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I-601 Waiver Approved by I-601 Attorney Michael Cho

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

Our office received approval of the I-601 waiver on behalf of the Brazilian wife of a U.S. citizen. She had previously entered the U.S. as the K-1 fiancee of her U.S. citizen husband. However, the couple attempted to handle her adjustment of status themselves, leading to mistakes in the filing of the application. She then departed the U.S. after exceeding her authorized period of stay by over one year. Our office was contacted after she was deemed inadmissible to the U.S. based on Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, for having been unlawfully present in the United States for more than one year and seeking readmission within 10 years of her last departure from the United States.

INA Section 212(a)(9)(B)(v) provides that a waiver, under INA Section 212(a)(9)(B)(i)(II), is applicable solely where the applicant establishes extreme hardship to her U.S. citizen or lawfully resident spouse or parent. Extreme hardship is “not a definable term of fixed and inflexible content or meaning, but necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964 ).

In Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565-66 (BIA 1999), the Board of Immigration Appeals (BIA) provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.

The Board of Immigration Appeals has also made it clear that although hardships may not be extreme when considered abstractly or individually, “relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of O-J-O, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882). The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.”

The Board of Immigration Appeals has also held that hardship factors such as family separation, economic disadvantage, cultural readjustment, et cetera, differ in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships. See, e.g., Matter of Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch regarding hardship faced by qualifying relatives on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which they would relocate).

As an example, the Board of Immigration Appeals has found family separation, a common result of inadmissibility or removal, can also be the most important single hardship factor in considering hardship in the aggregate. See Salcido-Salcido, 138 F.3d at 1293 (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983; but see Matter of Ngai, 19 I&N Dec. at 247 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

In support of my client’s I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to define “extreme hardship.” This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief.

The positive factors in this case included:

The U.S. citizen husband suffered from high blood pressure, which was shown to be a hereditary disease influenced by lifestyle factors. He was also diagnosed with Clinical Depression, with a rapidly deteriorating condition as a result of a miscarriage suffered by his wife during the immigration process.
The U.S. citizen husband’s mother recently suffered two heart attacks and was now dependent on her son to take care of her, hand-feed her meals, and provide for her financially. He could not move to Brazil without abandoning his U.S. citizen mother and putting her health at risk.
The U.S. citizen husband received medical care for his high blood pressure and clinical depression through the insurance provided by his U.S. employer. We demonstrated that his work performance had suffered noticeably due to the stress and emotional toll caused by the separation from his wife.

As a result of the I-601 waiver prepared and submitted by our office, she has received her lawful permanent resident status and the couple is now re-united inside the United States.

I-601 Waiver Approval

July 29, 2013 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of an I-601 waiver filed on behalf of a Mexican wife and her U.S. citizen husband. Our client entered the United States without inspection over 12 years ago with her family and has lived in the U.S. since then. She was deemed inadmissible to the U.S. based on Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, for having been unlawfully present in the United States for more than one year and seeking readmission within 10 years of her last departure from the United States.

This case was decided before the current I-601A provisional waiver came into effect. As a result, we first obtained approval of the I-130 Petition for Alien Relative. Our client then traveled to the U.S. consulate in Ciudad Juarez to attend her consular interview where she submitted the I-601 waiver package I prepared on her behalf. In support of her I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to define “extreme hardship.” This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief.

This case was particularly challenging because our client and her husband had no children. The U.S. citizen husband also had no medical problems of note, and his U.S. citizen parents were in relatively good health. However, the U.S. citizen husband was in the U.S. Navy serving on board a guided missile cruiser. Among a variety of extreme hardships discussed, we showed that the extreme psychological hardship he would suffer upon separation from his wife would seriously impact his ability to perform his critical military duties. Alternatively, moving to Mexico to be with his wife would not be possible since that would be considered desertion and lead to a court marshal. This case was approved and our client now resides legally inside the United States as a lawful permanent resident.

I-212 Waiver Approved

July 26, 2013 By Michael Cho Immigration Lawyer 6 Comments

We received approval of a Form I-212, Applicant for Permission to Reapply for Admission into the United States After Deportation or Removal. The I-212 waiver was required due to our client having been removed from the U.S. upon arrival at a U.S. airport. She had visited the U.S. several times in the past but unknowingly overstayed her authorized period of stay during her previous visit. As a result, her visa was revoked and she was removed from the country when she applied for admission at the port of entry.

Our client returned to her home country of Romania, where she met, fell in love with, and married a U.S. citizen who was on long-term assignment for his company there. The U.S. citizen filed for his wife’s I-130 Petition for Alien Relative, which was approved and sent to the U.S. embassy for consular processing. When she arrived at the interview, she was informed by the consular officer of her need to file the I-212 waiver. Our office was subsequently contacted to prepare and file the I-212 on her behalf.

Section 212(a)(i)(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.

In support of her I-212 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to adjudicate an I-212 waiver application. The legal standards discussed included those set forth by the Board of Immigration Appeals in its precedent decision, Matter of Tin. “Extreme hardship” to the U.S. citizen spouse was also discussed in-depth as a favorable factor in this matter. Some of the factors elaborated upon in this brief were:

Basis for the prior removal;
Recency of the removal;
Moral character of the applicant;
Respect for law and order;
Evidence of reformation and rehabilitation;
Family responsibilities;
Hardship involved to the applicant and others;
The need for the applicant’s services in the U.S.; and
Whether the applicant is subject to any other grounds of inadmissibility.

The I-212 waiver package also included supporting exhibits that provided proof of the statements made in the legal brief.

After consideration of the I-212 waiver we submitted to the USCIS Field Office with jurisdiction over her removal, the Field Office Director approved our I-212 waiver application, granting her permission to reapply for admission into the United States. The approved I-212 waiver was sent to the U.S. embassy in Bucharest, which issued her the immigrant visa to enter the U.S. lawfully as a permanent resident.

I-601 Waiver Approved by Waiver Attorney Michael Cho

July 25, 2013 By Michael Cho Immigration Lawyer Leave a Comment

We received approval of a client’s immigrant visa petition and I-601 Application for Waiver of Grounds of Inadmissibility. Our office prepared and filed the I-130 petition, secured its approval, then put together a comprehensive I-601 waiver package that was submitted to the USCIS for adjudication. The I-601 waiver was approved and our client obtained his immigrant visa at the U.S. consulate in Ciudad Juarez before returning to the U.S. as a lawful permanent resident.

Our client was a native of Mexico who entered the U.S. without inspection over 11 years ago. He subsequently married a U.S. citizen and they had a daughter together. He required the I-601 Application of Waiver of Grounds of Inadmissibility due to his unlawful presence of over 1 year inside the United States, which made him subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B).

An I-601 Application for Waiver of Grounds of Inadmissibility requires a showing that the applicant’s U.S. citizen spouse or parent would suffer “extreme hardship” if the applicant is refused admission into the United States. “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.

In support of his I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of his situation met the legal standards used to define “extreme hardship.” This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief.

Factors in the favor of our client were the following:

Our client had no criminal record and was a law-abiding individual his entire life except for the immigration mistake he made to enter and live illegally inside the U.S.
His U.S. citizen wife had suffered from severe kidney and bladder infections her entire life. We obtained a letter from her physician confirming her chronic condition and recommending regular check-ups and treatment inside the United States
Their daughter had been diagnosed with jaundice. We obtained a letter from her physician confirming her illness and recommending regular check-ups inside the United States.
We provided a report of the Mexican health system and demonstrated that the U.S. citizen wife and daughter would not be able to receive reliable and adequate medical care for their conditions in rural Mexico where the Mexican husband was from.
The U.S. citizen wife and child received medical care in the United States through health insurance provided by the Mexican husband’s employment in the United States. Without his presence and employment in the U.S., they would lose their medical coverage. On the other hand, moving to Mexico would also mean no longer being able to obtain medical treatments since she could not afford private health insurance given their pre-existing conditions.
Our client was a devoted husband and father who took care of his U.S. citizen wife and child on a daily basis and worked hard to pay for their rent, food, and other living expenses. They would suffer financial hardship without his presence given their health problems and the U.S. citizen wife serving as the primary care-giver for their young daughter.
We submitted a psychological report which diagnosed the U.S. citizen wife with Clinical Anxiety Disorder. We showed the interrelationship between psychological and physical disease, and presented evidence to show that her condition would worsen without the presence of her husband together with her in the United States.

As a result of the I-601 waiver approval, this family now lives inside the United States as lawful, contributing citizens of the United States.

Adjustment of Status Approved – Client Review by Frank D.

July 21, 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.

Our family used Michael’s counsel several years back for adjustment of status.

We weren’t going the route of those big name firms, loudly advertising on various media channels every 10 minutes. Other acquaintances reported of signing on with these firms, but complained they always felt they were an anonymous case, dealing with revolving paralegals time and again. Theirs were nightmares of being stuck in legal limbo for years — not making any progress at all, but that retainer still had to be renewed and paid. I definitely wasn’t taking my family that route.

After canvassing and interviewing many immigration law firms, all I can visualize on the other end of the receiver each time were cartoony dollar signs talking *at* me. I stopped when I reached Michael S. Cho. I didn’t hear the usual mumbo jumbo, his timeline was sensible and clear, and his up-front price seemed fair. After I checked out his pedigree (University of Chicago Law School) and read his other reviews, we decided to go with Michael S. Cho.

I cannot impress more how appreciative and grateful we were of how Michael managed our case. Michael is an adroit communicator and demonstrated a great deal of knowledge with current legislation. He stuck with the original timeline (less than a year), and was very responsive with all of our queries along the way. I usually received a response from him within 24 hours. And even better yet, I never spoke to a paralegal or an associate attorney; we dealt with our attorney, Michael S. Cho, directly each time. Not once did I ever feel that we were churning in some legal mill of a money pit.

It may sound oxymoronic — but I gathered that Michael S. Cho is an honestly decent immigration attorney. We never felt that he was beating around the bush or holding us out for even more money. Though we mainly communicated via phone and email, I always felt Michael exemplified good qualities of integrity and that he always treated us with dignity. He did the job, and he’s *very good* at what he does. Suffice to say, I highly recommend him now to friends and acquaintances when appropriate.

By Frank D. in San Francisco, CA

Defining Extreme Hardship in I-601 Waiver Cases

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

According to Section 212(a)(9)(B) of the Immigration & Nationality Act, an alien unlawfully present in the United States for one year or more who again seeks admission to the U.S. within 10 years of the date of alien’s departure or removal from the U.S. is inadmissible.

However, Section 212(a)(9)(B)(v) of the Act provides for a waiver of section 212(a)(9)(B)(i) inadmissibility if the inadmissible alien can establish that refusal of admission would result in extreme hardship to the U.S. citizen or lawfully resident spouse or parent of the alien. This is also referred to as the I-601 waiver, or the I-601 “extreme hardship” waiver.

Extreme hardship is “not a definable term of fixed and inflexible content or meaning, but necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang,10 I&N Dec. 448, 451 (BIA 1964 ). In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include:

the presence of a lawful permanent resident or United States citizen spouse or parent in this country;
the qualifying family ties outside the United States;
the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries;
the financial impact of departure from this country;
and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate

The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive.

The Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include:

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

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

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “relevant factors, though not extreme in themselves must be considered in the aggregate in determining whether extreme hardship exists.” Matter of O-J-O, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882). The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.”

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships. See, e.g., Matter of Bing Chih Kau and Aiei Tsui Un, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch regarding hardship faced by qualifying relatives on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which they would relocate)

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. See Salcido-Salcido, 138 F.3d at 1293 ( quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 247 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

Therefore, when adjudicating I-601 waivers, it is the totality of the circumstances that will determine whether denial of admission would result in extreme hardship to a qualifying relative.

I-601A Provisional Waiver Update

July 15, 2013 By Michael Cho Immigration Lawyer Leave a Comment

The American Immigration Lawyers Association (of which I am a member) reports that I-601A Provisional Waiver applicants are receiving denials based on the grounds that the USCIS has “reason to believe” the applicant may be inadmissible on grounds other than unlawful presence.

There are reports that denials are being issued despite evidence submitted to show that the arrest did not result in a criminal conviction, or that the incident was not conduct that would render an alien inadmissible, or that the crime for which the alien was convicted was not an inadmissible offense.

Additionally, the USCIS appears to be denying I-601A Provisional Waivers when the applicant previously provided a false name, date of birth, or other information at the time of apprehension for entry without inspection. The USCIS is issuing these denials based on the grounds that there is “reason to believe” that the alien knowingly and willfully provided false or materially misleading information while applying for an immigration benefit, even though the false or misleading information was not material or given in connection with a benefit application or application for admission.

It is thus extremely important that any arrest, criminal conviction, or immigrant apprehension be analyzed in detail before application for the I-601A Provisional Waiver.

The American Immigration Lawyers Association is currently working with the USCIS to clarify these adjudication standards and hopefully, obtain greater leeway on the approval of I-601A Provisional Waivers in the future.

I-601 Waiver Approved by Waiver Lawyer Michael Cho

July 6, 2013 By Michael Cho Immigration Lawyer Leave a Comment

We received approval of a client’s I-601 Application for Waiver of Grounds of Inadmissibility just 4 months after it was prepared and filed by my office. This was a particularly challenging case because the U.S. citizen husband was already residing in Ecuador with his wife and son for the past several years.

Our client was a native of Ecuador who used false immigration documents provided by others to enter the U.S over 14 years ago. She remained in the United States illegally for over 10 years before departing voluntarily back to her home country of Ecuador with her U.S. citizen husband. She required the I-601 Application of Waiver of Grounds of Inadmissibility due to her unlawful presence of over 1 year inside the United States, which made her subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B). She was also subject to the fraud/misrepresentation ground of inadmissibility under INA Section 212(a)(6)(C)(i) due to the use of a false document to enter the United States.

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.

In support of her I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to define “extreme hardship.” This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief. This case was particularly difficult given that the U.S. citizen husband was already living abroad in Ecuador with his wife. Proving extreme hardship was thus challenging since the USCIS could argue that the couple living together outside the U.S. for several years shows that the U.S. citizen is not suffering any extreme hardship.

Factors in the favor of our client were the following:

Our client had no criminal record and was a law-abiding individual her entire life except for the immigration mistakes she made to enter and live illegally inside the U.S.
Her U.S. citizen husband was suffering from a variety of medical problems while residing in Ecuador. We obtained medical records and a letter from his Ecuadorian physician providing a comprehensive diagnosis and recommending further testing and treatment in the United States
Her U.S. citizen husband had to pay privately for medical care in Ecuador while on a fixed Social Security income. This was shown to cause financial hardship. On the other hand, his medical care would be paid for by Medicare if he was able to return to the United States.
He could not return to the United States without his wife and young son, since he relied upon his wife to take care of him on a daily basis.
Our client was a devoted wife and mother (of their 5 year old son) who took care of her U.S. citizen husband regularly and helped him cope with his medical problems.
We submitted a psychological report which diagnosed our client’s U.S. citizen husband with Clinical Anxiety Disorder. We showed the interrelationship between psychological and physical disease, and presented evidence to show that his condition would worsen without the presence of his family together with him back in the United States.

As a result of the I-601 waiver approval, this family now lives back in the United States. The U.S. citizen husband is able to receive the affordable medical care he requires to stay healthy through Medicare.

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