Blog - Page 13 of 17 - Smart Immigration Lawyer

Admitting Drug Use and Inadmissibility for Permanent Residence

September 23, 2013 By Michael Cho Immigration Lawyer Leave a Comment

All applicants applying for permanent residence to the U.S. must complete a medical examination. The civil surgeon or panel physician requests a medical history of the applicant, conducts a physical examination, and inquires about physical health and medications the applicant may be taking to ensure any vaccinations required are not contraindicated.

During the course of the medical examination, the civil surgeon or panel physician is instructed to “evaluate the applicant’s history, behavior and physical appearance when determining if drug screening should be performed.” If the civil surgeon or panel physician reviews the applicant’s medical history with the applicant and finds no signs of drug use or abuse, the civil surgeon or panel physician is instructed to not inquire about recreational drug use.

However, what happens if the applicant admits to drug use, such as recreational use of marijuana, during the medical examination?

In this situation, the civil surgeon or panel physician determines whether the applicant’s drug use should be classified as “drug abuse” or “drug addiction” as defined by the Department of Health and Human Services (HHS):

Drug abuse: The non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 U.S.C. 802) which has not necessarily resulted in physical or psychological dependence.

Drug addiction: The non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 U.S.C. 802) which has resulted in physical or psychological dependence.

If the civil surgeon or panel physician determines that the applicant’s drug use is neither drug abuse or drug addiction, then “No Class A or B Substance (Drug) Abuse/Addiction” would be noted in the applicant’s I-693 Report of Medical Examination and Vaccination Record.

However, should the civil surgeon or panel physician determines that the applicant’s drug use is either drug abuse or drug addiction, then a secondary determination is made as to whether the applicant has a “Class A” or “Class B” condition.

Being deemed to have a “Class A” condition would make the intending immigrant inadmissible due to being a “drug abuser or addict” or by having a “physical or mental disorder” associated with harmful behavior. INA § 212(a)(1)(A)(iv) or INA § 212(a)(1)(A)(iii) would subsequently bar the applicant from obtaining permanent residence in the U.S until full sustained remission can be shown.

INA § 212(a)(1)(A)(iv) declares inadmissible any alien “who is determined…to be a drug abuser or addict.”

INA § 212(a)(1)(A)(iii) declares inadmissible any alien: “who is determined… (I) to have a physical or mental disorder andbehavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or (II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior…”

Being deemed to have a “Class B” medical condition is considered to be in full, sustained remission of substance abuse or dependence and is not considered an inadmissible medical condition.

The CDC currently defines sustained, full remission as a period of at least 12 months during which no substance use or mental disorder-associated behaviors have occurred. The practical significance for diagnosis of remission is that applicants who are determined to be Class A for abuse or addiction for those substances listed in Schedule I through V of Section 202 of the Controlled Substance Act are not eligible for a waiver and must complete the time period for sustained, full remission before reapplying for admission (i.e. at least 12 months).

However, continuing with the example of an applicant who admits to past recreational drug use such as marijuana, a more serious consequence of the admission exists.

Depending on exactly what the applicant admits to during the medical examination, and what the civil surgeon or panel physician explains to the applicant about the illegality of drug use, the applicant may be inadmissible under INA 212(a)(2)(A)(i)(II). This section of the INA states that an applicant is inadmissible if he is found to have admitted “committing acts which constitute the essential elements of . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).”

Notice here that mere admission of drug use that would constitute a controlled substance violation is enough to make a person inadmissible. A conviction is not required. There is no waiver available.

So what constitutes an admission that could lead to such harsh immigration consequences?

The Board of Immigration Appeals uses the standards set forth in Matter of K, 7 I&N Dec. 594 (BIA 1957) in determining the requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily.

Keep in mind however that the Ninth Circuit Court of Appeals has ignored some of the factors in Matter of K. See Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002). Consular officers have in the past been extremely strict in effectively banning applicants for life pursuant to INA 212(a)(2)(A)(i)(II). The trend appears to be for greater leniency in recent years.

The important take away here is that the medical examination can be a perilous process in and of itself for the immigration consequences that can result. It is extremely important you be honest yet informed about the ramifications of statements made during the immigration medical examination process.

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

September 23, 2013 By Michael Cho Immigration Lawyer 1 Comment

I-601 Waiver Legal News

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

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

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

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

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

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

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

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

Client Approval: 212(d)(3) Waiver, F-1 Visa and Driving Under the Influence (DUI)

September 23, 2013 By Michael Cho Immigration Lawyer 2 Comments

I recently prepared and submitted a 212(d)(3) non-immigrant waiver on behalf of a Brazilian client. She subsequently received approval for extension of her F-1 visa. My client was previously arrested for driving under the influence of alcohol while inside the United States. During her visit to see family in Brazil, she applied for extension of her F-1 student visa. She was informed by the U.S. consulate that she would have to undergo a medical examination. At the medical examination, she was classified as having a “Class A” condition due to the recency of the DUI conviction and strict Technical Guidelines of the Center for Disease Control and Prevention. Consequently, she was informed that she would be inadmissible to the United States based on being subject to the health ground of inadmissibility pursuant to INA Section 212(a)(1)(A)(iii)(II):

Any alien who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)–…(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior…is inadmissible

My client is an outstanding graduate student who is the recipient of a prestigious tuition scholarship, has received numerous honors and awards in the past, and is involved in a variety of extracurricular activities related to her field of specialization. This was her first DUI conviction and she completed her Diversion Agreement program in full including paying the court fee; completing a drug and alcohol assessment and recommended treatment program; attending a victim impact panel; and not using any drugs or alcohol during the term of her Diversion Agreement program. By completing the Diversion Agreement, she is scheduled to have the DUI conviction dismissed by the court in 2014. However, she was scheduled to begin the academic semester in the fall of 2013.

I prepared a comprehensive 212(d)(3) non-immigrant waiver in the form of a legal brief discussing the three legal factors set forth by Matter of Hranka, 16 I&N Dec. 491 (BIA 1978).

In the case, Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the Board of Immigration Appeals reversed a district director’s denial of a waiver application filed by a Canadian woman who had been deported for engaging in prostitution and admitted to previous heroin use. She filed her application only two years after having been deported. She requested entry to visit relatives and engage in various tourist activities.

In overturning the district director’s decision to deny the application, the BIA accepted as proof of rehabilitation letters from the applicant’s mother, and the principal of the high school the applicant had attended, who is a psychologist. It held that the applicant’s reasons for entering the United States need not be compelling. The BIA articulated three criteria for granting a waiver under INA 212(d)(3)

1. The risks of harm in admitting the applicant;

2. The seriousness of the acts that caused the inadmissibility; and

3. The importance of the applicant’s reason for seeking entry.

Both Department of State and the Foreign Affairs Manual specify that any nonimmigrant may request a waiver as long as his or her presence would not be detrimental to the United States. They provide that “while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” See 22 CFR 40.301 Foreign Affairs Manual (FAM) 40.301 N3. Furthermore, the Admissibility Review Office has confirmed that it will follow and adhere to Matter of Hranka in adjudicating requests for INA 212(d)(3) waivers.

In my client’s case, I addressed each of the factors laid out by Matter of Hranka while emphasizing the importance of the studies she was pursuing (which held direct ramifications for benefiting the welfare of communities within the United States); her successful completion of all aspects of her DUI Diversion Agreement Program; her track record of academic excellence and achievement which would be derailed if she missed the start of her fall academic semester; the potential consequences of missing the start of her fall academic semester, which included loss of her tuition scholarship; and her history of law-abiding and ethical behavior which was supported by numerous affidavits from her professors and colleagues.

More importantly, I argued in the alternative that my client should not be deemed subject to the health ground of inadmissibility since INA Section 212(a)(1)(A)(iii)(II) applies to those whose “behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior…” I set forth arguments and supporting documents demonstrating that there is no likelihood of my client’s DUI recurring, given the importance she places on her studies, her history of good conduct, and other evidence of complete rehabilitation.

Based upon these factors, my client was approved for the F-1 extension and is now in the United States successfully continuing her studies with no loss of school time whatsoever.

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

September 17, 2013 By Michael Cho Immigration Lawyer Leave a Comment

I-601 Waiver News

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

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

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

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

Section 212(i) provides, in pertinent part:

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

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

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

In this case, the favorable factors are the following:

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

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

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

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

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

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

I-601 Waiver News

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

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

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

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

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

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

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

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

Section 212(i) of the Act provides:

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

The favorable factors in this case are as follow:

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

Fiance Visa Approved – Client Review by Peter L.

September 2, 2013 By Michael Cho Immigration Lawyer Leave a Comment

All client testimonials are written by my former clients who you may request to contact and speak with, depending upon their personal schedules and preferences.

I highly recommend Michael Cho’s services for anyone looking for a successful outcome to their immigration needs. I hired Michael Cho to represent my fiancée and I for the K-1 Fiancée Visa process. The interactions were done mainly through email, but there was absolutely no loss in the service provided. Michael Cho was able to successfully guide us through the application and interview process to obtain the fiancée visa. Listed below are some specific reasons why I would choose Michael Cho to be my immigration lawyer:

1. Michael always responded quickly with answers to all of my questions. Responses via email were always within hours.

2. Michael’s services were more cost effective than local lawyers.

3. Michael provided step-by-step instructions and explained the entire process, which made it easy for us to know what to do.

4. Michael has deep knowledge and experience to be proactive when necessary. Michael correctly advised me to file additional forms and information so that our application would not be held up at the USCIS.

5. Michael filed the forms and followed up with the USCIS when our case seemed to take longer.

6. Michael prepared my fiancée for the interview by making sure we had the necessary forms, letters, pictures, etc. He was also willing to hold a mock interview and answer any last minute questions before the consular interview.

7. My fiancée mentioned that she was well prepared with all documents and requirements needed for the consular interview. Her successful interview only lasted a minute.

For my fiancée and I, our decision to apply for the K-1 Fiancée Visa was one of the most important steps for our relationship. I wanted everything done right the first time, with no delays and failures. Michael Cho was able to make this possible. If you are looking for a professional immigration lawyer who covers the entire basis and works tirelessly to represent you to a successful outcome, hire Michael Cho and you will not be disappointed.

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

August 28, 2013 By Michael Cho Immigration Lawyer Leave a Comment

I-601 Waiver and I-212 Waiver Legal News

The applicant in this case is a native of Russia and a citizen of Ukraine, who was found to be inadmissible to the United States under sections 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for procuring a visa by willfully misrepresenting a material fact, and pursuant to section 212(a)(9)(A)(i) of the Act, 8 U.S.C. § 1182(a)(9)(A)(i), due to her expedited removal from the United States.

The applicant applied for a waiver of inadmissibility (also known as the I-601 or “extreme hardship” waiver) and permission to reapply for admission (also referred to as the I-212 waiver) in order to reside in the United States with her U.S. citizen husband.

The take-away from this case is that when the I-601 and I-212 waivers are filed together, approval of the I-601 waiver upon finding of extreme hardship and exercise of favorable discretion, also means approval of the I-212 waiver. This means that waiver applicants applying for the I-601 and I-212 waivers together, should focus most of their efforts on proving extreme hardship to the qualifying relative as well as on demonstrating why a favorable exercise of discretion should be granted.

Section 212(a)(9)(A) provides, in pertinent part:

(i) Arriving Aliens. -Any alien who has been ordered removed under section 235(b)(l) or at the end of proceedings under section 240 initiated upon the alien’s arrival in the United States and who again seeks admission within 5 years of the date of such removal … is inadmissible.

(ii) Other Aliens. -Any alien not described in clause (i) who-

(I) has been ordered removed under section 240 or any other provision of law, or

(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien’s departure or removal … is inadmissible.

(iii) Exception. -Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien’s reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General [now, Secretary, Department of Homeland Security] has consented to the alien’s reapplying for admission.

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

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

Section 212(i)(1) of the Act provides:

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

The favorable factors in this case cited by the AAO in finding extreme hardship to the U.S. citizen spouse are the following:

The U.S. citizen husband is 60-years old.
He has a number of medical conditions for which he receives regular treatment and monitoring including rheumatoid arthritis (generalized inflammation of the joints), osteoarthritis (localized inflammation due to wear and tear) of the hand/wrist, as well as hepatitis C and a latent form of tuberculosis (TB) infection.
While he has maintained an active lifestyle, the U.S. citizen husband has suffered painful flare-ups while overseas with his wife.
The U.S. citizen husband’s chronic infections are actively monitored by his physician with an eye toward offering his patient access to new therapies.
The Ukrainian wife’s presence in the U.S. spares the U.S. citizen husband from overseas visits to ease the pain of separation. This thereby minimizes the chances that painful episodes experienced during visits to Ukraine and Mexico will reoccur.
The State Department advises that U.S. citizens who are ill or infirm not travel to the Ukraine, as “those with existing health problems may be at risk due to inadequate medical facilities.”
The State Department substantiates the U.S. citizen husband’s concerns for his wife’s personal safety and security by noting that street crime is a serious problem, corruption pervasive among the police, and emergency services far below western standards.
The U.S. citizen husband was married for 34 years before marrying the applicant in 2010. He observes that he does not do well alone. A psychotherapist concluded, based on targeted questionnaires and symptoms including sadness, crying, insomnia, loss of appetite/weight, headaches, and problems concentrating, that the U.S. citizen husband suffers from major depression stemming from prolonged separation from his Ukrainian wife.
The psychological report confirms that the U.S. citizen husband receives little relief from anti-depressant medication and sleep aids prescribed by his doctor, and supports the therapist’s conclusion that his psychological distress will continue to worsen in his wife’s absence.
The U.S. citizen husband’s second wife, with whom he shares custody of their six year old son, has conditioned granting full custody upon the Ukrainian wife’s presence as a homemaker to the household. The U.S. citizen husband is eager to have his son live with him and his wife in a family unit.
The U.S. citizen husband has many ongoing expenses, including high fixed costs for his business; tuition and travel costs for his young son currently residing in Kentucky with his mother and attending school; travel expenses to visit with his wife abroad; and costs of maintaining regular communications with his wife to ease the pain of separation.
The U.S. citizen husband is struggling to maintain a home in Alaska and a Kiev rental apartment for his wife, while also paying for significant expenses associated with supporting his son in Kentucky. The expense of maintaining two households have strained his financial resources and forced him to access retirement accounts to make ends meet.

The factors cited by the AAO in exercising favorable discretion in this matter are:

The extreme hardships the applicant’s husband would face if the applicant were to reside in Ukraine, regardless of whether he accompanied the applicant or remained in the U.S.
The applicant’s lack of any criminal record
Supportive statements and passage of nearly four years since the applicant’s misrepresentations
Her ready admission to and contrition about her misrepresentations.

As with all cases, a thorough overview of the case law, an in-depth and persuasive discussion of the relevant factors, along with a comprehensive array of supporting documents to prove the statements made, are required for approval of these types of applications.

212 Waiver Legal News: AAO Approves I-212 Waiver and I-601 Extreme Hardship Waiver

August 21, 2013 By Michael Cho Immigration Lawyer 1 Comment

The applicant is a citizen of Albania who entered the U.S. on a false Greek passport. After denial of his applications for asylum and withholding of removal, he was removed from the United States. He was deemed inadmissible to the United States based on having used fraudulent documents and his unlawful presence of more than one year under Sections 212(a)(6)(C)(i) and 212(a)(9)(B)(i)(II) of the Immigration & Nationality Act. He also required consent to reapply for admission to the United States until 10 years have passed due to having been removed from the United States.

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

Section 212(i)(I) of the INA provides that:

Section 212(a)(9)(B) of the INA provides that:

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

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

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

The applicant in this case has three qualifying relatives for the purposes the I-601 Extreme Hardship waiver: his U.S. citizen spouse, his U.S. citizen mother, and his lawful permanent resident father. He also required approval of the I-212 Consent to Reapply for Admission to the United States based his removal from the U.S.

This case contains so many factors deemed persuasive by the USCIS that I decided to list all them all below. When evaluating the chances of your own extreme hardship waiver case, you should look to see whether the hardships and favorable factors found in this case can also be found in your own situation. It is important to note that psychological and medical evaluations appear to have been done at multiple points in time. Each evaluation showed a deterioration in the psychological and medical condition of the qualifying relative, thus adding credence to the claim that they are suffering extreme hardship in the absence of the applicant.

Please also keep in mind that each factor must be discussed in two scenarios: if the applicant and the qualifying relative are separated; or if the qualifying relative leaves the United States and re-locates to the applicant’s home country. Additionally, each factor must be supported by reliable documentary evidence. I routinely prepare I-601 and I-212 waiver letters that number at least 10-15 pages with voluminous evidence organized as exhibits to support the claims made in the extreme hardship waiver statement.

The favorable factors in this case are as follows:

Both parents of the applicant has type 2 diabetes and high cholesterol.
The applicant’s 63 year old father is hypertensive and has had 2 strokes.
The applicant’s 57 year old mother is being monitored for coronary heart disease and possible breast cancer, and has been diagnosed with major depression and anxiety as a result of separation from her son and related need to sell her restaurant.
The applicant, before his deportation, took his parents to their physicians, made sure they took their medication, and watched over them.
The applicant’s U.S. citizen is also intimately involved facilitating medical care for her in-laws.
The applicant’s U.S. citizen wife has been diagnosed with major depression, paranoia, and anxiety and suffers from insomnia, anxiety, and impaired daily functioning. She has been prescribed medications. Her substantial fears about separation from her daughter causes her to spend all day in-doors with her child, which has been described as unhealthy by their doctor.
The applicant’s father was laid off from his work, causing him and his wife to lose their health insurance coverage.
The applicant’s mother was forced to sell the family restaurant, largely because it was not possible to continue operating it without the applicant’s help .
The applicant’s wife spends 10-12 hours a day running a business owned by the applicant. This business is suffering due to the applicant’s absence from the United States. It is the sole source of the applicant’s wife income, and she has been forced to move in with her in-laws because she doesn’t have money to afford her own place.
The applicant helped his mother and father make payments on their home mortgage. With the sale of the applicant’s mother’s restaurant and his own business suffering in his absence, there is not enough income to meet the monthly mortgage payments. As a result, his mother, father, wife and child are at risk of losing their home.
The applicant’s father sold everything when he left Albania and has nothing left there. He is also a lawful permanent resident and would lose his LPR status if he re-locates to Albania to be with the applicant.
The applicant’s wife’s parents both live in the United States.
The Dept. of State states that healthcare in Albania falls short of U.S. standards, and acknowledges that emergency and major medical care requiring surgery outside Tirana (the capital of Albania) is particularly problematic.
When the applicant’s wife and their infant daughter visited Albania, the daughter fell sick with bronchial pneumonia.
The Dept. of State states that organized crime, street crime, and violence in Albania are a significant problem and increased in recent years.
There are limited work opportunities for women in Albania. Additionally, the applicant’s parent’s old age and declining health makes their employment prospect also limited.
The applicant has no criminal record and has resided in the United States for over 12 years.
The applicant has worked, paid his taxes, and and creating jobs for U.S. workers during his stay inside the United States.
The applicant has resided for over 2 1/2 years abroad after being deported from the U.S.

« Previous Page