Spouse Visa - Page 4 of 6 - Smart Immigration Lawyer

Client Approval: I-601 Waiver for Crime Involving Moral Turpitude Approved in 11 Days

May 7, 2015 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 citizen of South Korea who was subject to a life-time bar from being admitted to the United States for conviction of a crime involving moral turpitude under INA Section 212(a)(2)(A)(i)(I). Our client was previously convicted of a crime involving insurance fraud and sentenced to one-year probation.

Our office was contacted after the South Korean wife and her U.S. citizen husband prepared and filed for the I-601 Waiver on their own after the applicant was deemed inadmissible at her consular interview which took place at the U.S. Embassy in Seoul. Their “self-prepared” I-601 Waiver triggered a comprehensive “Request for Evidence” from the USCIS stating that the couple had failed to adequately establish and prove “extreme hardship.”

This was a particularly difficult case because the U.S. citizen husband already resides in South Korea with his wife, thus requiring us to overcome the assumption that any hardship he is suffering is not extreme since he has already re-located outside of the U.S.

The Request for Evidence from the USCIS specifically stated the following:

This office may approve a waiver of the inadmissibility ground(s) under section 212(h) of the INA, if you can show that either:

• You have a qualifying relative who is a U.S. citizen or lawful permanent resident of the United States; and
• Your qualifying relative would suffer extreme hardship on account of your ineligibility to immigrate; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

In addition to the above requirements, if an applicant has been convicted of a violent or dangerous crime, USCIS will not waive the inadmissibility as a matter of discretion unless the individual can show an extraordinary circumstance, such as:

• One involving national security or policy considerations; or

• If the denial of your admission would result in exceptional and extremely unusual hardship.

Your application does not include sufficient evidence to establish that your qualifying relative spouse, your U.S.-born husband, [Name Withheld], would suffer extreme hardship if you are refused admission to the United States. Also, it has not yet been established that it would be an extreme hardship if your husband were to remain in the United States apart from you. And, it has also not yet been explained or established by your husband why it would be an extreme hardship for him to relocate outside of the United States to be with you and your infant daughter in South Korea. “Extreme hardship” is beyond that which normally does occur in any visa denial. Family separation and the loss of support, while undoubtedly difficult, are not, in and of themselves an “extreme hardship.”

Extreme hardship is not a term of”fixed and inflexible meaning”; establishing extreme hardship is “dependent upon the facts and circumstances of each case.” Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999). The Board of Immigration Appeals (BIA) in Matter of Cervantes-Gonzalez lists the factors it considers relevant in determining whether an applicant has established extreme hardship. The factors include :

• Presence of a lawful permanent resident or U.S. citizen spouse or parent in this country;
• Qualifying relative’s family ties outside the United States;
• 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;
• 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. ld. at 565-566.

The BIA indicated that these factors relate to the applicant’s “qualifying relative.” ld. at 565-566. In Matter of O-J-0-, 2 1 I&N Dec. 38 1, 383 (BIA 1996), the BIA stated that the factors to consider in determining whether extreme hardship exists “provide a framework for analysis,” and that the “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” It further stated that “the trier of fact must consider the entire range of factors concerning hardship in their totality” and then “determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” (citing Matter of lge, 20 I&N Dec. 880, S82 (BIA 1994 ).

Beyond simply responding to the Request for Evidence, we prepared an entirely new I-601 “extreme hardship” waiver, including a thorough legal and factual discussion of the extreme hardships relevant to this case. A detailed table of exhibits providing objective proof of every crucial assertion made in our waiver was also included, as it is with all of our waiver applications. Our I-601 waiver was subsequently approved in 11 days to the enormous relief of our clients.

In order to overcome the initial opinion of the USCIS, I initiated our firm’s comprehensive process for preparation of powerful and effective immigration waiver applications. I forwarded our Extreme Hardship Worksheet to my clients, which contains questions designed to elicit extreme hardships and other persuasive factors. I also recommended the couple to a clinical psychologist well-versed in preparing psychological evaluations for immigration waivers and who offers a significantly discounted fee for my clients (please refer to my post on the elements of a powerful psychological evaluation for I-601 waiver applications for more details).

We made sure every single facet of their case was documented and that the objections raised by the USCIS in their Request for Evidence was fully addressed to maximize the chances of approval.

Once we identified the most important factors of the case, we prepared a comprehensive legal brief going over how the facts and circumstances of my client’s situation met the legal standards used to define “extreme hardship.”

We focused on the medical conditions of the U.S. citizen husband and his U.S. citizen mother, and how the U.S. citizen’s husband’s physical and psychological state would worsen in two scenarios: if he remained in the U.S. without his wife; or if he permanently re-located to South Korea to be with his wife, abandoning his ill U.S. citizen mother who has no one else to help care for her.

I also discussed and presented evidence of my client’s rehabilitation, good moral character, and her overall dedication as a wife and mother who is integral to the daily care of her ill U.S. citizen husband and their infant daughter.

The favorable factors in this case included the following:

The U.S. citizen husband suffers from Generalized Anxiety Disorder and Dysthymic Disorder, both major mental disorders recognized by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition
There is a long history of mental illness in the U.S. citizen husband’s family, especially with regard to his mother who has struggled with depression, manic depression, and anxiety most of her life.
The U.S. citizen husband developed two medical conditions, allergic asthma and allergic rhinitis, due to the high levels of air pollution in South Korea.
The U.S. citizen husband’s mother suffers from Stage 3 Lyme’s disease, as well as severe pain caused by fibromyalgia and degenerative disc disease of her spine. She also suffers from hypothyroidism caused by Hashimoto’s disease, a serious autoimmune disease. She has no one else to help take care of her aside from her son.
The U.S. citizen husband’s mother desperately needs to take strong antibiotics to treat the Lyme disease that continues to spread throughout her body, but cannot risk the side effects from the drugs without her son living nearby to aid her should the side effects incapacitate her.
The U.S. citizen husband and his South Korean wife do not earn enough to meet their monthly financial expenses. The U.S. citizen husband is thus unable to afford visits to the U.S. to take care of his mother as her physical and psychological state deteriorates.

As a result of our assistance, this I-601 waiver was approved and the family can now reside together in the U.S.

Client Approval: I-601 Extreme Hardship Waiver Approved for Mexican Wife

February 18, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 “Extreme Hardship” Waiver for a Mexican applicant married to a U.S. citizen husband. The U.S. citizen husband contacted my office after his Mexican wife attended her consular interview at Ciudad Juarez and was deemed inadmissible to the U.S. based on being subject to the “10 year unlawful presence bar” pursuant to INA Section 212(a)(9)(B).

Our I-601 Waiver application package included a complete set of USCIS forms requesting consideration of the I-601 Waiver; a 21 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.

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

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

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of alien’s departure or removal from the United States, is inadmissible.

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

”Extreme hardship,” for purposes of the I-601 Waiver, has a special meaning under U.S. immigration law. The factors considered relevant in determining extreme hardship include:

Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.

Financial considerations: future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children; cost of caring for family members (i.e., elderly and infirm parents).

Education: loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time in grade; availability of special requirements, such as training programs or internships in specific fields.

Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.

Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.

Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

Spouses must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.

I drafted a comprehensive 21 page waiver memorandum outlining the relevant case law favorable to my client’s situation. It also discussed in detail the medical, financial, emotional, and psychological hardships the U.S. citizen husband (and their children) are presently suffering from, and proved how they would worsen in the event of continued separation of this family. I also highlighted a variety compelling factors in the lives of the applicant and her family that I believed warranted an exercise of favorable discretion on the part of the USCIS.

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

The U.S. citizen daughter suffers from Febrile Seizures, Epilepsy, Unconjugated Hyperbilirubinemia, and has a history of life-threatening incidents that required surgery and treatment. She also suffers from depressive disorder, aggravated by the absence of her mother from her life due to her mother’s inadmissibility to the U.S.
The other U.S. citizen daughter is hyperactive and has been injured numerous times due to her uncontrolled behavior, including plastic surgery needed for her most recent injury to her skull.
The U.S. citizen husband suffers from crippling Anxiety Disorder, overwhelmed by the burden of caring for two sick children while under imminent threat of termination by his employer due to his absences from work to take care of his children and visit his wife in Mexico.
The loss of his employment would terminate the medical insurance he receives through his Union-job, which helps pay for the medical expenses incurred by himself and his family
The loss of his employment would cause financial collapse given his existing financial debt including mortgage on the family home
The U.S. citizen’s extensive family ties to the U.S. including brothers and sisters
The country conditions of the region in Mexico where the wife resides (and where the family would have to re-locate to in the event she is not admitted), including specific instances of violent crimes that have recently occurred in her immediate vicinity

As a result of the I-601 Waiver prepared and submitted by my office, the waiver application was approved and this family can soon be re-united inside the United States.

Client Approval: I-601 Waiver Approved for Crime Involving Moral Turpitude by Immigration Waiver Lawyer Michael Cho

October 8, 2014 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 citizen of the United Kingdom who was subject to a life-time bar from being admitted to the United States for conviction of a crime involving moral turpitude under INA Section 212(a)(2)(A)(i)(I). Our client was previously convicted on five counts of shoplifting and was sentenced to 12 months, conditionally discharged.

Our office was contacted after the British wife and her U.S. citizen husband filed for the I-601 Waiver on their own after the applicant was deemed inadmissible at her consular interview which took place at the U.S. Embassy in London. Their “self-prepared” I-601 Waiver was denied by the USCIS.

In order to overcome their I-601 Waiver denial, I initiated our firm’s comprehensive process for preparation of powerful and effective immigration waiver applications. I forwarded our Extreme Hardship Worksheet to my clients, which contains questions designed to elicit extreme hardships and other persuasive factors. I also recommended the couple to a clinical psychologist well-versed in preparing psychological evaluations for immigration waivers and who offers a significantly discounted fee for my clients (please refer to my post on the elements of a powerful psychological evaluation for I-601 waiver applications for more details).

Once I identified the most important factors of the case, I prepared a comprehensive legal brief going over how the facts and circumstances of my client’s situation met the legal standards used to define “extreme hardship.” I also discussed and presented evidence of my client’s rehabilitation, good moral character, and her overall dedication as a wife and mother who was integral to the daily care of her ill U.S. citizen husband, his elderly lawful permanent resident parents, and their infant children who suffered from serious medical conditions.

I made sure every single facet of their case was documented and that the objections raised by the USCIS in their previous denial was fully addressed to maximize the chances of approval.

The reasons cited by the USCIS in its denial of the couple’s first and “self-prepared” I-601 Waiver Application are informative:

The USCIS stated that the applicant’s assertion that her U.S. citizen husband could not operate his thriving U.S. business from the United Kingdom was insufficient. It stated that while the applicant’s husband indicated that it would be: “more difficult and perhaps less profitable to continue to operate his business from outside the U.S., however it was not shown that it would be unprofitable, or that any loss of income would create an extreme hardship. No evidence was presented that he could not employ person(s) in the U.S. as necessary.”

The USCIS found that: “No evidence was presented as to the extent of his financial support for you and his parents.” The U.S. citizen husband lived in the United States with both of his elderly parents who are lawful permanent residents of the U.S. and paid for the household of his wife and two infant children in the United Kingdom.

The USCIS also stated that statements from the applicant’s U.S. citizen husband that he is suffering ‘severe depression’ that is likely to affect his general health, together with a letter from a psychologist indicating that the U.S. citizen husband received supportive help in coping with his psychological depression and anxiety, were insufficient to prove extreme hardship.

Specifically, the USCIS stated that the psychological letter contained no clinical diagnosis or prognosis for stabilization or improvement and did not indicate the severity of his psychological problems.

The USCIS concluded that that while denial of the applicant’s admission would have an adverse impact upon her family, this adverse effect is no greater than one would expect from a prolonged absence of a loved one due to inadmissibility. It stated that the evidence presented by the couple did not demonstrate the U.S. citizen husband’s distress is beyond the emotional/psychological hardship which separation from loved ones typically presents in visa refusals, and did not rise to the level of extreme hardship either singularly or in the aggregate.

To support its reasoning in the original denial of the couple’s I-601 waiver application, the USCIS cited and presented the the following case law:

In other cases of extreme hardship, it has been found that the mere loss of employment, the inability to maintain one’s present standard of living or to pursue a chosen profession, or separation of a family member or cultural readjustment do not constitute extreme hardship. Matter of Pilch, 2 1 I&N Dec. 627 (BIA 1996); Marquez-Medina v INS, 765 F.2d 673 (7th Cir. 1985); Bueno-Carillo v. Landon, 682 F2d 143 (7th Cir. 1982); Chokloikaew v INS, 60 I F.2d 2 16 (5th Cir. 1979), Banks v INS, 594 F.2d 760 (9th Cir. 1979; Matter of Kojoory, 12 I&N Dec. 2 15 (BIA 1967).

To overcome the previous findings of the USCIS, I prepared a 20 page legal memorandum discussing the extreme hardships and other persuasive factors of the case. I presented our own case law that was relevant to the facts and circumstances of our case and supported approval of our waiver application. Additionally, a table of exhibits referenced a variety of objective evidence in support of a showing of “extreme hardship” including:

Proof of U.S. Lawful Permanent Residence of the U.S. Citizen Husband’s parents and the potential loss of this residence if they were forced to re-locate abroad with their son
Medical Records of the U.S. Citizen husband’s father confirming his High Blood Pressure, Hypertension, Hernia Surgery, and upcoming Prostate Surgery
Psychological Evaluation from an experienced clinical psychologist confirming the U.S. Citizen husband’s Dysthymic and Generalized Anxiety Disorders and vital need to remain in the U.S. for regular treatment
Medical Records of the couple’s infant children who were pre-maturely born after only 23 weeks of gestation and suffer from life-threatening conditions including Chronic Lung Disease (bronchopulmonary dysplasia), Patent ductus arteriosus, feeding difficulties, Bacterial sepsis, Hypotension, Respiratory Distress, Pneumothorax, and Isolated Intestinal Perforation.
Proof of financial contributions from the U.S. Citizen Husband for his British Wife and family
Proof that the U.S. Citizen Husband’s business could not be operated from abroad and would suffer closure should he be forced to re-locate to the United Kingdom in order to be with his family
Affidavits of Good Moral Character and Rehabilitation for the applicant by her friends and family

As a result of our efforts, the couple’s I-601 “Extreme Hardship” Waiver Application was approved and this family now lawfully resides together in the United States.

Client Approval: I-601A Provisional Waiver Approved by Showing of Extreme Hardship

September 30, 2014 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601A Provisional Waiver for a Guatemalan applicant married to a U.S. citizen wife. The clients contacted my office after their previous attorney erroneously filed for an adjustment status on behalf of the couple (a process which the applicant clearly did not qualify for).

I corrected the error by filing the I-824 Application for Action on an Approved Petition. The USCIS consequently forwarded the approved I-130 Petition for Alien Relative to the National Visa Center. The Affidavit of Support and Immigrant Visa Application Processing Fees were soon issued by the National Visa Center. By this time, the I-601A Provisional Waiver package was already completed by my office and ready for submission to the USCIS waiver adjudication unit.

Our I-601A Provisional Waiver application package included a complete set of USCIS forms requesting consideration of the I-601A Provisional Waiver; a 17 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.

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 Guatemalan national who entered the United States without inspection. He married a U.S. citizen wife, is a devoted father to three children (two of whom are from a previous relationship of the US citizen wife), and also has a mother who is a naturalized U.S. citizen residing in the United States. The favorable factors of this case included some of the following:

Two children of the couple have visitation with their biological father under the terms of a legal custody agreement. If the U.S. citizen wife was forced to re-locate to Guatemala to be with her husband, her daughters would likely not be allowed to move out of the U.S. This is a powerful form of “legal hardship” which should always be highlighted and detailed on any I-601 Waiver and I-601A Provisional Waiver Application.
The family survives financially solely due to the income provided by the Guatemalan applicant. It is his income that allows this family to pay for its living expenses and medical bills.
The U.S. citizen wife has been diagnosed with Adjustment Disorder and Panic Disorder. She was prescribed medication for her conditions in 2010. A history of prior diagnoses and treatment is much more persuasive than a recent evaluation conducted solely for the purposes of an immigration application.
The U.S. citizen wife’s mother suffers from severe medical conditions of her own, and relies upon her daughter to watch over her health and assist in day-to-day tasks.
The Guatemalan applicant’s U.S. citizen mother suffers from Clinical Depression along with a number of severe medical conditions. She relies upon her son to take care of her including taking her to the hospital and making sure she takes the right medications.
The U.S. citizen wife is undergoing severe financial hardship including the filing of bankruptcy just several years ago. Without her husband’s financial assistance, she would be unable to take of her three children, afford medical treatment for her illnesses, or be able to afford rent on their family home.

It should also 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 List of Exhibits.

I am often asked to review waiver applications that were prepared and submitted by other attorneys and subsequently denied. Some of these applications that I review are missing detailed waiver memorandum drafted by the attorney altogether. Others have “cover letters” of 2-3 pages introducing the case, then an unmanageable number of exhibits that are likely to get ignored by the USCIS officer. In almost every case I am asked to review, I see significant ways the waiver application can be improved upon to more effectively convey the extreme hardships being suffered by the qualifying relative(s).

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 Waiver and I-212 Waiver Approved for 10 Year Unlawful Presence Bar and 10 Year Deportation Bar

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

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

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

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

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

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

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

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

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

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

Basis for the deportation

Recency of deportation

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

Family responsibilities and ties to the U.S.

Foreign natonal’s evidence of good moral character

Foreign national’s respect for law and order

Evidence of reformation and rehabilitation

Hardship involving the applicant and others

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

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

Eligibility for a waiver of other inadmissibility grounds

Absence of significant undesirable or negative factors

Negative factors may include:

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

Repeated violations of immigration laws, willful disregard of other laws

Likelihood of becoming a public charge

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

Absence of close family ties or hardships

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

Unauthorized employment in the United States

Lack of skill for which labor certification could be issued

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

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

”Extreme hardship,” for purposes of the I-601 Waiver, has a special meaning under U.S. immigration law. The factors considered relevant in determining extreme hardship include:

Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.

Financial considerations: future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children; cost of caring for family members (i.e., elderly and infirm parents).

Education: loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time in grade; availability of special requirements, such as training programs or internships in specific fields.

Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.

Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.

Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

Spouses must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.

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

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

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

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

Client Approval: I-601 Waiver Approved for Crime Involving Moral Turpitude

June 17, 2014 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 Austrian client who was subject to a life-time bar from being admitted to the United States for conviction of a crime involving moral turpitude under INA Section 212(a)(2)(A)(i)(I).

He was previously convicted of gross careless impairment of interests of creditors and withholding employees’ social security contributions in Austria. Both convictions were expunged from the record after he complied with the terms of his probation. His U.S. citizen wife filed the I-130 Petition for Immediate Relative on his behalf. He was denied at the U.S. embassy during his consular interview since foreign convictions that are expunged are still deemed relevant for U.S. immigration purposes.

He hired an attorney without specialized experience in waivers to prepare and submit a waiver application on his behalf. That waiver was denied. He subsequently contacted our office and engaged my services to re-submit the I-601 waiver on his behalf pursuant to INA 212(h)(1)(B) based on the extreme hardship that his US citizen wife (and son) would continue to suffer if he is not admitted to the U.S.

An I-601 Application for Waiver of Grounds of Inadmissibility under INA 212(h)1()(B) requires a showing that the applicant’s U.S. citizen spouse, parent. son or daughter would suffer “extreme hardship” if the applicant is refused admission into the United States.

”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.

I prepared a comprehensive I-601 waiver application including a 15 page legal brief going over how the facts and circumstances of my clients’ situation met the legal standards used to define “extreme hardship.” I also discussed and presented evidence of the applicant’s rehabilitation, good moral character, and overall dedication as a husband and father who was integral to the care and well-being of his ill U.S. citizen wife and son.

This case was particularly difficult because the U.S. citizen wife was born and raised in Austria. She had spent her entire life in Austria and only recently re-located to the United States. We had to overcome the presumption that a U.S. citizen who was raised and spent her entire life in Austria, who speaks the local language as a native, was educated in the country, and has never resided in the United States, has adjusted to life in Austria and is not suffering extreme hardship.

Given the long history of the U.S. citizen wife in Austria, I made sure that the Austrian physicians’ letters conformed to the specific needs and requirements of the I-601 waiver. I also worked with a U.S. marriage & family therapist to corroborate the Major Depression the U.S. citizen wife suffers from and the consequences of immigration-caused separation upon her mental health and overall well-being. Additionally, I carefully analyzed the strengths and weaknesses of the case and put together a table of exhibits that supported a showing of “extreme hardship.” The supporting documents included:

Psychological evaluation, physicians’ letters, and medical records of the U.S. citizen wife confirming her Major Depression, difficulty sleeping, debilitating migraines, high blood pressure, Chronic Hepatitis C, and hypertension
Proof of the U.S. citizen wife’s dire financial situation including her complete economic dependence on her Austrian husband
Evidence of the Austrian husband’s continued employment in the United States with his current employer should he be admitted to the U.S., and the importance of this employment to meet the medical and vital needs of his U.S. citizen wife and son
Evidence of the U.S. citizen’s wife’s reliance on the support and assistance of her parents, and how her parent’s re-location to the United States necessitated her re-location to the U.S.
Affidavits demonstrating my client’s good moral character including a sworn affidavit from a Lieutenant-Colonel of the Austrian police department

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 together as a family in the United States.

Client Approval: I-601 Waiver under 212(h) Approved for Client With Multiple CIMT and Controlled Substance Conviction

March 9, 2014 By Michael Cho Immigration Lawyer Leave a Comment

Our office recently 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) and INA 212(a)(2)(A)(i)(II). Our client has multiple criminal convictions in her background including a conviction for a crime involving moral turpitude which occurred in 1998 and a controlled substance conviction (possession of a cannabis bong) which occurred in 1997. Our client is married to a U.S. lawful permanent resident husband with an approved I-130 immediate relative petition filed on her behalf.

She contacted me after filing the I-601 waiver on her own and receiving a notice from the USCIS stating that the waiver package she filed did not contain sufficient evidence that a favorable exercise of discretion was warranted in her case.

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.

”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.

How I Obtained Approval of the I-601 Waiver for My Client Who Had Multiple Convictions for Crimes Involving Moral Turpitude and a Controlled Substance Conviction

In support of my client’s I-601 waiver application, I prepared a comprehensive 21-page legal brief going over how the facts and circumstances of her situation met the legal standards for both INA 212(h)(1)(A) and INA 212(h)(1)(B) including citations of existing case law favorable to my client’s case.

I thoroughly outlined the the medical, financial, and psychological hardships of the case and presented persuasive evidence of my client’s rehabilitation and good moral character. Not only did I show that my client was rehabilitated and her admission not contrary to the national welfare, safety, or security of the U.S., I also demonstrated that her overall dedication as a wife and mother was integral to the daily care of her ill U.S. citizen husband (who suffers from coronary heart disease and psychological disorders) and their three children (one of whom suffers from Attention Deficit Hyperactivity Disorder). I also showed that the welfare of her husband and children depends on them remaining inside the United States together with their wife and mother.

An extensive table of exhibits also listed a variety of evidence in support of a showing of “extreme hardship” and rehabilitation.

As a result of our efforts, our client was approved for the 601 waiver within 4 weeks of submission and subsequently, received her lawful permanent residence to join her family in the United States.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Client Approval: I-601 Waiver Approved for Crime Involving Moral Turpitude by Immigration Waiver Lawyer Michael Cho

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

Client Approval: I-601 Waiver Approved for Crime Involving Moral Turpitude

Client Approval: I-601 Waiver under 212(h) Approved for Client With Multiple CIMT and Controlled Substance Conviction

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

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