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I-601 Waiver for Fraud/Misrepresentation Approved, Inadmissibility for Crimes Involving Moral Turpitude Removed, after Successful Writ of Mandamus Federal Lawsuit

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I-601 Waiver for Fraud/Misrepresentation Approved, Inadmissibility for Crimes Involving Moral Turpitude Removed, after Successful Writ of Mandamus Federal Lawsuit

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for the foreign husband of a U.S. citizen spouse who was subject to a life-time bar from being admitted to the United States for conviction of multiple crimes involving moral turpitude under INA Section 212(a)(2)(A)(i)(I) and fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

The applicant’s U.S. citizen spouse contacted my office for assistance in obtaining a waiver of both INA Section 212(a)(6)(C)(i) and 212(a)(2)(A)(i) after their previously filed I-601 waiver application (prepared by their previous attorney) was denied. In that first denial, the applicant’s past criminal convictions (“Infliction of Bodily Injury on another Individual”) were deemed by USCIS to be a “violent or dangerous crime” (8 C.F.R.) § 212.7(d).

USCIS does not generally exercise favorable discretion to approve a waiver under INA § 212(h) in cases involving violent or dangerous crimes unless there are extraordinary circumstances present (8 C.F.R.212.7(d)), which include national security considerations; foreign policy considerations; or cases in which the refusal of admission would result in “exceptional and extremely unusual hardship”:

Criminal grounds of inadmissibility involving violent or dangerous crimes. The Attorney General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Immigration & Nationality Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act. 8 C.F.R. §1212.7(d)

In other words, not only did our client’s initial I-601 waiver prepared by their previous attorney get denied; their situation was made worse by the USCIS classifying the applicant’s crimes as being “violent or dangerous.”

We prepared a comprehensive I-601 waiver package including a 45 page legal memorandum arguing that the past criminal convictions of our client are neither “crimes involving moral turpitude” nor “violent or dangerous”; the extenuating circumstances surrounding our client’s failure to disclose these convictions on a prior ESTA application (which led to a finding of fraud/misrepresentation by the U.S. consular officer during his immigrant visa interview); and the exceptional and extremely unusual hardships and compelling discretionary factors present in this case.

As part of our immigrant waiver preparation process, we always provide a comprehensive waiver worksheet containing a thorough array of questions for our clients to answer about their lives.  This allows us to “brainstorm” every relevant factor (such as medical, physical, psychological, financial, legal, or other hardships) that may apply. We then analyze each factor and decide upon the most effective way to present it to the USCIS in our waiver application.

Our waiver worksheet also contains a long checklist of supporting documents to gather and present based upon our experience with successful waiver applications submitted during the past 20+ years.

Overall, our waiver preparation process is constantly improved upon since we regularly prepare and submit winning immigrant waiver applications for clients who come from countries throughout the world. We are proud to receive multiple approvals on I-601, I-601A, I-212, and 212(d)(3) waiver applications filed on behalf of our clients every single month.

After our I-601 waiver package was submitted and our clients experienced an excessively long delay in receiving a decision from USCIS, I filed a Writ of Mandamus lawsuit against USCIS in the Federal District Court of the Central District of California on behalf of my client.

As part of the Writ of Mandamus lawsuit filed against USCIS, I negotiated with a Special Assistant United States Attorney from the U.S. Department of Justice to reach a favorable outcome for my client. As a result, USCIS not only approved our client’s I-601 waiver, but we were able to get attorneys at the U.S. Department of State to remove the prior finding that our client’s criminal convictions consistuted “crimes involving moral turpitude” altogether.

Section 212(a)(2)(A) of the INA states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien was released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of the application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

The Board of Immigration Appeals (BIA) held in Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992), that:

[M]oral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.. ..In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

We specifically highlighted in our I-601 waiver that determinations of whether a foreign conviction constitutes a Crime Involving Moral Turpitude (CIMT) requires a categorical analysis, one limited to the elements of the statutory offense, without reference to the specific acts of the individual that satisfy those elements.

This approach is codified in the Foreign Affairs Manual at 9 FAM 40.21(a) N2.1 “Evaluating Moral Turpitude Based Upon Statutory Definition of Offense and U.S. Standards.”

To render an alien ineligible under INA 212(a)(2)(A)(i)(I), the conviction must be for a statutory offense, which involves moral turpitude. The presence of moral turpitude is determined by the nature of the statutory offense for which the alien was convicted, and not by the acts underlying the conviction. Therefore, evidence relating to the underlying act, including the testimony of the applicant, is not relevant to a determination of whether the conviction involved moral turpitude except when the statute is divisible (see 9 FAM 40.21(a) N5.2) or a political offense (see 9 FAM 40.21(a) N10). The presence of moral turpitude in a statutory offense is determined according to United States law. [Emphasis in original].

The FAM list examples of specific offenses that qualify as CIMT including crimes involving fraud, larceny, and intent to harm persons or things. [9 FAM 40.21(a) N2.2]. The manual also provides a list of offense which do not constitute CIMT, which list includes:

Assault (simple) (i.e., any assault, which does not require an evil intent or depraved motive, although it may involve the use of a weapon, which is neither dangerous or deadly) [9 FAM 40.21(a) N2.3-3(b); emphasis added].

We re-iterated in our review of the legal standard for classifying a foreign offense as a CIMT, that the USCIS must not consider any of the evidence of the underlying act. Rather, the USCIS must engage in an analysis of the elements of the foreign statutory offense. For a foreign offense to qualify as a CIMT, one of the elements of the offense must be a Mens Rea or specific intent on the part of the offender to cause harm to person or things, or, in the words of the BIA in Perez-Contreras, an intent showing “vicious motive or corrupt mind.” Id. at 617-18.

Thereafter, we analyzed the elements of the foreign criminal statute that our client was found guilty of, and proved that this statute does not contain the mens rea, or intent to inflict harm. Additionally, we noted that the Foreign Affairs Manual of the U.S. Department of State does not permit classification of a crime of “simple assault” as a CIMT. Rather, assaults criminalized by law may only be classified as a CIMT if an element of the offense “requires an evil intent or depraved motive.” [9 FAM 40.21(a) N2.3-3(b)].

In support of our legal analysis, we also included the legal opinion of a foreign criminal lawyer who noted that in the home country of the applicant, the disposition of a punishment of fine is imposed when the offense is not serious and very minor.

As a result of the detailed legal arguments made in our I-601 waiver application, along with my advocacy on behalf of my clients in federal court, the attorneys at the U.S. Department of State agreed that the applicant’s prior criminal convictions do not constitute crimes involving moral turpitude and withdrew that previous finding of inadmissibility.

INA 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.

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.

A waiver of inadmissibility under section 212(i) of the Act is dependent on a showing that the bar to admission imposes extreme hardship on a qualifying relative, which includes the U.S. citizen or lawfully resident spouse or parent of the applicant.  If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id . at 566.

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

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882). The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Id.

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.,, 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. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

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

The favorable factors we highlighted in this I-601 Waiver to obtain approval of the fraud/misrepresentation inadmissibility include the following:

  • the U.S. citizen spouse was a member of the U.S. Armed Forces who was honorably discharged after having been awarded multiple medals and commendations
  • the U.S. citizen spouse has major medical service-related disabilities and is considered 90% disabled by the Veteran’s Administration.
  • The U.S. citizen spouse suffers from orthopedic ailments that limit her mobility and physical functioning and has been diagnosed with Post-Traumatic Stress Disorder.  
  • the U.S. citizen spouse is the primary care-taker of her elderly father who is a retired U.S. law enforcement officer and suffers from a variety of ailments.  
  • the foreign spouse has played a critical role in caring for the U.S. citizen spouse’s elderly and infirm father for many years
  • the U.S. citizen spouse has been deteriorating steadily due to her myriad of ailments and likely to experience several financial hardship due to her inability to work

Due to our efforts on behalf of this family including a Writ of Mandamus lawsuit filed against USCIS in federal court, the I-601 waiver for the inadmissibility of fraud/misrepresentation was approved; the inadmissibility for conviction of crimes involving moral turpitude was removed; and this family can soon reside together in the United States.  

I-601 and I-212 Waivers Approved for U.S. Citizen Spouse and Mexican Spouse currently residing outside the United States

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I-601 and I-212 Waivers Approved for Mexican Spouse of U.S. Citizen, both of whom reside outside the United States

Our office received approval of both the I-601 Waiver (Application for Waiver of Grounds of Inadmissibility) and I-212 Waiver (Application for Permission to Reapply for Admission) for the Mexican spouse of a U.S. citizen husband, both of whom presently reside outside the United States.

Note: It is important to keep in mind that under current guidelines for the submission of I-601 or combined I-601 and I-212 waiver applications, immigrant visa applicants must first be denied for an immigrant visa by the consular officer at the U.S. embassy or consulate abroad, before they are eligible to submit their I-601 or combined I-601 and I-212 waiver packages.

For practical purposes, when the I-601 “Extreme Hardship” waiver is filed together with the I-212 Waiver, preparing a winning I-601 waiver application (by demonstrating extreme hardship to the qualifying relative and presenting a situation that warrants favorable discretion by the adjudicating officer) allows the applicant to also meet the standard for approval of the I-212 waiver.

In other words, if your I-601 waiver is approved, then the I-212 waiver will generally be approved as well.

Our client was subject to the 5 year “expedited removal” ban due to being removed from the United States during her most recent attempted entry into the United States on a valid B-1/B-2 visa. During this incident, she was also charged with a life-time ban for fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

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).

In Matter of Tin, 14 I & N 371 (1973), and Matter of Lee, 17 I & N Dec. 275 (1978), the Board of Immigration Appeals established the standards to be considered in adjudicating applications for permission to reapply.

In Matter of Tin, the BIA stated that in determining whether consent to reapply for admission should be granted, all pertinent circumstances relating to the application should be considered including: 1. the basis for deportation; 2. recency of deportation; 3. applicant’s length of residence in the United States; 4. the applicant’s good moral character; 5. the applicant’s respect for law and order; 6. evidence of reformation and rehabilitation; 7. The applicant’s family responsibilities; 8. Any inadmissibility to the United States under other sections of law; 9. hardship involving the applicant and others; 10. the need for the applicant’s services in the United States; and 11. whether the applicant has an approved immigrant or non-immigrant visa petition.

In Matter of Lee, the BIA stated that INA 212(a)(9)(A)(iii) was intended to be remedial rather than punitive, explaining that the factor of “recency of deportation” can only be considered when there is a finding of poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience.

INA 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.

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.

A waiver of inadmissibility under section 212(i) of the Act is dependent on a showing that the bar to admission imposes extreme hardship on a qualifying relative, which includes the U.S. citizen or lawfully resident spouse or parent of the applicant.  If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

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.

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id . at 566.

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

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

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, 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 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).

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

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

We prepared a detailed and comprehensive waiver package requesting approval of our client’s I-601 and I-212 waiver applications, including a 36 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship,” together with a collection of 22 different exhibits to prove the essential elements of our case.

This was a particularly challenging case since both the U.S. citizen and foreign spouse presently reside in the country of Mexico. We therefore made sure to elaborate upon on the extreme hardships being presently suffered by the U.S. citizen spouse while living outside the United States; how these hardships are being presently exacerbated and continue to worsen due to his continued residence outside of the United States; and alternatively, how re-locating back to the United States without his spouse would also trigger extreme hardships that could jeopardize his psychological and physical health.

Relevant factors in this case included:

  • The U.S. citizen spouse suffers from Generalized Anxiety Disorder and Persistent Depressive “Dysthymic” Disorder, with mental health issues including addiction that date back to childhood and have required psychotherapeutic treatment and medication.
  • The U.S. citizen spouse attempted to reside in the United States while visiting his foreign spouse (who resides in Mexico) in the past, but the separation and stress proved psychologically devastating for him, and directly contributed to his relapse into addiction
  • The U.S. citizen spouse presently resides in Mexico with his foreign spouse but still maintains his U.S.-based employment, leading to unreasonably long commute times every single day, causing deterioration of his fragile psychological and emotional state
  • Re-location to Mexico has cut off the U.S. citizen spouse from his close family members, and prevents him from providing care and support for his seriously ailing father and grandfather. This is leading to psychiatric distress over being unavailable to provide the care and support his family members need, to whom he is very close.

Due to our efforts, our client was approved for both the I-212 waiver and I-601 waiver after submission to the USCIS.  This family can now lawfully reside together inside the United States.

212(d)(3) Non-Immigrant Waiver Approved for B-1/B-2 Visa Applicant Charged with Fraud/Misrepresentation and Conviction of Crimes involving Moral Turpitude

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212(d)(3) Non-Immigrant Waiver Approved for B-1/B-2 Visa Applicant Charged with Fraud/Misrepresentation and Conviction of Crimes involving Moral Turpitude

We recently received approval for a 212(d)(3) non-immigrant waiver prepared on behalf of a South Korean client who was subject to a life-time bar from entering the United States due to being charged with fraud/misrepresentation pursuant to INA Section 212(a)(6)(C)(i) and multiple convictions of Crimes Involving Moral Turpitude under INA Section 212(a)(2)(A)(i).

Our client previously attended middle school, high school, and university in the United States before returning to his native country of South Korea. He recently attempted to re-enter the United States as a temporary visitor to visit his family members and long-time friends, as well as pursue an entrepreneurial venture in partnership with a U.S.-based company.

He was denied entry due to being charged with fraud/misrepresentation under INA Section 212(a)(6)(C)(i) and multiple convictions of Crimes Involving Moral Turpitude under INA Section 212(a)(2)(A)(i). He subsequently contacted my office for assistance in obtaining a waiver of both INA Section 212(a)(6)(C)(i) and 212(a)(2)(A)(i) , as well as approval of a B-1/B-2 visa to temporarily visit the U.S. in the future.

We prepared a comprehensive 212(d)(3) non-immigrant waiver in the form of a fourteen-page legal brief discussing the three legal factors set forth by Matter of Hranka, 16 I&N Dec. 491 (BIA 1978). We also submitted twelve separate exhibits supporting all of the factors set forth in our memorandum including: numerous affidavits; financial documentation; police reports and court records; military service records; business presentations and documentation; along with other vital evidence we have found necessary to secure approval of the 212(d)(3) waiver.

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 our client’s case, we addressed each of the factors laid out by Matter of Hranka emphasizing the importance of our client’s reason for entering the U.S.: namely, the vital importance of allowing a prior student of the United States educational system to re-visit the U.S. and visit his long-time friends; allowing our client to visit his U.S. citizen relatives who he has not seen for over 7+ years; and to facilitate the growth of the U.S. economy and promote international trade by allowing our client to meet with a U.S. company that he has entered into a contractual business agreement with.

We emphasized the non-existent risk of our client overstaying or violating the terms of a B-1/B-2 visa, given his ownership and operation of a South Korean company that requires his day-to-day managerial and operational presence; his prior lawful presence in the United States as a foreign student on a valid F-1 visa; our client’s intimate support and long-term commitment to his parents, who rely upon our client for their overall care and payment of household expenses; and our client’s legitimate business need to meet with a U.S. company, with whom he has entered into a contractual agreement.

Based upon these factors, our client was first recommended for the 212(d)(3) waiver by the interviewing consular officer at the U.S. embassy; then later approved for the 212(d)(3) non-immigrant waiver by the Admissibility Review Office in Washington D.C.; and finally, for the B-1/B-2 Visitor Visa.

These types of cases are difficult to get approved due to the tendency of US consular officers to attribute “immigrant intent” to non-immigrant visa applicants and consequently, refuse recommendation of the 212(d)(3) waiver.  This was especially so in this case because our client had multiple grounds of inadmissibility which he was subject to.

Due to our extensive preparation of the waiver and lobbying undertaken to ensure its adequate consideration and review by the U.S. consulate, our client is now able to enter the United States, visit his family members and long-time friends, and further the success of his entrepreneurial venture.

I-601 Waiver Approved for Vietnamese Daughter of U.S. Citizen Father

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I-601 "Extreme Hardship" Waiver for Fraud/Misrepresentation Approved for Vietnamese Daughter

We obtained approval of the I-601 Application of Waiver of Grounds of Inadmissibility for the Vietnamese daughter of a U.S. citizen father who was subject to a life-time bar for fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

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

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

Our client was previously married to a U.S. citizen husband for 6 years. She tried to immigrate to the United States through marriage to her U.S. citizen spouse but was denied for an immigrant visa because the consular officer at the time believed their marriage to be fraudulent. She was subsequently denied again for a non-immigrant visa based on the prior finding of fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

I was contacted by the client and her family to assist them in preparing and obtaining approval of the I-601 waiver of the finding of inadmissibility by the US consulate in Ho Chi Minh City, Vietnam. The I-130 Petition for Alien Relative had been filed by our client’s U.S. citizen father; approved by the USCIS; National Visa Center processing completed; and the submission and approval of this waiver was the only way by which the applicant would ever be allowed to enter the U.S. as an immigrant (i.e. as a U.S. lawful permanent resident).

Note: It is important to keep in mind that under current guidelines for the submission of I-601 or combined I-601 and I-212 waiver applications, immigrant visa applicants must first be denied for an immigrant visa by the consular officer at the U.S. embassy or consulate abroad, before they are eligible to submit their I-601 or combined I-601 and I-212 waiver packages.

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.

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id . at 566.

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

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

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, 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 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).

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

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

We prepared a detailed and comprehensive I-601 waiver application including a 30 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship,” together with a collection of 18 different exhibits to prove the essential elements of our case.

The “extreme hardship” factors presented as part of our case included included the day-to-day care that the U.S. citizen father requires due to suffering from Renal Failure, Hypertension, Prediabetes, Latent Tuberculosis, Hemorrhoids, and Back Pain. These conditions have left the U.S. citizen father unable to drive; greatly limited in mobility; and in persistent pain throughout the day.

Although the U.S. citizen father has his U.S. citizen wife as well as his two younger children who help him as best they can, we demonstrated that his elderly wife is greatly limited in her ability to provide the care that her husband needs due to her need to keep employed as well as her own infirmities. Additionally, we also showed that his younger daughter (who lives with her father and mother) also works full-time to financially support the family; her income is critical to meet the needs of this financially struggling family; and she simply does not have the time to devote to the constant care needed by her ailing father.

We went in-depth into this family’s history, showing the devastating toll having to leave the eldest daughter in Vietnam (while the rest of the family immigrated to the United States) has had on the U.S. citizen father, including a diagnosis of Generalized Anxiety Disorder and Persistent Depressive Disorder, made by a clinical psychologist who specializes in performing psycho-social evaluations for immigrant waiver cases.

Just as importantly, we demonstrated how the existing medical, psychological, emotional, and financial hardships being suffered by the U.S. citizen father are presently worsening due to the continued absence of the eldest daughter from the U.S. Without the medical, emotional, and financial support that the eldest daughter could provide from within the United States, the condition of the U.S. citizen father would continue to deteriorate, affecting the welfare of three other U.S. citizen family members who all desperately need the presence and support of the waiver applicant in their lives.

We also showed the potentially life-threatening impact that re-location to Vietnam would have on the U.S. citizen father given his compromised physical and psychological state, including the limited medical and psychological facilities that would be be available to him in Vietnam; his advanced age and inability to work to support himself in Vietnam; and the psychological toll of leaving his wife and two children in the U.S. would have on him, among other country-specific conditions.

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this family can now finally be united once again after a lengthy separation.

212(d)(3) Non-Immigrant Waiver for E-2 Treaty Investor Visa Application Approved

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212(d)(3) Non-Immigrant Waiver for E-2 Treaty Investor Visa Application Approved

We received  approval for the 212(d)(3) non-immigrant waiver prepared on behalf of a client who was subject to the fraud/misrepresentation life-time bar pursuant to INA Section 212(a)(6)(C)(i).

Our client is the owner of a US start-up company which develops, markets, and operates cost-effective web and mobile applications for small-scale organizations.  He contacted my office to help him obtain approval of the 212(d)(3) non-immigrant waiver so that he could enter the U.S. as an E-2 Treaty Investor Visa Holder to direct and manage his start-up more effectively. 

We subsequently 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 our client’s case, we addressed each of the factors laid out by Matter of Hranka including but not limited to:

  • The non-existent risk of our client overstaying or violating the terms of an E-2 visa, given the substantial amount of capital already invested in his U.S. start-up; the revenues currently being generated by the company; large-order commitments by U.S. customers; our client’s personal history which demonstrates a truly dedicated focus on bring his product and company vision to fruition; as well as our client’s personal and financial ties to his home country (where he owns property, operates another company, and where all of his close family members reside)
  • An extensive set of mitigating factors as it relates to the violation that caused our client’s inadmissibility
  • Our client’s history of recognized leadership and accomplishments in business and technology, including a demonstrated commitment to public service and contributing towards a better civic society
  • A variety of positive factors unique to our client’s situation that clearly warranted favorable discretion on the part of the US consular officer and the Admissibility Review Office

Based upon these factors, our client was approved for the 212(d)(3) non-immigrant waiver by the Admissibility Review Office in Washington D.C., and subsequently, for the E-2 Treaty Investor Visa.  These types of cases are difficult to get approved due to the tendency of US consular officers to categorically reject non-immigrant visa applications with only a cursory review when a ground of inadmissibility is present.

Due to our extensive preparation of the waiver and careful lobbying undertaken to ensure its adequate consideration and review by the U.S. consulate, our client is now able to enter the United States and further the success of his promising technology-based start-up.

I-601 Waiver for Fraud / Willful Misrepresentation Approved for Filipino Spouse

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I-601 Waiver for Fraud / Willful Misrepresentation Approved for Filipino Spouse

We obtained approval of the I-601 Application of Waiver of Grounds of Inadmissibility for the Filipino husband of a U.S. citizen who was subject to a life-time bar for fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

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

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

Our client entered the U.S. lawfully on a valid non-immigrant visa, met his U.S. citizen spouse, and fell in love.  They have been married for 14 years. He returned to the Philippines to pursue his studies, planning to return to the U.S. after graduation.  He failed to disclose a prior marriage on his original visa application and was consequently charged with fraud / willful misrepresentation pursuant to INA Section 212(a)(6)(C)(i) and deemed inadmissible at his immigrant visa interview.

I was contacted by the clients to assist them in preparing and obtaining approval of the I-601 waiver after the finding of inadmissibility by the U.S. embassy in Manila, Philippines.

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.

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id . at 566.

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

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

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, 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 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).

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

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

We prepared a comprehensive I-601 waiver application including a 29 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship.”

In particular, this includes the day-to-day care that the U.S. citizen spouse provides to her elderly mother, who suffers from diabetes, hypertension, and arthritis.  The U.S. citizen spouse lives with her elderly mother and they are each dependent on one another to oversee and manage the medical care they both vitally need.  Although the elderly mother of the U.S. citizen is not a qualifying relative per se under the INA Section 212(i), her well-being is intimately tied to that of the U.S. citizen spouse (who is the qualifying relative) and was thoroughly presented in our brief.

To provide more detail – should the U.S. citizen spouse be forced to re-locate to the Philippines to be with her husband, her elderly mother would lose her primary support giver.  This could be potentially life-threatening to her elderly mother given her fragile state; and such an event would traumatically affect the psychological and physical health of the U.S. citizen spouse which is already compromised.  Alternatively, should the U.S. citizen spouse have to remain in the U.S. without the support of her husband, her personal condition would likewise continue to deteriorate, affecting the welfare of two U.S. citizens who desperately need the presence and support of the waiver applicant in their lives.  In these types of scenarios, it is always important to present and prove the hardships of close relatives whose well-being are intimately tied to that of the qualifying relative; and demonstrate how both parties would be impacted by the immigration consequences of their situations.

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this couple now reside lawfully in the U.S. together once again after a separation of more than 9 years apart.

Exercise of Discretion by the USCIS Officer on Immigrant Waivers

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Exercise of Discretion by the USCIS Officer on Immigrant Waivers

If an immigrant waiver applicant meets all other statutory and regulatory requirements of a waiver, the USCIS officer must determine whether to approve the waiver as a matter of discretion. 

If the applicant does not meet another statutory requirement of the waiver, USCIS denies the waiver and a discretionary analysis is not necessary.

However, an officer may still include a discretionary analysis if the applicant’s conduct is so egregious that a discretionary denial would be warranted even if the applicant had met the other statutory and regulatory requirements.  Adding a discretionary analysis to a denial is considered useful if an appellate body on review disagrees with the officer’s conclusion that the applicant failed to meet the statutory requisites for the waiver.

According to the USCIS Policy Manual up-to-date as of August 23, 2017, meeting the other statutory and regulatory requirements of an immigrant waiver alone does not entitle the applicant to relief. See Reyes-Cornejo v. Holder, 734 F.3d 636 (7th Cir. 2013). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999). See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

The discretionary determination is the final step in the adjudication of a waiver application. The applicant bears the burden of proving that he or she merits a favorable exercise of discretion. See Matter of De Lucia, 11 I&N Dec. 565 (BIA 1966). See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957).

We consider the exercise of discretion by the adjudicating USCIS officer to be an essential part of any waiver approval that my office has obtained on behalf of our clients for the past 15 years.  Consequently, I always make sure to include every favorable factor from our client’s lives and backgrounds, that in our experience, have proven significant and pivotal in the approval of immigrant (and non-immigrant waivers) for our clients.

The legal basis for the exercise of discretion in immigrant waiver applications commonly filed by my office is highlighted below:

  1. 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.
  2. INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who:
    1. has a parent, spouse, son, or daughter who is a U.S. citizen or lawful permanent resident of the United States; and
    2. the parent, spouse, son, or daughter would suffer “extreme hardship” on account of the alien’s ineligibility to immigrate
    3. Waiver applicants must also show that their application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in his or her case.
  3.  INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) authorizes the Secretary to waive the 3- and 10-year unlawful presence bars for individuals seeking admission to the United States as immigrants if they can show that the refusal of admission would result in extreme hardship to a qualifying U.S. citizen or LPR spouse or parent, and provided that the applicant warrants a favorable exercise of discretion. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

The below details some of the discretionary factors relevant to the waiver adjudication as set for by the USCIS Policy Manual:

Non-Exhaustive List of Factors that May Be Relevant in the Discretionary Analysis

CategoryFavorable FactorsUnfavorable Factors
Waiver Eligibility• Meeting certain other statutory requirements of the waiver, including a finding of extreme hardship to a qualifying family member, if applicable. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996) (relating to a criminal waiver under INA 212(h)(1)(B)). See Matter of Marin, 16 I&N Dec. 581 (BIA 1978) (relating to an INA 212(c) waiver). See Matter of Tijam, 22 I&N Dec. 408 (BIA 1998) (relating to a fraud or misrepresentation finding (INA 212(a)(6)(C)(i)) and the discretionary waiver under former INA 241(a)(1)(H) [renumbered as INA 237(a)(1)(H) by IIRIRA]).

• Eligibility for waiver of other inadmissibility grounds.		Not applicable – Not meeting the statutory requirements of the waiver results in a waiver denial. A discretionary analysis is not necessary.
Family & Community Ties• Family ties to the United States and the closeness of the underlying relationships.

• Hardship to the applicant or to non-qualifying lawful permanent residents (LPRs) or U.S. citizen relatives or employers.

• Length of lawful residence in the United States and status held during that residence, particularly where the applicant began residency at a young age.

• Significant health concerns that affect the qualifying relative.

• Difficulties the qualifying relative would be likely to face if the qualifying relative moves abroad with the applicant due to country conditions, inability to adapt, restrictions on residence, or other factors that may be claimed.

• Honorable service in the U.S. armed forces or other evidence of value and service to the community.

• Property or business ties in the United States.		Absence of community ties.
Criminal History & Moral Character (or both)• Respect for law and order, and good moral character, which may be evidenced by affidavits from family, friends, and responsible community representatives.

• Reformation of character and rehabilitation.

• Community service beyond any imposed by the courts.

• Considerable passage of time since deportation or removal.		• Moral depravity or criminal tendencies reflected by an ongoing or continuing criminal record, particularly the nature, scope, seriousness, and recent occurrence of criminal activity.
 
• Repeated or serious violations of immigration laws, which evidence a disregard for U.S. law.

• Lack of reformation of character or rehabilitation.

• Previous instances of fraud or false testimony in dealings with USCIS or any government agency.

• Marriage to a U.S. citizen or LPR for the primary purpose of circumventing immigration laws.

• Nature and underlying circumstances of the inadmissibility ground at issue, and the seriousness of the violation
Public safety or national security concerns
OtherAbsence of significant undesirable or negative factors.Other indicators of an applicant's bad character and undesirability as a permanent resident of this country.

Discretionary Factors

The officer must weigh the social and humanitarian considerations against the adverse factors present in the applicant’s case.  See Matter of De Lucia, 11 I&N Dec. 565 (BIA 1966). See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957). The approval of a waiver as a matter of discretion depends on whether the favorable factors in the applicant’s case outweigh the unfavorable ones. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

Discretionary Determination

When making a discretionary determination, the officer should review the entire record and give the appropriate weight to each adverse and favorable factor.  Once the officer has weighed each factor, the officer should consider all of the factors cumulatively to determine whether the favorable factors outweigh the unfavorable ones. If the officer determines that the positive factors outweigh the negative factors, then the applicant merits a favorable exercise of discretion.

Example

A lengthy and stable marriage is generally a favorable factor in the discretionary analysis. On the other hand, the weight given to any possible hardship to the spouse that may occur upon separation may be diminished if the parties married after the commencement of removal proceedings with knowledge of an impending removal.  In particular, if a finding of extreme hardship is a statutory eligibility requirement, the finding of extreme hardship permits, but does not require, a favorable exercise of discretion. Once extreme hardship is found, extreme hardship becomes a factor that weighs in favor of granting relief as a matter of discretion.

Example

In general, when reviewing an applicant’s employment history, an officer may consider the type, length, and stability of the employment. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996). See Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992).

Example

In general, when reviewing an applicant’s history of physical presence in the United States, the officer may favorably consider residence of long duration in this country, as well as residence in the United States while the applicant was of young age. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

Example

When looking at the applicant’s presence in the United States, the officer should evaluate the nature of the presence. For example, a period of residency during which the applicant was imprisoned may diminish the significance of that period of residency. See Diaz-Resendez v. INS, 960 F.2d 493 (5th Cir. 1992).

Cases Involving Violent or Dangerous Crimes

If a foreign national is inadmissible on criminal grounds involving a violent or dangerous crime, an officer may not exercise favorable discretion unless the applicant has established, in addition to the other statutory and regulatory requirements of the waiver that:

  • The case involves extraordinary circumstances; or
  • The denial would result in exceptional and extremely unusual hardship. See Douglas v. INS, 28 F.3d 241 (2nd Cir. 1994).

Extraordinary circumstances involve considerations such as national security or foreign policy interests.  Exceptional and extremely unusual hardship is substantially beyond the ordinary hardship that would be expected as a result of denial of admission, but it does not need to be so severe as to be considered unconscionable. See INA 212(h). See 8 CFR 212.7(d). See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (relating to a waiver of inadmissibility granted in connection with INA 209(c), refugee or asylee adjustment of status).  Depending on the gravity of the underlying criminal offense, a showing of extraordinary circumstances may still be insufficient to warrant a favorable exercise of discretion. See Matter of Monreal, 23 I&N Dec. 56 (BIA 2001).

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

By Leave a Comment

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

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

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

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

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

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.

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id . at 566.

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

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882). The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Id.

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 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).

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

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

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

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

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

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

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

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