrant visa case from the USCIS and issued its Immigrant Visa and Affidavit of Support fee bills. After payment of the Immigrant Visa fee by the applicant, our office submitted the I-601 Provisional Waiver application package which included: a complete set of USCIS forms requesting consideration for the I-601A Provisional Waiver; a 31 page waiver statement detailing relevant case law favorable to my client’s situation and presenting the extreme hardships that applied to this case; and a comprehensive collection of exhibits to prove the extreme hardships being presented.

Approval of the I-601 Provisional Waiver application was received just 4 months after submission by our office.

The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in 8 CFR 212.7(e) and warrant a favorable exercise of discretion.

To be eligible for the I-601A Provisional Waiver for Unlawful Presence, you must fulfill ALL of the following conditions:

Be 17 years of age or older.
Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
Have a pending immigrant visa case with the Dept. of State for the approved immediate relative petition and have paid the Dept. of State immigrant visa processing fee.
Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
Not have been scheduled for an immigrant visa interview by Dept. of State before January 3, 2013.
You are inadmissible ONLY for unlawful presence in the United States for more than 180 days but less than 1 year during a single stay (INA Section 212(a)(9)(B)(i)(I)), or unlawful presence in the United States for 1 year or more during a single stay (INA Section 212(a)(9)(B)(i)(II).

In this case, the applicant is a Nicaraguan national who entered the United States without inspection to earn money and support his mother back in his home country. The favorable factors of this case includes some of the following:

The Nicaraguan husband has extensive familial ties in the United States including his daughter, his father, his step-mother, his paternal grandmother, his uncles, and several nephews and nieces, all of whom reside legally in the U.S.
The U.S. citizen wife is responsible for the daily living and medical needs of her ill mother, who suffers from severe hearing loss and has a long history of mental illness. She also assists her mother financially as best she can.
The married couple have a significant amount of debt and the Nicaraguan husband’s monthly income constitutes over 50% of the family’s total monthly income. Without the money the husband earns, the U.S. citizen wife would default on her mortgage, student loans, and credit card debt, as well as on the secured loans on their car and house.
The U.S. citizen wife has a history of serious illness that required surgery in the past. She needs regular check-ups as her illness may return.
The Nicaraguan husband has no criminal record, volunteers at his local church, and has a history of productive employment in the U.S.
The psychological state of the U.S. citizen wife is fragile and she risks serious mental decompensation and psychotic symptoms should she be separated from husband.
The married couple have an infant daughter who they raise together who would also be impacted emotionally by re-location or separation from her father.
Re-location of the family to Nicaragua would place the U.S. citizen wife (and their daughter) at risk of psychological distress, financial collapse, and victimization to crime. It would seroiusly endanger the well-being and lives of three U.S. citizens.

It should be noted that the way extreme hardships are presented, discussed, and proven often “make or break” an I-601A Provisional Waiver Application. Extreme hardships should be highlighted and elaborated upon in a realistic and credible manner. Every hardship should also be shown to exist and possibly grow worse in two scenarios: if the qualifying relative is separated from the applicant and if the qualifying relative has to re-locate to another country in order to be with the applicant. Every hardship statement made should be proven with objective evidence that is included in a comprehensive collection of Exhibits.

As a result of the comprehensive package we prepared and submitted on behalf of the Applicant, this I-601A Provisional Waiver application was approved.

Client Approval: I-601 “Extreme Hardship” Waiver Approved for Romanian Client Subject to 10 Year Unlawful Presence Bar & Fraud/Misrepresentation

April 18, 2016 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a Romanian client who is subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B)(II) and a life-time bar for fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

INA Section 212(a)(9)(B)(II) states:

Any alien who 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.

INA Section 212(a)(6)(C)(i) states:

Our client entered the U.S. lawfully on a valid non-immigrant visa and overstayed his authorized period of stay by over 1 year before voluntarily departing back to his home country of Romania. During his stay inside the United States, he met and married his U.S. citizen wife. He eventually re-located to the United Kingdom, where his U.S. citizen wife joined him due to his inadmissibility to the U.S.. The couple gave birth to a U.S. citizen child who resides with them in London. The couple contacted my office after the Romanian husband was denied at his immigrant visa interview at the U.S. embassy in London due to being subject to the 10 year unlawful presence ground of inadmissibility and life-time bar fraud/misrepresentation.

An I-601 Application for Waiver of Grounds of Inadmissibility requires a showing that the applicant’s U.S. citizen spouse or parent would suffer “extreme hardship” if the applicant is refused admission into the United States. A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

”Extreme hardship” 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.

We prepared a comprehensive I-601 waiver application including a 29 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship.” We also thoroughly discussed and presented evidence of the U.S. citizen wife’s mother’s medical condition, as well as the precarious physical state of the U.S. citizen wife’s grandparents. The condition of the U.S. citizen wife’s mother and grand-parents were carefully presented to demonstrate their intimate link and relevance to the psychological hardship being faced by the qualifying relative (the U.S. citizen wife).

This case was also challenging because the U.S. citizen wife and her Romanian husband were residing in London, United Kingdom, together with their child who was born outside the U.S. We had to overcome the presumption that a family already residing abroad in a major metropolis such as London has adjusted to life abroad already and is not suffering extreme hardship. However, due to our experience handling similar cases over the past 12+ years, we anticipated this issue and presented an array of financial, psychological, and other hardship evidence to overcome such a presumption.

The supporting documents submitted as part of this I-601 waiver application included:

Personal affidavits from the U.S. citizen wife’s parents and grand-parents affirming the hardships factors presented in this I-601 waiver
Psycho-social evaluation of the U.S. citizen wife which confirms a substantial risk for psychiatric decompensation, and, potentially, an increased risk for suicide due to the immigration consequences of her Romanian husband’s inadmissibility
A specific discussion of Attachment theory (based on the idea that the bond between an infant and his or her primary caregiver is the crucial and primary influence infant development).
We often cite credible studies and reports from a variety of fields to support our I-601 and I-212 waiver applications. In this case, we referenced a World Health Organization’s study on attachment and early childhood development, which states that loss of a primary caregiver can substantially harm a young child’s psychological and emotional development.
Medical records of the U.S. citizen’s wife’s mother
Medical records of the U.S. citizen wife’s grand-parents.
Detailed break-down of the family’s household income, expenses and debt/liabilities
Detailed country conditions of Romania, particularly as it relates to income, job opportunities, and health care
Letters of good moral character and rehabilitation for the Romanian husband

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this family of mother, father, and son will be able to live in the United States and provide support to close U.S. citizen relatives who are in need.

Client Approval: I-601 Waiver Approved in 1.5 Months for Membership in Communist Party

April 15, 2016 By Michael Cho Immigration Lawyer Leave a Comment

We recently obtained approval for the I-601 Application for Waiver of Grounds of Inadmissibility for a Chinese national deemed inadmissible pursuant to INA Section 212(a)(3)(D). Our client is the spouse of a U.S. citizen who was found inadmissible at her I-485 adjustment of status interview due to prior membership in the Chinese Community Party.

Our office was contacted by the client due to our extensive experience handling I-601 waiver cases, including obtaining waiver approvals for those deemed inadmissible due to membership in a communist party pursuant to INA Section 212(a)(3)(D).

INA Section 212(a)(3)(D) deems inadmissible any immigrant who is or has been a member of or affiliated with the Community or any other totalitarian party, domestic, or foreign:

(i) In general. Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.

Three exceptions apply:

INA Section 212 (a)(D)(ii) Exception for involuntary membership. – Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.

INA Section 212 (a)(D)(iii) Exception for past membership. – Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that-

(I) the membership or affiliation terminated at least-

(aa) 2 years before the date of such application, or

(bb) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and

(II) the alien is not a threat to the security of the United States.

INA Section 212 (a)(D)(iv) Exception for close family members. – The Attorney General may, in the Attorney General’s discretion, waive the application of clause (i) in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States.

There is also a judicially created exception that states that an alien is admissible if his or her membership is “not meaningful.” The U.S. Supreme Court elaborates that membership is “not meaningful” if the alien lacks “commitment to the political and ideological convictions of communism.” Rowoldt v. Perfetto, 355 U.S. 115 (1957).

As we do with all of our waiver cases in which more than one exception or waiver applies, we presented evidence that our client meets the legal standard for every relevant and applicable exception and waiver. While this is significantly more work for us and not standard practice for some attorneys, we always do our utmost to maximize the probability of approval for our clients at no additional cost.

Specifically, we presented compelling evidence that our client’s membership in the Chinese Community Party was involuntary and “not meaningful.” We discussed how our client held no leadership positions; never attended a Chinese Communist Party meeting; neither advocated for nor endorsed any part of the Chinese Communist Party ideology; and at no time in her life participated in activities promoting Chinese Communist Party principles or advocating against US interests.

We also presented evidence that our client agreed to join the Chinese Community Party due to the scholarship and post-graduate job opportunities it might offer. We then cited objective academic research that found that membership in the Communist Party had a significant impact on increasing upward mobility in employment, and on decreasing the risk of downward mobility or discharge. According to the research we cited, overall, Party Membership accounted for a swing of 30% in the likelihood of a party member experiencing upward or downward mobility, compared to a non-party member (with the non-party member bearing the greater risk of negative employment outcome).

We engaged in an in-depth discussion of how the admission of our client serves the humanitarian purposes of the United States government; promotes the principle of family unity with her U.S. citizen husband; and that it is in the public interest of the United States to allow our client to be admitted for U.S. lawful permanent residence based on her academic background and professional contributions thus far.

This discussion also included a comprehensive illustration of the extreme hardships that our client’s U.S. citizen husband would suffer should he be separated from his wife (or alternatively, forced to return to China). Specifically, we cited the suspicion, monitoring, and possible censure the U.S. citizen is likely to experience should he re-locate back to China, due to politically sensitive topics he brought up at international conferences as part of his professional duties as an academic. We also conducted a financial analysis of the couple’s situation and demonstrated the dependency of the U.S. citizen husband on his wife’s substantial legal income.

Based on our expedited preparation of the waiver and filing, the I-601 waiver was approved within 1.5 month of submission to the USCIS. Our client will now be approved for lawful permanent residence and be able to continue her life in the United States with her husband.

I-601 Waiver for 10 Year Bar Approved While Both Husband and Wife Residing Abroad

April 7, 2016 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for an Indian client who was subject to the 10 year “unlawful presence” ground of inadmissibility under INA Section 212(a)(9)(B)(i)(II).

This is a somewhat unique case because both the husband and wife reside in Australia on temporary visas. This made preparation of an effective I-601 waiver more challenging, as we needed to demonstrate that the U.S. citizen wife is presently suffering extreme hardship even while living together with her husband abroad (in a developed country such as Australia).

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

(B) Aliens Unlawfully Present.

(i) In general. – Any alien (other than an alien lawfully admitted for permanent residence) who

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year … and again seeks admission within 3 years of the date of such alien’s departure or removal, or

(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 …

Thus, a waiver of inadmissibility 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.

If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

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. Id.

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. Id. at 566.

economic disadvantage
loss of current employment
inability to maintain one’s present standard of living
inability to pursue a chosen profession
separation from family members
severing community ties
cultural readjustment after living in the United States for many years
cultural adjustment of qualifying relatives who have never lived outside the United States
inferior economic and educational opportunities in the foreign country, or
inferior medical facilities in the foreign country.

See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though 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 0-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.” Id.

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. See Salcido-Salcido v. I.N.S., 138 F.3d 1292, 1293 (9th Cir. 1998 (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (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).

Therefore, the AAO considers the totality of the circumstances in determining whether denial of admission would result in extreme hardship to a qualifying relative.

In support of this couple’s I-601 waiver application, my office prepared a comprehensive 28-page legal brief going over how the facts and circumstances of the couple’s situation met the legal standards used to define “extreme hardship.” We also discussed and presented special evidence of the hardships the U.S. citizen wife would suffer in both Australia AND India (the home country of the foreign husband). While this significantly increased the scope of the waiver, we believe demonstrating all of the hardships present in every realistic scenario of re-location (in this case, living in Australia or India) makes for a far more effective and successful waiver application.

The factors discussed and proven with a comprehensive collection of exhibits in this I-601 “unlawful presence” waiver include:

Psychological evaluation by a mental health professional verifying the Dysthymic Disorder suffered by the U.S. citizen spouse, as well the critical emotional and psychological support provided by the foreign spouse (the waiver applicant)
The cultural, linguistic, religious, and psychological background of the U.S. citizen spouse, and the social stigma and prejudice she is likely to suffer should the couple re-locate to live long-term in India
A detailed breakdown of household expenses and debts, demonstrating the complete financial dependence of the U.S. citizen spouse on her husband’s earned income, and the significant amount of financial debt that they owe together as a married couple
The academic history and planned professional career of the U.S. citizen spouse, and her inability to engage in her intended profession in Australia or India
Evidence of the good moral character, rehabilitation, and academic and professional success of the foreign husband since he voluntarily decided to depart from the United States

As a result of our efforts, our client was approved for the I-601 waiver and this married couple can now return to the country to lawfully reside together in the U.S.

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