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Client Approval: I-601 “Extreme Hardship” Waiver Approved for Romanian Client Subject to 10 Year Unlawful Presence Bar & Fraud/Misrepresentation

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Client Approval: I-601 "Extreme Hardship" Waiver Approved for Romanian Client Subject to 10 Year Unlawful Presence Bar

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a Romanian client who is subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B)(II) and a life-time bar for fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

INA Section 212(a)(9)(B)(II) states:

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

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 overstayed his authorized period of stay by over 1 year before voluntarily departing back to his home country of Romania.  During his stay inside the United States, he met and married his U.S. citizen wife.  He eventually re-located to the United Kingdom, where his U.S. citizen wife joined him due to his inadmissibility to the U.S..  The couple gave birth to a U.S. citizen child who resides with them in London.  The couple contacted my office after the Romanian husband was denied at his immigrant visa interview at the U.S. embassy in London due to being subject to the 10 year unlawful presence ground of inadmissibility and life-time bar fraud/misrepresentation.

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.  A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

”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.

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.”  We also thoroughly discussed and presented evidence of  the U.S. citizen wife’s mother’s medical condition, as well as the precarious physical state of the U.S. citizen wife’s grandparents.  The condition of the U.S. citizen wife’s mother and grand-parents were carefully presented  to demonstrate their intimate link and relevance to the psychological hardship being faced by the qualifying relative (the U.S. citizen wife).

This case was also challenging because the U.S. citizen wife and her Romanian husband were residing in London, United Kingdom, together with their child who was born outside the U.S.  We had to overcome the presumption that a family already residing abroad in a major metropolis such as London has adjusted to life abroad already and is not suffering extreme hardship. However, due to our experience handling similar cases over the past 12+ years, we anticipated this issue and presented an array of financial, psychological, and other hardship evidence to overcome such a presumption.

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

  • Personal affidavits from the U.S. citizen wife’s parents and grand-parents affirming the hardships factors presented in this I-601 waiver
  • Psycho-social evaluation of the U.S. citizen wife which confirms a substantial risk for psychiatric decompensation, and, potentially, an increased risk for suicide due to the immigration consequences of her Romanian husband’s inadmissibility
  • A specific discussion of Attachment theory (based on the idea that the bond between an infant and his or her primary caregiver is the crucial and primary influence infant development).
  • We often cite credible studies and reports from a variety of fields to support our I-601 and I-212 waiver applications.  In this case, we referenced a World Health Organization’s study on attachment and early childhood development, which states that loss of a primary caregiver can substantially harm a young child’s psychological and emotional development.
  • Medical records of the U.S. citizen’s wife’s mother
  • Medical records of the U.S. citizen wife’s grand-parents.
  • Detailed break-down of the family’s household income, expenses and debt/liabilities
  • Detailed country conditions of Romania, particularly as it relates to income, job opportunities, and health care
  • Letters of good moral character and rehabilitation for the Romanian husband

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this family of mother, father, and son will be able to live in the United States and provide support to close U.S. citizen relatives who are in need.

Requests for Evidence (RFEs) Commonly Issued by USCIS on Waiver Applications

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Requests for Evidence (RFEs) Commonly Issued by USCIS on Waiver Applications

I am often contacted by applicants who have received a Request for Evidence from the USCIS and are understandably concerned and unsure how to respond.

While some Requests for Evidence are procedural and relatively simple to handle (e.g. a request for a copy of a marriage certificate, birth certificate, etc.), others are more serious and accompanied by a Notice of Intent to Deny as well.  This typically occurs because the adjudicating USCIS officer believes that the applicant failed to meet the legal threshold of the waiver being applied for.

Below are Requests for Evidence commonly issued by the USCIS to waiver applicants.  Our office has successfully responded to such requests from the USCIS on behalf of our clients for the past 12+ years.  Should such a request be issued, I recommend contacting an experienced I-601 and I-212 waiver attorney and get guidance on how to proceed.  It is extremely important that such requests be carefully and fully complied with to ensure successful approval of your waiver application.

100 RFE 601- Waiver Requirements for Unlawful Presence – INA 212(a)(9)(B)(v)
You have been found inadmissible to the United States under section 212(a)(9)(B) of the Immigration and Nationality Act (INA) because you had previously been unlawfully present in the United States in excess of either 180 days, or for one year or more.

To be eligible for a waiver under section 212(a)(9)(B)(v) of the INA, you must show that:

• You have a U.S. citizen or lawful permanent resident spouse or parent, or a U.S. citizen fiance( e) who petitioned for your K visa, who would experience extreme hardship if you were denied admission, and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

101 RFE 601- Waiver Requirements for Criminal & Related Grounds – INA 212(h)
You have been found inadmissible to the United States under section 212(a)(2) of the Immigration and Nationality Act (INA) because of your involvement in: [ISO inserts applicable basis for inadmissibility finding]

• A crime involving moral turpitude (other than purely political offense).
• A controlled substance violation according to the laws and regulations of any country related to a single offense of simple possession of 30 grams or less of marijuana.
• Two or more convictions, other than purely political ones, for which you received sentences of confinement amounting to 5 years or more.
• Prostitution, including having procured others for prostitution or having received the proceeds of prostitution.
• Unlawful commercialized vice whether or not related to prostitution.
• Serious criminal activity but you asserted immunity from prosecution.

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

You are only inadmissible for participation in prostitution; and

• You have been rehabilitated; and
• Your admission to the United States will not be contrary to the national welfare, safety, or security of the United States; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

The criminal activities for which you are inadmissible occurred more than 15 years ago; and

• You have been rehabilitated; and
• Your admission to the United States will not be contrary to the national welfare, safety, or security of the United States;
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

You have a qualifying relative who is a U.S. citizen or lawful permanent resident of the United States; and

• Your qualifying relative would suffer extreme hardship on account of your ineligibility to immigrate; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

You are the fiance( e) of a K visa petitioner; and

• The K visa petitioner would suffer extreme hardship on account of your ineligibility to immigrate; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

You are a VA WA self-petitioner

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

  • One involving national security or policy considerations; or
  • If the denial of your admission would result in exceptional and extremely unusual hardship.

102 RFE 601 – Waiver Requirements for Fraud/Misrepresentation – INA 212(i)
You have been found inadmissible to the United States under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA) because you sought to procure an immigration benefit by fraud or willfully misrepresenting a material fact.

To be eligible for a waiver under section 212(i) of the INA, you must show that:

• You have a U.S. citizen or lawful permanent resident spouse or parent, or a U.S. citizen fiance( e) who petitioned for your K visa, who would experience extreme hardship if you were denied admission, or
• You are a VA WA self-petitioner, and that you or your U.S. citizen, lawful permanent resident, or qualified parent or child would experience extreme hardship if you were denied admission; and ‘
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

103 RFE 601 – Waiver Requirements for Communicable Disease – INA 212(g)(1)
You have been found inadmissible to the United States under section 212( a)(1)(A)(i) of the Immigration and Nationality Act (INA) because you have a medical condition that will not allow you to enter or remain in the United States. USCIS may waive this inadmissibility ground under section 212(g)(1) of the INA as a matter of discretion after consulting with the Centers for Disease Control and Prevention (CDC).

To be eligible for this waiver, you must show that you are one of the following:

  • The spouse, parent, unmarried son or daughter, or minor unmarried lawfully adopted child of
    • A U.S. citizen; or
    • An alien lawfully admitted for permanent residence; or
    • An alien who has been issued an immigrant visa
  • A self petitioner under the Violence Against Women Act (VA WA)
  • The fiance( e) of a U.S. citizen or the fiance(e)’s child.

104 RFE 601 – Waiver Requirements for Missing Vaccinations – INA 212(g)(2)(C)
You have been found inadmissible to the United States under section 212(a)(1)(A)(2) of the Immigration and Nationality Act (INA) because you have not received the vaccines required for entry into the United States. USCIS may waive this inadmissibility ground under section 212(g)(2)(C) of the INA as a matter of discretion if you can establish that:

  • You are opposing vaccinations in any form (that is, you are not just opposed to one vaccine but that you oppose the practice of vaccination in general); and
  • Your objection is based on religious beliefs or your moral convictions; and
  • Your belief or conviction is sincere (that you actually live according to your belief and conviction, and that you do not just have the belief or conviction because you do not want to be vaccinated).

105VWR – Waiver Requirements for Physical or Mental Disorder- INA 212(g)(3) 

You have been found inadmissible to the United States under section 212(a)(1)(A)(iii) of the Immigration and Nationality Act (INA) because you were determined to have a mental or physical disorder that poses or may pose a threat to the property, safety, or welfare of you or others; or because you have a history of a physical or mental disorder and a history of behavior that poses or may pose a threat to the property, safety, or welfare of you or others because the disorder is likely to reoccur.

After consultation with the Centers for Disease Control and Prevention (CDC), USCIS may waive this inadmissibility ground under section 212(g)(3) of the INA as a matter of discretion to ensure that you have arranged for suitable health care in the United States so that your condition will no longer pose a threat to you or others.

106 RFE 601- Waiver Requirements for Membership in a Totalitarian Party – INA 212(a)(3)(D)(iv)
You have been found inadmissible to the United States under section 212(a)(3)(D) of the Immigration and Nationality Act (INA) because you had been a member of the Communist Party or another totalitarian party (or subdivision or affiliate thereof).

To be eligible for a waiver under section 212(a)(3)(D)(iv) of the INA, you must show that:

  • You are:
    • A parent, spouse, son, daughter, brother, or sister of a citizen of the United States, or
    • A spouse, son, or daughter of a lawful permanent resident of the United States; and
  • Your application should be granted to serve humanitarian purposes, to assure family unity, or because it is otherwise in the public interest; and
  • You are not a threat to the security of the United States; and
  • Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

107 RFE 601 – Waiver Requirements for Smuggling-INA 212(d)(11)
You have been found inadmissible to the United States under section 212(a)(6)(E) of the Immigration and Nationality Act (INA) because you had engaged in alien smuggling.

To be eligible for a waiver under section 212(d)(11) of the INA, you must show that:

  • You are:
    • An alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of removal, and are otherwise admissible to the United States as a returning resident under section 211(b) of the INA, or
    • Seeking admission or adjustment of status as an immediate relative under section INA 201(b)(2)(A) or as an immigrant under section 203(a) of the INA (first, second, and third family-based preference, but not fourth preference) or as the fiance(e) (or child of the fiance(e))’of a U.S citizen; and
    • You have encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was your spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of the law; and
    • Your application should be granted to serve humanitarian purposes, to assure family unity, or because it is otherwise in the public interest; and

Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

108 RFE 601- Waiver Requirements for Subject of Civil Penalty- INA 212(d)(12)
You have been found inadmissible to the United States under section 212(a)(6)(F) of the Immigration and Nationality Act (INA) because you have been the subject of a final order for violation of section 274C of the INA (Document Fraud).

To be eligible for a waiver under section 212(d)(12) of the INA, you must show that:

  • You are
    • An alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation or removal and who is otherwise admissible to the United States as a returning resident under section 211(b) of the INA, or
    • Seeking admission or adjustment of status as an immediate relative under section 201(b)(2)(A) of the INA or as an immigrant under section 203(a) of the INA (first, second, and third family-based preference, but not fourth preference) or as the fiance(e) (or child of the fiance(e)) of a U.S. citizen; and
    • This is the only civil money penalty order against you under INA 274C; and
    • You committed the offense only to assist, aid, or support your spouse or child (and not another individual); and
    • Your application should be granted to serve humanitarian purposes, to assure family unity, or because it is otherwise in the public interest; and

Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

109 RFE 601 – Applicant Previously Removed – INA 212(a)(9)(A)(iii)
The record indicates that in addition to the inadmissibility ground for which you have filed Form I-601, you are also inadmissible under section 212(a)(9)(A) of the Immigration and Nationality Act (INA) due to a previous removal or deportation.

An individual who is inadmissible under section 212(a)(9)(A) of the INA may file an Application for Permission to Reapply for Admission to the United States After Deportation or Removal (Form I-212).

Your application is missing evidence that you have filed Form I-212 with USCIS. Please submit a USCIS receipt notice for Form I-212 as evidence that you have filed the required application.

110 RFE 601-No Evidence of Visa Refusal or Pending I-485/I-821
An individual who is outside the United States may file Form I-601 if he or she has been found inadmissible by a U.S. Consular Officer after having applied for an immigrant visa or a nonimmigrant K or V visa.

An individual who is inside the United States may file Form I-601 along with an Application to Register Permanent Residence or Adjust Status (Form I-485) or an Application for Temporary Protected Status (Form I-821 ), or while the Form I-485 or Form I-821 is pending.

Your application is missing evidence that your waiver application is based on either:

  • An immigrant visa application (or nonimmigrant K or V visa application) filed with the Department of State (DOS), for which you were found ineligible due to an inadmissibility ground; or
  • A pending Form I-485 or Form I-821.

Please provide the following evidence to support your application:

  • If you are outside the United States, submit evidence that you have a pending immigrant visa application (or nonimmigrant K or V visa application), such as a copy of a DOS notice identifying your Consular Case Number.
  • If you are inside the United States and have a pending Form I-485 or Form I-821, submit evidence that you have a pending application, such as a copy of your USCIS receipt notice (Form I-797).

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I-601 Extreme Hardship Waiver Approved for Canadian Client Charged with Fraud – Misrepresentation

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I-601 Extreme Hardship Waiver Approved for Canadian Client Charged with Fraud - Misrepresentation

Our office recently obtained approval of the I-601 “Extreme Hardship” Waiver for a Canadian client found inadmissible for having attempted to procure an immigration benefit in the United States by fraud or willful misrepresentation of a material fact under INA Section 212(a)(6)(C)(i).

Our clients, a U.S. citizen wife and her Canadian husband, contacted me to prepare and submit the I-601 Application of Waiver of Grounds of Inadmissibility on their behalf, after the Canadian husband was denied for an immigrant visa at the US consulate in Canada.

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.

Section 212(i) of the Act provides that:

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.  The applicant’s spouse is the only qualifying relative in this case.  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.,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.

The favorable factors we presented and proved in this case to obtain approval of the I-601 Waiver includes the following:

  • The U.S. citizen wife suffered severe psychiatric decompensation shortly after their first failed attempt to have her spouse from Canada immigrate to the United States.  As a result of her hospitalization, her psychiatrist ordered a leave of absence from her work and career.
  • Loss of income from stopping work has forced the U.S. citizen wife to move in with her parents, who are elderly and infirm.  The U.S. citizen wife provides daily living assistance to both her father and mother.
  • The U.S. citizen wife has a son from a former relationship.  The son is suffering severe behavioral and emotional problems due to the close bond he has developed with his step-father and due to their on-going separation from one another.
  • The U.S. citizen wife shares joint-legal custody of her son with the biological father under a legal custody agreement.  Her son’s father, who exercises regular visitation rights, would never allow their son to be re-located to Canada.
  • The U.S. citizen wife is becoming increasingly depressed, as she lost her home, her transportation, her good credit rating, as well as her ability to work.  She requires her Canadian husband’s presence and support now more than never to survive in a rapidly deteriorating situation.
  • The Canadian husband has no criminal history, has worked productive in the financial services industry for more than two decades, and is a loving husband and father who has been an impeccable step-father and role model to his U.S. citizen step-son.

Some clients (and attorneys) mistakenly believe that extreme hardship can only established when the applicant comes from a “developing country.”  We routinely obtain I-601 Waivers for clients who come from countries such as Canada, the United Kingdom, Japan, and other more “developed” countries throughout the world.   We have particular expertise in demonstrating how the unique circumstances of our clients’ lives combine and interact to meet the threshold of “extreme hardship.”  Just as importantly, we always go beyond the legalese and present our clients as people that the adjudicating officer can relate to.

As a result, our client was approved for the I-601 Waiver and can now obtain permanent residence in the U.S. to reside together with his family.

I-212 Waiver and I-601 Extreme Hardship Waiver Approved for Chinese Client

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I-212 Waiver and I-601 Extreme Hardship Waiver Approved for Chinese Client

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 Chinese spouse of a U.S. citizen husband.

Our client lawfully entered the U.S. on a B-1/B-2 visitor visa.  She overstayed in the U.S. due to a misunderstanding of U.S. immigration laws related to the I-539 Application to Extend Non-Immigrant Status.

She was subsequently removed from the U.S. while attempting re-entry into the U.S.

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 nonimmigrant 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.

Our client was also charged with fraud or willful misrepresentation under INA Section 212(a)(6)(C) of the Immigration and Nationality Act.

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.

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

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.  The applicant’s spouse is the only qualifying relative in this case.  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).

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.

We drafted a comprehensive 24+ 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 husband is presently suffering from, and proved how they would worsen in the event of continued separation from his beloved wife.  We 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 includes the following:

  • The U.S. citizen husband shares physical and joint legal custody over his children with his former partner.  He would not be allowed to re-locate abroad with some of the children due to regular visitation rights exercised by the mother of the children.  His U.S. citizen children would be emotionally and psychologically devastated should their father be forced to leave the U.S. to be with his wife.  On the other hand, the U.S. citizen husband finds it increasingly difficult support his household alone given his deteriorating physical and psychological state.
  • The U.S. citizen husband’s monthly expenses continue to exceed his income.  He also does not speak, read, or write Mandarin Chinese and would have limited employment-prospects if he located abroad to China to be with his wife.
  • The U.S. citizen husband is postponing much-needed surgery for a medical conditions because he cannot afford to stop working and fall deeper into debt.  He also needs his wife by his side to help care for his children (and his elderly U.S. citizen mother) during his period of recuperation post-surgery.

Due to our efforts, our client was approved for both the I-212 waiver and I-601 waiver in less than 5 months after submission to the USCIS.  This family can now lawfully reside together inside the United States.

Client Approval: I-601 Fraud/Misrepresentation Waiver Approved for Nigerian Client

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Client Approval: I-601 Fraud/Misreprsentation Waiver Approved for Nigerian Client

Our office recently received approval for the I-601 Waiver for a client found inadmissible to the United States due to fraud/misrepresentation.

The applicant misstated his marital status and the number of children he has in an immigration application, and was subsequently found inadmissible under INA Section 212(a)(6)(C) when he was forthcoming with the facts during his visa interview.

The married couple then contacted our law firm to prepare the I-601 Application for Waiver of Grounds of Inadmissibility on their behalf.

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.

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

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.  The applicant’s spouse is the only qualifying relative in this case.  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.,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 totality of the circumstances is considered when determining whether denial of admission would result in extreme hardship to a qualifying relative.

The favorable factors we presented to secure approval of the I-601 waiver in our client’s case includes the following:

  • The U.S. citizen spouse suffers from psychological and physical disorders, and has been diagnosed with obesity.  The psychological stress, anxiety, and depression caused by her immigration situation leads to a vicious cycle of overeating, which further destabilizes her psychological and physical health, and in turn leads to increased psychological stress and anxiety.
  • The U.S. citizen spouse lives with her mother and brother, both of whom suffer from serious illnesses and rely upon the U.S. citizen spouse for day-to-day help and financial support.
  • The U.S. citizen spouse is in severe debt, on the verge of bankruptcy, with monthly expenses that far outstrip her monthly income.
  • The foreign spouse (the waiver applicant) has no criminal record whatsoever except for the single charge of immigration fraud/misrepresentation, for which he was forthcoming and completely truthful during his visa interview
  • Country conditions of Nigeria (where the foreign spouse is originally from and resides in) show ethnic, sectarian, and tribal conflicts throughout the country; rampant crime with largely ineffective law enforcement; and travel through large swaths of the countryside limited for U.S. embassy employees due to killings, kidnappings, and violent crime.
  • U.S. Bureau of Consular Affairs describes Nigeria’s medical facilities as being in poor condition, with inadequately trained nursing staff, diagnostic and treatment equipment often poorly maintained, and many medicines unavailable.
  • The CIA World Factbook states that 62% of the Nigerian population lives in extreme poverty, living on less than $1 per hour

It is important that the attorney retained to prepare the I-601 waiver or the I-601A provisional waiver be familiar with the conditions of the country where the waiver applicant is from.  Our office has prepared I-601 “Extreme Hardship” Waivers and I-601A Provisional Waivers for clients who come from countries throughout the world (including but not limited to, Argentina, Australia, Austria, Brazil, China, Costa Rica, Colombia, Ecuador, France, Japan, Germany, India, Jamaica, Latvia, Mexico, Nigeria, Morocco, Pakistan, Romania, Russia, South Korea, Thailand,  Ukraine, United Kingdom, and Vietnam).

Consequently, we have in-depth experience not only researching and presenting a country’s conditions to prove extreme hardship, but precisely showing how our clients’ lives are and would be affected by these conditions.

As a result of our 25-page I-601 waiver application and numerous Exhibits attached to prove the statements made in our “extreme hardship” waiver, our client’s waiver application was approved.  This family in need may now reside together in the U.S. and work together to deal with this difficult period in their lives.

 

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