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K-1 Fiancee Visa and Adjustment of Status Approved – Client Review by Robert Hanshew

February 17, 2015 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.

Mr.Cho, Just would like to thank you for our success in bringing my girls both home to me, via, K-1 Visa and US Citizen born abroad.. and, our latest adjustment of status (after marriage) In the case of Hanshew-Padios we are very grateful to you..We shall be using you’re services again this year to remove the conditions on my wife’s permanent resident status. Best wishes to you and yours in 2015 (the year of the Ram)

-Robert Hanshew

212(d)(3) Non-Immigrant Waiver and Humanitarian Parole – Client Review by Stuart L.

February 17, 2015 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 was concerned about using the internet to find a lawyer, but persuaded by the great reviews of Michael Cho’s work. The reviews are right on the mark. Michael called back immediately, and was careful to warn me that visa waivers are hard to get (the opposite of a hard sell). He is hard working, responsive and quite brilliant. I have never read work as well composed as his cover letter for the application I was working on. To top all of this, his fees are very reasonable. It looks like the application is now successful. I had paid a lot more in the past for poor quality work by a locally recommended firm. I appreciate Michael enormously and am so glad that I trusted internet reviews! A great lawyer.

Stuart L.

Deferred Action Expanded by Obama Executive Order

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

Deferred action is a form of prosecutorial discretion by which the Secretary of Homeland Security de-prioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the U.S. Department of Homeland Security’s overall enforcement mission. As an act of prosecutorial discretion, deferred action is legally available so long as it is granted on a case-by-case basis, and it may be terminated at any time at the agency’s discretion.

Deferred action does not confer any form of legal status in the U.S., much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States. Nor can deferred action itself lead to a green card. Although deferred action is not expressly conferred by statute, the practice is referenced and therefore endorsed by implication in several federal statutes.

Most recently, beginning in 2012, Secretary Napolitano issued guidance for case-by-case deferred action with respect to those who came to the United States as children, commonly referred to as “DACA.”

DACA provides that those who were under the age of 31 on June 15, 2012, who entered the United States before June 15, 2007 (5 years prior) as children under the age of 16, and who meet specific educational and public safety criteria, are eligible for deferred action on a case-by-case basis. The initial DACA announcement of June 15, 20 12 provided deferred action for a period of two years. On June 5, 2014, U.S. Citizenship and Immigration Services (USCIS) announced that DACA recipients could request to renew their deferred action for an additional two years.

In order to further effectuate this program, USCIS has been directed to expand DACA as follows:

Remove the age cap. DACA will apply to all otherwise eligible immigrants who entered the United States by the requisite adjusted entry date before the age of sixteen (16), regardless of how old they were in June 2012 or are today. The current age restriction excludes those who were older than 31 on the date of announcement (i.e., those who were born before June 15, 1981 ). That restriction will no longer apply.

Extend DACA renewal and work authorization to three-years. The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. This change shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014. Beginning on that date, USCIS should issue all work authorization documents valid for three years, including to those individuals who have applied and are awaiting two-year work authorization documents based on the renewal of their DACA grants. USCIS should also consider means to extend those two-year renewals already issued to three years.

Adjust the date-of-entry requirement. In order to align the DACA program more closely with the other deferred action authorization outlined below, the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1, 2010.

EXPANDING DEFERRED ACTION

USCIS has been directed to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis, to those individuals who:

• have, on November 20, 2014, a son or daughter who is a U.S. citizen or lawful permanent resident;

• have continuously resided in the United States since before January 1, 2010;

• are physically present in the United States on November 20,2014, and at the time of making a request for consideration of deferred action with USCIS;

• have no lawful status on November 20, 2014

• are not an enforcement priority as reflected in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and

• present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.

DHS will implement a new department-wide enforcement and removal policy that places top priority on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border; the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014; and the third priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014.

Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal.

I-601A Provisional Waiver Program Expanded Pursuant to Obama Executive Order

November 24, 2014 By Michael Cho Immigration Lawyer 2 Comments

Under current law certain undocumented individuals in this country who are the spouses and children of U.S. citizens and lawful permanent residents, and who are statutorily eligible for immigrant visas, must leave the country and be interviewed at U.S. consulates abroad to obtain those immigrant visas. If these qualifying individuals have been in the United States unlawfully for more than six months and later depart, they are, by virtue of their departure, barred by law from returning for 3 or 10 years.

Current law allows some of these individuals (i.e., a spouse, son, or daughter of a U.S. citizen or permanent resident) to seek a waiver of these 3- and 10-year bars if they can demonstrate that absence from the United States as a result of the bar imposes an “extreme hardship” to a U.S. citizen or lawful permanent spouse or parent. But, prior to 2013, the individual could not apply for the waiver until he or she had left the country for a consular interview.

In January 2013, the Department of Homeland Security (DHS) published a regulation establishing a process that allows a subset of statutorily eligible individuals to apply to USCIS for a waiver of the 3- and 10-year bars before departing abroad for consular interviews. This “provisional” waiver provided eligible individuals with some level of certainty that they would be able to return after a successful consular interview and would not be subject to lengthy overseas waits while the waiver application was adjudicated.

However, the 2013 regulation extended the provisional waiver process only to the spouses and children of U.S. citizens. In 2013 DHS did not initially extend the provisional waiver to other statutorily eligible individuals-i.e., the spouses and children of lawful permanent residents and the adult children of U.S. citizens and lawful permanent residents – to assess the effectiveness and operational impact of the provisional waiver process. To date, approximately 60,000 individuals have applied for the provisional waiver, a number that is less than was expected.

USCIS is now ordered to amend its 2013 regulation to expand access to the provisional waiver program to all statutorily eligible classes of relatives for whom an immigrant visa is immediately available.

This means that the I-601A Provisional Waiver program is now available to spouses and children of U.S. citizens and lawful permanent residents as well as to the adult children of U.S. citizens and lawful permanent residents.

It should however be kept in mind that spouses and children of lawful permanent residents and the adult children of U.S. citizens and lawful permanent residents may still face long wait times before the I-601A waiver can be submitted based on the retrogression dates published on the Department of State’s Visa Bulletin.

USCIS has also been ordered to provide additional guidance on the definition of “extreme hardship.” As noted above, to be granted a provisional waiver, applicants must demonstrate that their absence from the United States would cause “extreme hardship” to a spouse or parent who is a U.S. citizen or lawful permanent resident. The statute does not define the term, and federal courts have not specifically defined it through case law. Additional guidance about the meaning of the phrase “extreme hardship” has been deemed necessary to provide broader use of this legally permitted waiver program.

USCIS must thus clarify the factors that are considered by adjudicators in determining whether the “extreme hardship” standard has been met. Factors that should be considered for further explanation include, but are not limited to: family ties to the United States and the country of removal, conditions in the country of removal, the age of the U.S. citizen or permanent resident spouse or parent, the length of residence in the United States, relevant medical and mental health conditions, financial hardships, and educational hardships.

USCIS has been further directed to consider criteria by which a presumption of extreme hardship may be determined to exist.

Client Approval: Humanitarian Parole Approved for Medical Emergency within 23 Days of Filing

October 12, 2014 By Michael Cho Immigration Lawyer Leave a Comment

Our office recently received approval of a Humanitarian Parole request filed on behalf of a client who is subject to the 10 year “unlawful presence bar” pursuant to INA Section 212(a)(9)(B)(2). She previously entered the U.S. on a B-2 visitor visa but remained out of status in the U.S. for over 3 years before departing back to her home country.

Parole is governed my numerous Public Laws and U.S. national policy that includes INA Section 212(d)(5) which states:

The Attorney General may, except as provided in subparagraph (B) or in section 1184 (f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

It is important to realize that parole is a discretionary authority that allows for the temporary entry of individuals into the United States for urgent humanitarian reasons or for significant public benefit.

It does not constitute “admission” to the United States and it does not convey any immigration benefits to the beneficiary. Common parole requests include medical emergencies, the unification of family members (particularly parents and young children), civil and criminal proceedings, as well as other emergent requests.

The USCIS, ICE and CPB exercise concurrent parole authority. The USCIS authorizes parole for aliens outside the United States for many reasons, including humanitarian. ICE authorizes parole for aliens outside of the United States for many reasons, including law enforcement and intelligence purposes as well as to release detained aliens from custody. CBP authorizes parole at United States ports of entry, including pre-flight inspection facilities.

Humanitarian Parole is an extraordinary measure that allows an otherwise inadmissible alien to come to the United States for a compelling emergency. Cases involving life-threatening medical emergencies, family unification, children under 16 years of age, and physically and/or mentally challenged individuals receive immediate expedited review.

Approximately 1200 Humanitarian Parole requests are received per year and only 25% are granted. The vast majority of Humanitarian Parole requests as thus denied.

I prepared a comprehensive Humanitarian Parole application package on behalf of my client that included:

A detailed point-by-point memorandum presenting the emergency, compelling, and urgent nature of her request
A discussion of my client’s strong, permanent, and irrefutable ties to her country of residence that refuted any notion of “immigrant intent”
A discussion of her rehabilitation from her previous violation of U.S. immigration laws, her good moral character, and that she poses no risk of harm to the United States upon her entry
A discussion of the life-threatening consequences to her U.S. citizen brother should she not be allowed immediately into the United States
A discussion of the significant public benefits to the United States and its citizens served by my client’s entry into the U.S.
A table of exhibits with objective evidence that documented every statement made in the memorandum

Within 23 days of submitting our Humanitarian Parole application package, our request was approved by the USCIS. Our client was granted parole authorization to enter the United States for 7 weeks despite being subject to the 10 year “unlawful presence bar.”

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.

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 ).

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 –

(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.

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.

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