Overstay - Page 2 of 5 - Smart Immigration Lawyer

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

March 30, 2016 By Michael Cho Immigration Lawyer Leave a Comment

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).

[Read more…]

I-212 Waiver Approved on Appeal by AAO Due to U.S. Citizen Spouse, Lack of Criminal Record, and Showing of Hardship

February 26, 2016 By Michael Cho Immigration Lawyer 1 Comment

I-212 Waiver News

The AAO recently granted approval of the I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal for a citizen of Mexico who was ordered removed from the United States on October 11, 2012.

This case is useful to examine because it provides an example of the type of detailed discussion and comprehensive presentation of favorable factors needed in an I-212 waiver in order to obtain approval. It also highlights the importance of a powerful and credible psychological evaluation conducted for purposes of an immigration waiver case.

The applicant initially entered the United States with a B-2 visitor visa on February 7, 2012, and though her period of authorized stay expired on August 6, 2012, she did not depart the United States until September 28, 2012.

She then sought to procure admission to the United States on October 11, 2012. In her sworn statement before a U.S. immigration officer on October 11, 2012, she admitted to working without employment authorization during her previous stay in the United States and to staying longer than her period of authorized stay.

The applicant was found to be inadmissible under section 212(a)(7)(A)(i)(I) of the Act. She was therefore ordered removed under section 235(b)(1) of the Act and removed on October 11, 2012.

Because of her expedited removal order, the applicant was inadmissible pursuant to section 212(a)(9)(A)(i) of the Act and required permission to reapply for admission into the United States under section 212(a)(9)(A)(iii) of the Act.

She sought permission to reapply for admission into the United States under section 212(a)(9)(A)(iii) of the Act, 8 U.S.C. § 1182(a)(9)(A)(iii), in order to reside in the United States.

The USCIS initially determined that the applicant’s adverse factors outweighed her favorable factors, and denied her I-212 Waiver.

On appeal, it was asserted that the USCIS made several legal errors, including failing to consider the applicant’s many favorable factors, the lack of unfavorable factors, evidence of hardship submitted, and the cumulative effect of hardship on the applicant and her spouse.

In addition, it was asserted that the USCIS applied an extreme hardship standard instead of the required balancing of equities standard; and that her favorable factors outweigh her adverse factors.

Section 212(a)(9) of the Act states in pertinent part:

(A) Certain aliens previously removed.-

(i) Arriving aliens.- Any alien who has been ordered removed under section 235(b )(1) or at the end of proceedings under section 240 initiated upon the alien’s arrival in the United States and who again seeks admission within five years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

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

(I) has been ordered removed under section 240 or any other provision of law, or
(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien’s departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

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

In Matter of Tin, 14 I&N Dec. 371 (Reg. Comm. 1973), the Regional Commissioner listed the following factors to be considered in the adjudication of a Form I-212 Application for Permission to Reapply After Deportation:

The basis for deportation;
recency of deportation;
length of residence in the United States;
applicant’s moral character;
his respect for law and order;
evidence of reformation and rehabilitation;
family responsibilities;
any inadmissibility under other sections of law;
hardship involved to himself and others;
and the need for his services in the United States.

In Tin, the Regional Commissioner noted that the applicant had gained an equity job experience while being unlawfully present in the United States. The Regional Commissioner then stated that the alien had obtained an advantage over aliens seeking visa issuance abroad or who abide by the terms of their admission while in this country, and he concluded that approval of an application for permission to reapply for admission would condone the alien’s acts and could encourage others to enter the United States to work in the United States unlawfully. Id.

Matter of Lee, 17 I&N Dec. 275 (Comm. 1978) further held that a record of immigration violations, standing alone, did not conclusively support a finding of a lack of good moral character. Matter of Lee at 278. Lee additionally held that,

“[T]he 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 [toward the violation of immigration laws] ….In all other instances when the cause of deportation has been removed and the person now appears eligible for issuance of a visa, the time factor should not be considered. Id.”

The 7th Circuit Court of Appeals held in Garcia-Lopes v. INS, 923 F.2d 72 (ih Cir. 1991), that less weight is given to equities acquired after a deportation order has been entered. Further, the equity of a marriage and the weight given to any hardship to the spouse is diminished if the parties married after the commencement of deportation proceedings, with knowledge that the alien might be deported.

It is also noted that the Ninth Circuit Court of Appeals, in Carnalla-Munoz v. INS, 627 F.2d 1004 (2~h Cir. 1980), held that an after-acquired equity, referred to as an after-acquired family tie in Matter of Tijam, 22 I&N Dec. 408 (BIA 1998), need not be accorded great weight by the district director in a discretionary determination.

Moreover, in Ghassan v. INS, 972 F.2d 631, 634-35 (5th Cir. 1992), the Fifth Circuit Court of Appeals held that giving diminished weight to hardship faced by a spouse who entered into a marriage with knowledge of the alien’s possible deportation was proper.

In the present case, the AAO found that these legal decisions establish the general principle that “after-acquired equities” are accorded less weight for purposes of assessing favorable equities in the exercise of discretion.

The applicant and her spouse were married after her expedited removal from the United States; therefore their marriage and hardship were considered to be after-acquired equities and less weight was accorded for these favorable factors.

The I-212 waiver and appeal generally included, but was not limited to:

statements from the applicant and her spouse
psychological evaluations of the applicant and her spouse
medical records
financial records
statements from friends and family members
photographs and country conditions information about Mexico.

The favorable factors in this case that warranted approval of the applicant’s I-212 waiver by the AAO include:

the applicant’s lack of a criminal record;
her U.S. citizen spouse;
an approved Form I-130, Petition for Alien Relative;
hardship to the applicant; and
hardship to her spouse.

Specifically, concerning the applicant’s own hardship:

the applicant stated that she is suffering from severe clinical depression, panic and anxiety attacks, inability to sleep, weight fluctuation, hair loss, and bad moods.
A psychologist diagnosed her with symptoms of major episodic depression and generalized anxiety disorder.

Concerning the applicant’s spouse’s hardship:

the applicant’s spouse states that he was diagnosed with depression and anxiety disorder;
he has developed insomnia;
he has become lethargic;
he has gained 30 pounds;
he was prescribed medication for depression, anxiety and insomnia;
he approached his employer about working in Mexico part-time but was denied;
he and the applicant want to start a family;
he would have to give up his career of 14 years and professional license if he left the United States;
he has no family ties in Mexico;
he has lived his entire life in the United States and does not speak Spanish;
his parents and siblings are in the United States; and
Guadalajara is a dangerous area.

A psychologist who has evaluated the applicant’s spouse states that:

the applicant’s spouse suffers from depression, anxiety, and panic attacks;
he is taking medication for these issues;
he has evaluated the applicant’s spouse multiple times and finds that the applicant’s spouse’s condition has steadily deteriorated;
the diagnosis of depressive disorder has become major depressive disorder;
his generalized anxiety disorder has become panic disorder; and
he continues to suffer from insomnia.

The I-212 waiver and appeal also included:

articles addressing safety issues in Mexico;
statement from the applicant showing that she expresses remorse for her actions;
proof that the applicant has paid taxes on her earnings as a nanny while in the United States;
statements from friends and family describing the applicant’s good character

The AAO found that the unfavorable factors in this case includes:

the applicant’s period of unauthorized stay during her last visit to the United States;
her brief period of unauthorized employment;
the applicant was out of status for 53 days (noted by the AAO to be a relatively short period of time)

After a careful review of the record, the AAO found that the applicant established that the favorable factors outweigh the unfavorable factors in her case and that a favorable exercise of the Secretary’s discretion was warranted.

In weighing the favorable and unfavorable factors, the AAO determined that certain favorable factors were not after-acquired equities. In addition, although less weight was given to the applicant’s after-acquired equities, these equities were still considered relatively significant due to the nature of the hardship detailed in the record.

In application proceedings it is the applicant’s burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, the AAO found that burden had been met and the applicant’s I-212 waiver was approved.

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

December 8, 2015 By Michael Cho Immigration Lawyer Leave a Comment

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-601A Provisional Waiver Approved for Peruvian with Multiple DUI Convictions

November 11, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our law office received approval of the I-601A Provisional Waiver that we prepared and submitted on behalf of a Peruvian client with multiple driving under the influence (DUI) of alcohol convictions on his record.

Our I-601A Provisional Waiver application package prepared by our law firm included a complete set of USCIS forms requesting consideration of the I-601A Provisional Waiver; a 27 page waiver statement detailing relevant case law favorable to my client’s situation presenting the extreme hardships that applied to this case; a waiver statement that went into compelling detail about the unique and favorable discretionary factors that applied to this case; and a comprehensive collection of exhibits to prove the extreme hardships and favorable discretionary factors being presented.

To be eligible for the I-601A Provisional Waiver for Unlawful Presence, an applicant must fulfill ALL of the following conditions:

Be 17 years of age or older.
Be the spouse, child, or adult child of a U.S. citizen or lawful permanent resident.
Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
Have a pending immigrant visa case with the Dept. of State for the approved immediate relative petition and have paid the Dept. of State immigrant visa processing fee.
Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or lawful permanent spouse or parent.
Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
Not have been scheduled for an immigrant visa interview by Dept. of State before January 3, 2013.
You are inadmissible ONLY for unlawful presence in the United States for more than 180 days but less than 1 year during a single stay (INA Section 212(a)(9)(B)(i)(I)), or unlawful presence in the United States for 1 year or more during a single stay (INA Section 212(a)(9)(B)(i)(II).

An applicant is NOT eligible for the I-601A Provisional Waiver for Unlawful Presence if any of the following conditions apply:

You are subject to one or more grounds of inadmissibility other than unlawful presence.
You have a pending Form I-485 Application to Register Permanent Residence or Adjust Status with the USCIS
You are in removal proceedings, unless your removal proceedings have been administratively closed and have not been placed back on the Dept. of Justice, Executive Office for Immigration Review calendar to continue your removal proceedings at the time you file the Form I-601A.
You are subject to a final order of removal, deportation, or exclusion, or to the reinstatement of a prior order of removal, deportation, or exclusion
You are subject to a Dept. of Homeland Security (DHS) order reinstating a prior order of removal, deportation, or exclusion
Dept. of State initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.
You fail to establish that the refusal of your admission would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion

In this case, the applicant is a Peruvian national who grew up in a crime-ridden, drug-lord controlled region of Peru. His father, a police officer, was killed in the line of duty when he was a young child. His mother abandoned his family when he was a teenager. He undertook the tremendous responsibility to care for his siblings (and later, other young relatives) as a teenager and did so without falling prey to the illicit activities that surrounded him.

He later entered the U.S. to provide a more secure for the family members (still in Peru). He was convicted of driving under the influence of alcohol in two separate incidents. Since those incidents, he entered into a treatment program that he completed with a stellar recommendation from his rehabilitation group counselor; attended school when not working to learn English; volunteered as a tutor at a local community college; became involved with a non-profit organization; and works diligently to this day to support his U.S. citizen wife and child.

All of this was presented in a powerful and persuasive manner, together with the extreme hardship factors, to convey the unique nature of this case. As with all of our I-601, I-601A, I-212, and 212(d)(3) waiver cases, we specialize in going beyond the legal standard and presenting the compelling human element of each case so that our client’s case does not become “just another case file” in the eyes of the adjudicating USCIS officer.

The extreme hardship factors discussed and documented in detail by our office includes:

The medical condition of the U.S. citizen wife that includes a serious medical illness with severe physical repercussions
The debilitating psychological disorders of the U.S. citizen wife
The total dependence of the U.S. citizen wife on her husband for financial and child-care assistance, without which she would suffer financial collapse
The serious medical condition of her U.S. citizen father, who the U.S. citizen wife will be called upon to support and care for at any time, as his state inevitably worsens
In-depth research and discussion of the country conditions of Peru and the variety of hardships and dangers likely to be faced by this family should they re-locate there
The close-knit and interrelated relationships between the family members that would lead to a spiral of psychological distress upon the entire family should the applicant be forced to return to Peru

As a result of our efforts, the I-601A provisional waiver was approved for our client despite multiple DUI convictions on his record. Our client will now be able to obtain U.S. lawful permanent resident status and more importantly, provide a better life for his wife, child, and family members still remaining in Peru.

Client Approval: I-601 Waiver Approved for K-1 Fiancee Subject to 10 Year Unlawful Presence Bar

October 21, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the K-1 fiancée visa and I-601 “unlawful presence” waiver for the Thai fiancée of a U.S. citizen. She had previously entered the U.S. as a non-immigrant student but overstayed her authorized period of stay by over one year before voluntarily departing back to her home country.

She subsequently met and fell in love with her U.S. citizen fiancé and the couple contacted my office to obtain my legal assistance.

We first provided the couple with a comprehensive letter going over every detail of the K-1 fiancée visa process, including preparation and submission of the initial I-129F petition to the USCIS as well as consular processing at the US embassy abroad.

We also provided our clients with an abbreviated checklist of supporting documents (both mandatory and optional) to gather in support of the I-129F Petition for Alien Fiancée and return to our office.

We meticulously prepared every USCIS application form on behalf of our clients; assembled the petition; submitted it to the USCIS on their behalf; then provided our clients with further guidelines on preparing for the consular interview to maximize the probability of K-1 visa approval at the US embassy interview.

Once the K-1 fiancee visa petition was submitted to the USCIS, we began work on preparing the I-601 “Extreme Hardship” waiver to overcome the 10 year “presence” bar (under INA 212(a)(9)(B)(i)(II)) we knew the Thai fiancée is subject to.

We always work on waivers while the USCIS visa petition is pending so that no time is lost and the waiver can be submitted as soon as the applicant located abroad is eligible (typically after being deemed inadmissible at the U.S. consular interview).

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

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

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

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

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

In support of our client’s I-601 waiver application, we prepared an extensive legal brief going over how the facts and circumstances of our clients’ situation met the legal standards used to define “extreme hardship.” We conducted extensive research on the country conditions of Thailand to demonstrate the hardships the U.S. citizen fiancé would suffer if he were to re-locate to Thailand to be with his loved on. The brief was accompanied by a comprehensive array of supporting exhibits that provided objective, credible proof of the statements made in the legal brief.

The positive factors in this case included:

The U.S. citizen fiancé suffers from Generalized Anxiety Disorder and Dysthymic Disorder and has suffered from these conditions for many years
The U.S. citizen fiancé’s family has an extensive history of mental illness
The U.S. citizen fiancé is the single parent of a U.S. citizen minor child who suffers from Post-Traumatic Stress Disorder
The U.S. citizen fiancé is the sole care-giver and provider for his elderly and disabled parents, who suffer from progressive and degenerative medical conditions that have compromised their mobility and ability to perform routine tasks
The U.S. citizen fiancé suffers from a serious physical ailment that requires surgery. However, he cannot undergo surgery without his fiancée’s presence in the U.S. to help take care of his parents while he recovers from surgery.
The U.S. citizen fiancé’s work performance is already significantly impaired due to his psychiatric and medical conditions, causing absences from work and markedly poor performance. Continued stress caused by separation from his loved one may force him to close down his business and lead to subsequent financial collapse.
The U.S. citizen fiancé’s son, who suffers from Post-Traumatic Stress Disorder, is negatively affected by his father’s long absence from home. He also shares joint-custody over his son with his ex-wife, who will never allow their son to be re-located to another country.
The region of Thailand where the Thai fiancée resides is subject to an advisory warning by the U.S. embassy, due to historical violence and civil unrest.

As a result of the “unlawful presence” waiver prepared and submitted by our office, this I-601 waiver application was approved and the couple can now be married inside the United States and pursue a life together as a family.

USCIS Draft Guidance on Adjudication of Extreme Hardship Waivers

October 14, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Selected USCIS draft guidance concerning the adjudication of applications for those discretionary waivers of inadmissibility that require showings of “extreme hardship” to certain U.S. citizen or lawful permanent resident (LPR) family members of the applicant follows below.

Admissibility is generally a requirement for admission to the United States, adjustment of status, and other immigration benefits. Several provisions of the Immigration and Nationality Act (INA), however, authorize discretionary waivers of particular inadmissibility grounds for those who demonstrate “extreme hardship” to specified U.S. citizen or LPR family members (referred to here as “qualifying relatives”).

Each of these provisions conditions a waiver on both a finding of extreme hardship to a qualifying relative and the more general favorable exercise of discretion. All of these waiver applications are adjudicated by U.S. Citizenship and Immigration Services (and in some cases by the Department of Justice’s Executive Office for Immigration Review).

The various statutory provisions specify different sets of qualifying relatives and permit waivers of different inadmissibility grounds. They include:

INA 212(a)(9)(B)(v) – This provision can waive the three-year and ten-year inadmissibility bars for unlawful presence. Eligible qualifying relatives include the applicant’s U.S. citizen or LPR spouse or parent.
INA 212(h)(1)(B) – This provision can waive inadmissibility for crimes involving moral turpitude, multiple criminal convictions, prostitution and commercialized vice, and certain serious criminal offenses for which the foreign national received immunity from prosecution. It can also waive inadmissibility for controlled substance convictions, but only when the conviction was for a single offense of simple possession of 30 grams or less of marijuana. Eligible qualifying relatives include the applicant’s U.S. citizen or LPR spouse, parent, son, or daughter.
INA 212(i)(1) – This provision can waive inadmissibility for certain types of immigration fraud. Eligible qualifying relatives include the applicant’s U.S. citizen or LPR spouse or parent.

Common Consequences of Inadmissibility

Common consequences of an applicant’s refusal of admission, in and of themselves, do not warrant a finding of extreme hardship. The BIA has held that these common consequences include, but are not limited to, the following:

Family separation;
Economic detriment;
Difficulties of readjusting to life in the new country;
The quality and availability of educational opportunities abroad;
Inferior quality of medical services and facilities; and
Ability to pursue a chosen employment abroad.

Even though these common consequences alone would be an insufficient basis for a finding of extreme hardship, they are still factors that must be considered when aggregating the total hardships to the qualifying relative.

When combined with other factors that might also have been insufficient when taken alone, even these common consequences might cause the sum of the hardships to reach the “extreme hardship” standard.

For example, if a qualifying relative is gravely ill, elderly, or incapable of caring for himself or herself, the combination of that hardship and the common consequences of a refusal of the applicant’s admission might well cause extreme emotional or financial hardship for the qualifying relative.

Examples of Factors that Might Support Finding of Extreme Hardship

Factors	Considerations
Family Ties and Impact	Presence of qualifying relative’s ties to family members living in the United States, including age, status, and length of residence of any children
	Responsibility for the care of any family members in the United States, in particular children and elderly or disabled adults
	Presence or absence of qualifying relative’s ties outside of the United States, including to family members living abroad and how close the qualifying relative is to these family members
	Nature of relationship between the applicant and the qualifying relative, including any facts about the particular relationship that would either aggravate or lessen the hardship resulting from separation
	Qualifying relative’s age
	Length of qualifying relative’s residence in the United States
	Length of qualifying relative’s prior residence in the country of relocation, if any
	Military service of qualifying relative, where the stresses and other demands of such service aggravate the hardship ordinarily resulting from family separation
	Impact on the cognitive, social, or emotional well-being of a qualifying relative who is left to replace the applicant as caregiver for someone else, or impact on the qualifying relative (for example, child or parent) for whom such care is required
Social and Cultural Impact	Loss of access to the U.S. courts and the criminal justice system, including the loss of opportunity to request criminal investigations or prosecutions, initiate family law proceedings, or obtain court orders regarding protection, child support, maintenance, child custody, or visitation
	Fear of persecution
	Existence of laws and social practices in home country that punish the qualifying relative because he or she has been in the United States or is perceived to have Western values
	Access or lack of access to social institutions and structures (official and unofficial) for support, guidance, or protection
	Social ostracism or stigma based on characteristics such as gender, gender identity, sexual orientation, religion, race, national origin, ethnicity, citizenship, age, political opinion, or disability
	Qualifying relative’s community ties in the United States and in the country of relocation
	Extent to which the qualifying relative has assimilated to U.S. culture, including language, skills, and acculturation
	Difficulty and expense of travel/communication to maintain ties between qualifying relative and applicant, if the qualifying relative does not relocate
	Qualifying relative’s present inability to communicate in the language of the country of relocation, taking into account the time and difficulty that learning that language would entail
	Availability and quality of educational opportunities for qualifying relative (and children, if any) in country of relocation
Economic Impact	Financial impact of applicant’s departure on the qualifying relative(s), including the applicant’s or the qualifying relative’s ability to obtain employment in the country to which the applicant would be returned and how that would impact the qualifying relative
	Qualifying relative’s need to be educated in a foreign language or culture
	Economic and financial loss due to the sale of a home or business
	Economic and financial loss due to termination of a professional practice
	Decline in the standard of living, including high levels of unemployment, underemployment, and lack of economic opportunity in country of nationality
	Ability to recoup losses
	Cost of extraordinary needs such as special education or training for children
	Cost of care for family members, including children and elderly, sick, or disabled parents
Health Conditions & Care	Significant health conditions and impact on the qualifying relative, particularly when tied to unavailability of suitable medical care in the country or countries to which the applicant might relocate
	Health conditions of the applicant’s qualifying relative and the availability and quality of any required medical treatment in the country to which the applicant would be returned, including length and cost of treatment
	Psychological impact on the qualifying relative due to either separation from the applicant or departure from the United States, including separation from other family members living in the United States
	Psychological impact on the qualifying relative due to the suffering of the applicant, taking into account the nature of the relationship and any other relevant factors
Country Conditions	Conditions in the country or countries to which the applicant would relocate, including civil unrest or generalized levels of violence, ability of country to address crime/high rates of murder/other violent crime, environmental catastrophes like flooding or earthquakes, and other socio-economic or political conditions that jeopardize safe repatriation or lead to reasonable fear of physical harm
	Temporary Protected Status (TPS) designation
	Danger Pay for U.S. citizens stationed in the country of nationality
	Withdrawal of Peace Corps from the country of nationality for security reasons
	DOS Travel Warnings issued for the country of nationality

Special Circumstances that Strongly Suggest Extreme Hardship

The preceding list identifies factors that bear generally on whether a refusal of admission would result in extreme hardship to one or more qualifying relatives.

USCIS has also determined that the circumstances below would often weigh heavily in favor of finding extreme hardship. These sorts of special circumstances are beyond the qualifying relative’s control and ordinarily cause suffering or harm greater than the common consequences of separation or relocation.

An applicant who is relying on one or more of these special circumstances must submit sufficient evidence that such circumstances exist. As always, even when these or other special circumstances are present, the ultimate determination of extreme hardship is based on the totality of the circumstances in the individual case.

It must be emphasized that the special circumstances listed below are singled out only because they are especially likely to result in findings of extreme hardship. Many other hardships will also be extreme, even if they are very different from, or less severe than, those listed below. Further, even the factors discussed are not exclusive; they are merely examples of factors that can support findings of extreme hardship, depending on the totality of the evidence in the particular case. Other factors not not discussed could support a finding of extreme hardship, under a totality of the circumstances.

Eligibility for an immigration benefit ordinarily must exist at the time of filing and at the time of adjudication. Given the underlying purpose of considering special circumstances, a special circumstance does not need to exist at the time of filing the waiver request. As long as the qualifying relative was related to the applicant at the time of filing, a special circumstance arising after the filing of the waiver request also would often weigh heavily in favor of finding extreme hardship.

1. Qualifying Relative Previously Granted Asylum or Refugee Status

If a qualifying relative was previously granted asylum or refugee status in the United States from the country of relocation and the qualifying relative’s status has not been revoked, those factors would often weigh heavily in favor of a finding that relocation would result in extreme hardship.

As the family member of a foreign national who has been granted asylum or refugee status, the applicant might also face dangers similar to those that gave rise to the qualifying relative’s grant of asylum or refugee status. In such a case, the qualifying relative could suffer psychological trauma in knowing the potential for harm if the applicant returns to the country of nationality, particularly if the qualifying relative fears returning to that country even to visit the applicant, and could thereby suffer extreme hardship.

2. Qualifying Relative or Related Family Member’s Disability

If the Social Security Administration or other qualified U.S. Government agency made a formal disability determination for the qualifying relative, the qualifying relative’s spouse, or a member of the qualifying relative’s household for whom the qualifying relative is legally responsible, that factor would often weigh heavily in favor of a finding that relocation would result in extreme hardship.

Absent a formal disability determination, an applicant may provide other evidence that a qualifying relative or related family member suffers from a medical or physical condition that makes either travel to, or residence in, the relocation country detrimental to the qualifying relative or family member’s health or safety.

In cases where the qualifying relative or related family member requires the applicant’s assistance for care because of the medical or physical condition, that factor would often weigh heavily in favor of a finding that separation would result in extreme hardship to the qualifying relative.

3. Qualifying Relative’s Active Duty Military Service

If the qualifying relative (who might be a spouse or other qualifying relative) is on active duty with any branch of the U.S. Armed Forces, relocation will generally be unrealistic, because the qualifying relative ordinarily will not be at liberty to relocate.

If the applicant and the qualifying relative have been living together – for example, on a military base that accommodates families or in a private facility off base – the removal of the applicant can therefore create separation. Under those circumstances, the qualifying relative might well suffer psychological and emotional harm associated with the separation.

The resulting impairment of his or her ability to serve the U.S. military could exacerbate that hardship. In addition, even if the qualifying relative’s military service already separates him or her from the applicant, the applicant’s removal overseas might magnify the stress of military service to a level that would constitute extreme hardship.

4. DOS Warnings Against Travel to or Residence in Certain Countries

DOS issues travel warnings to notify travelers of the risks of traveling to a foreign country. Reasons for issuing a travel warning include, but are not limited to, unstable government, civil war, ongoing intense crime or violence, or frequent terrorist attacks. Travel warnings remain in place until the situation changes. In some of these warnings, DOS advises of travel risks to a specific region or specific regions of a country.

In other travel warnings, DOS does more than merely notify travelers of the risks; it affirmatively recommends against travel or residence and makes its recommendation countrywide.

These travel warnings might contain language in which:

DOS urges avoiding all travel to the country because of safety and security concerns;
DOS warns against all but essential travel to the country;
DOS advises deferring all non-essential travel to the country; and/or
DOS advises U.S. citizens currently living in the country to depart.

Generally, the fact that a qualifying relative who is likely to relocate would face significantly increased danger in the country of relocation would often weigh heavily in favor of a finding of extreme hardship. If the country of relocation is currently subject to a DOS country-wide travel exists and, therefore, that relocation would result in extreme hardship.

If the travel warning covers only part of the country of relocation, but the officer finds that that part is one to which the qualifying relative plans to return despite the increased danger (for example, because of family relationships or employment opportunities), then that fact would similarly tend to weigh heavily in favor of finding that relocation would result in extreme hardship.

Alternatively, if it is more likely than not that the qualifying relative would relocate in a part of the country that is not subject to the travel warning (either because of the danger in the area covered by the travel warning or for any other reason), the officer should evaluate whether relocation in the chosen area would itself result in extreme hardship to that qualifying relative.

Conversely, if the applicant were to return to this particular country but the qualifying relative would be more likely than not to remain in the United States, the separation might well result in psychological trauma for the qualifying relative.

5. Substantial Displacement of Care of Applicant’s Children

USCIS recognizes the importance of family unity and the ability of parents and other caregivers to provide for the well-being of children. Moreover, depending on the particular facts, either the need to assume someone else’s care-giving duties or the continuation of one’s existing care-giving duties under new and difficult circumstances can be sufficiently burdensome to rise to the level of extreme hardship for the caregiver. The children do not need to be U.S. citizens or lawful permanent residents for that to be the case.

At least two different scenarios can occur.

In one scenario, the primary or sole breadwinner is refused admission, and the caregiver, who is a qualifying relative, remains behind to continue the caregiving. The fact that the breadwinner’s refusal of admission would cause economic loss to the caregiver is not by itself sufficient for extreme hardship. Economic loss is a common consequence of a refusal of admission.

But, depending on the facts of the particular case, economic loss can create other burdens that in turn are severe enough to amount to extreme hardship. For example, if the qualifying relative must now take on the combined burdens of breadwinner and ensuring continuing care of the children, and that dual responsibility would threaten the qualifying relative’s ability to meet his or her own basic subsistence needs or those of the person(s) for whom the care is being provided, that dual burden would tend to weigh heavily in favor of finding extreme hardship. In addition, depending on the particular circumstances, the qualifying relative may suffer significant emotional and psychological impacts from being the sole caregiver of the child(ren) that exceed the common consequences of being left as a sole parent.

If the refusal of admission would result in a substantial shift of care-giving responsibility from the applicant to a qualifying relative, and that shift would disrupt family, social, and cultural ties, or hinder the child(ren)’s psychological, cognitive, or emotional development, or otherwise frustrate or complicate the qualifying relative’s efforts to provide a healthy, stable, and caring environment for the child(ren), the additional psychological and economic stress for the qualifying relative could exceed the levels of hardship that ordinarily result from family separation – depending, again, on the totality of the evidence presented. If that is found to be the case, such a consequence would tend to weigh heavily in favor of a finding of extreme hardship to the qualifying relative, provided the applicant shows:

The existence of a bona fide parental or other care-giving relationship between the applicant and the child(ren);
The existence of a bona fide relationship between the qualifying relative and the child(ren); and
The qualifying relative would become the primary caretaker for the child(ren) or otherwise would take on significant parental or other care-giving responsibilities.

To prove a bona fide relationship to the child(ren), the applicant and qualifying relative should have emotional and/or financial ties or a genuine concern and interest for the child(ren)’s support, instruction, and general welfare. Evidence that can establish such a relationship includes:

Income tax returns;
Medical or insurance records;
School records;
Correspondence between the parties; or
Affidavits of friends, neighbors, school officials, or other associates knowledgeable about the relationship.

To prove the qualifying relative either would become the primary caretaker for the child(ren) or relative needs to show an intent to assume those responsibilities. Evidence of such an intent could include:

Legal custody or guardianship of the child, such as a court order;
Other legal obligation to take over parental responsibilities;
Affidavit signed by qualifying relative to take over parental or other care-giving responsibilities; or
Affidavits of friends, neighbors, school officials, or other associates knowledgeable about the qualifying relative’s relationship with the children or intentions to assume parental or other care-giving responsibilities.would otherwise take on significant parental or other care-giving responsibilities, the qualifying relative’s relationship with the children or intentions to assume parental or other care-giving responsibilities.

Hypothetical Case Examples

Scenario #1: AB has lived continuously in the United States since entering without inspection 7 years ago. He and his U.S. citizen wife have been married for 4 years. If AB is refused admission, it is reasonably foreseeable that his wife would relocate with him. His wife is a sales clerk. A similar job in the country of relocation would pay far less. In addition, she does not speak the language of the relocation country, lacks experience in the country, and lacks the ties that would facilitate social and cultural integration and opportunities for employment. AB himself is an unskilled laborer who similarly would command a much lower salary in the country of relocation. The couple has no children.

Analysis: These facts alone generally would not favor a finding of extreme hardship. The hardships to the qualifying relative, even when aggregated, include only common consequences of relocation – economic loss and the social and cultural difficulties arising mainly from her inability to speak the language.

Scenario #2: The facts are the same as in Scenario # 1 except that now the couple has a 9-year old U.S. citizen daughter who would relocate with them if AB is refused admission. The child was born in the United States and has lived here her entire life. AB’s wife and daughter both have close relationships with AB’s wife’s U.S. citizen sister and brother-in-law, who are the child’s aunt and uncle, and this couple’s U.S. citizen children, who are the child’s cousins, as well as other members of the family. They all live in close proximity with one another, have close emotional bonds, and visit each other frequently, and the aunt and uncle help care for the child. Neither AB’s wife’s family nor (for this particular waiver) the child are qualifying relatives, but AB’s wife, who is a qualifying relative, would suffer significant emotional hardship from seeing the suffering of both her young child and her sister’s family (the child’s aunt, uncle and cousins), all separated from one another, as well as separated from other family members, and from losing the emotional bonds she and her child have with her sister’s family and other family members, and financial benefit she receives from the care that her sister and brother-in-law provide. In addition, the child (like her mother) does not speak the language of the relocation country.

Analysis: Depending on the totality of the evidence, these additional facts would generally support a finding of extreme hardship. The aggregate hardships to the U.S. citizen wife now include not only the economic losses, diminution of professional opportunities, and social, cultural, and linguistic difficulties – all common consequences – but also the extra emotional hardship she would experience as a result of seeing the suffering of her young child and also her sister and the sister’s family, and other members of the family because of the additional separation, the child’s inability to speak the language, as well as loss of emotional bonds between all these family members and financial benefit from their contribution to the care of the child. That is the case even though neither the child nor the aunt, uncle and cousins, or family members are qualifying relatives for the particular waiver, because their suffering will in turn cause significant emotional suffering for the U.S. citizen wife, who is a qualifying relative. Note that even though the common consequences are not alone sufficient to constitute extreme hardship, they must be added to the other hardships to determine whether the totality adds up to extreme hardship.

Scenario #3: Again the facts are the same as in Scenario # 1, except this time AB himself has LPR parents who live in the United States and who would suffer significant emotional hardship as a result of separation from their son and their daughter-in-law, with whom they have close family relationships.

Analysis: Depending on the totality of the evidence, the addition of these facts would generally favor a finding of extreme hardship. There are now 3 qualifying relatives – AB’s wife and both his parents. Although the aggregated hardships to AB’s wife alone (under Scenario # 1) include only the common consequences of a refusal of admission, further aggregating them with the emotional hardships suffered by the two LPR parents would generally tip the balance in favor of a finding of extreme hardship, depending, again, on the totality of the evidence.

Scenario #4: CD has lived continuously in the United States since entering without inspection 4 years ago. She has been married to her U.S. citizen husband for 2 years. It is reasonably foreseeable that he would choose to remain in the United States in the event she is refused admission. He has a moderate income, and she works as a housecleaner for low wages. Upon separating they would suffer substantial economic detriment; in addition to the loss of her income, he is committed to sending her remittances once she leaves, in whatever amounts he can afford. They have no children, and there are no extended family members in the United States.

Analysis: These facts alone generally would not favor a finding of extreme hardship. The qualifying relative, and the hardships to him, even when aggregated, include only common consequences – separation from his spouse and economic loss.

Scenario #5: EF and GH, a married couple from Taiwan, entered the United States on student visas 19 and 17 years ago, respectively. They overstayed their visas and have lived here ever since. They have five U.S. citizen children, all of whom were born in the United States and have lived here their entire lives. In the event that the parents are removed to Taiwan, it is reasonably foreseeable that the children would relocate with them. The children range in age from 6 to 15 and are fully integrated into the American lifestyle. None of the children are fluent in Chinese, and they would have to attend Chinese language public schools if they relocate because the family would not be able to afford private school. The 15-year-old child in particular would experience significant disruption to her education in light of her current age and her inability to speak or understand Chinese. The family of seven would be able to afford only a one-bedroom apartment upon relocation.

Analysis: This is the fact situation of Matter of Kao, 23 I. & N. Dec. 45 (BIA en banc 2001). The Board in that case, sitting en banc, held that these facts constitute extreme hardship for the 15-year-old daughter, who was one of the qualifying relatives. The Board therefore did not need to decide whether the other qualifying individuals would also suffer extreme hardship upon relocation. A key factor in that decision was the daughter’s age. In addition to the common consequences (integration into the American lifestyle, current inability to speak the language of the country of relocation, lesser educational opportunities, and economic loss), the Board found that because of her age and the time it would take to become fluent in the language of the country of relocation, the daughter’s education would be significantly disrupted and she would experience extreme hardship as a result.

Scenario #6: KL has lived continuously in the United States since entering without inspection six years ago. She married a U.S. citizen four years ago and seeks a waiver of the 10-year inadmissibility bar for unlawful presence based on extreme hardship to her husband. If she is refused, she would be removed to a country for which the U.S. State Department has issued travel warnings for specific regions, including the region where her family lives. It is reasonably foreseeable that her husband would relocate with her, and that because of the danger they would relocate in one of the areas for which no travel warnings have been issued. Unemployment throughout the country is extremely high, however, and without the family connections that they would forfeit by living outside the region of their family’s residence, the job prospects for both spouses are dim and their basic subsistence needs would be threatened.

Analysis: The fact that parts of the country of relocation are dangerous does not, by itself, constitute extreme hardship. Similarly, economic loss alone is not extreme hardship. But economic detriment that is severe enough to threaten a person’s basic subsistence can rise to the level of extreme hardship. Therefore, if the dangers in parts of the relocation country would induce the qualifying relative to relocate in other parts of the country where economic subsistence would be threatened (or if relocation in such parts is reasonably foreseeable for any other reason), the resulting economic distress would generally favor a finding of extreme hardship, depending on the totality of the evidence. Conversely, if it were reasonably foreseeable that because of the economic realities the qualifying relative, despite the danger, would relocate in a region for which travel warnings have been issued, then that danger would weigh heavily in favor of finding extreme hardship.

AAO Approves I-601 Waiver for INA 212( a)(9)(B) Unlawful Presence Bar

September 7, 2015 By Michael Cho Immigration Lawyer Leave a Comment

I-601 Waiver Legal News

The applicant is this case a native and citizen of Mexico who was found to be inadmissible under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (INA), 8 U.S.C. §1182(a)(9)(B)(i)(II), for having been unlawfully present in the United States for more than one year.

That section reads:

(B) Aliens Unlawfully Present

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

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States . . . and again seeks admission within 3 years of the date of such alien’s departure or removal, or

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

U.S. Citizenship and Immigration Services (USCIS) records reflect that the applicant entered the United States without inspection on March 1, 2001 and voluntarily departed in December 2007 pursuant to an order of the immigration judge.

Accordingly, the applicant accrued unlawful presence for more than one year, and his voluntary departure triggered the ten-year bar, rendering him inadmissible under section 212(a)(9)(B)(i)(II) of the Act.

The applicant sought a waiver of inadmissibility pursuant to INA 212(a)(9)(B)(v) of the INA, 8 U. S.C. § 1182(a)(9)(B)(v).

Section 212(a)(9)(B)(v) of the Act provides for a waiver of section 212(a)(9)(B)(i) inadmissibility as follows:

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

A waiver of inadmissibility under section 212(a)(9)(B)(v) 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. Hardship to the applicant and his children can be considered only insofar as it results in hardship to a qualifying relative. The applicant’s U.S. citizen 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 1 984); 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, etcetera, 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 Twi 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. See Salcido-Salcido, 138 F.3d 1292, 1293 (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 247 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

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

This case illustrates the importance of providing as many details as possible regarding the hardships being suffered by the qualifying relative (or to be suffered in the case of relocation or separative), and more importantly, presenting objective proof of each hardship that is presented to the USCIS. The types of evidence submitted as part of the record in this case include:

copies of invoices
photographs
financial records
affidavits
school records
birth certificates
marriage certificate
Western Union receipts
Kmart Store wire transfers
medical records
letters
criminal records
information about country conditions, education, and employment in Mexico.

The applicant’s wife asserts in the letter dated December 6, 2010 that she would have difficulty living in Mexico because of the living conditions in Michoacan. She contends that there is no electricity, stove, refrigerator, bathroom, or running water in the house of her in-laws. She states that water must be hand carried in buckets from a river that is an hour away on foot, and that the water must first be boiled before it is drinkable. She declares that there is no bathroom to shower so buckets of water and cups are used to bathe, and that the outhouse toilet is away from the house, which worries her because of the wild coyotes, snakes, and scorpions and the far distance from the nearest hospital, which is one hour away. She contends that her daughter’s education would suffer because she does not speak Spanish, and already struggles in school. The applicant’s wife asserts that the schools in Michoacan have few teachers, are small, and lack running water and a bathroom. She declares that Mexico is an unsafe place to live because of drug wars.

The applicant’s wife states in the affidavit dated 2011 that she lives with her parents and daughter, who was born ?2005, and prior to this living arrangement she and her daughter lived with the applicant, who financially supported them. The applicant’s wife asserts that she now works full time while her mother, who has myeloproliferative disorder, takes care of her daughter. She states that she went to Mexico to marry the applicant and spent three months with him Michoacan, and found it was not safe because of drug gangs. She declares that while they were there, a child was kidnapped and killed because his parents could not afford the ransom. She asserts that her husband cannot afford to move from his parent’s house and she sends him money. The applicant’s wife declares that she does not speak much Spanish and does not think she would be able to find enough work to support their daughter. She contends that her daughter needs the applicant and she cannot bear for her to grow up without him. The applicant’s wife asserts that she has been struggling with depression because of separation from her husband and saw a clinical psychologist. She contends that she does not earn enough money to travel to Mexico and that her money is used to support her husband and his parents.

The applicant declares in the letters written i?n 2011 that he misses his wife and daughter, but they would not be able to survive where he lives. He states that his town does not have a clinic, that he does not have transportation, and must travel far to get water that is not safe to drink. He asserts that the school in his town is old, the children are poor and do not have food, and his parent’s house lacks heat and electricity. The applicant contends that there are no jobs in which to earn money to survive and children have died from lack of medicine and medical care. He declares that in Mexico his daughter would not have a school comparable to the one she attends in the United States and would not have sufficient food and clothing for there are days when he and his parents have no food to eat. The applicant asserts that gangs and crime make living in Mexico dangerous.

The asserted hardships of remaining in the United States without the applicant are emotional and financial in nature. The claim of emotional hardship to the applicant’s wife is in agreement with letters from family members, the affidavit from the applicant’s wife, and the psychological evaluation dated 2010. The psychologist states in the evaluation that the applicant’s wife has “symptoms of depression in the context of a 3-year separation from her husband” and diagnosed her with adjustment disorder with anxiety and depressed mood, and an eating disorder.

The applicant’s wife claims she is experiencing financial hardship without income from her husband. Her claim is congruent with the letter from her employer dated 2010 for it reflects she works full time and earns $10.50 per hour, and the 16 wire transfers and money grams showing that since 2009 she has financially supported her husband. The applicant’s wife’s anxiety about her husband’s safety in Michoacan is in agreement with the submitted travel warning stating that the State of Michoacan is home to the dangerous transnational criminal organization (TOC) “La Familia,” and that there have been attacks on government officials, law enforcement and military personnel, and other incidents of TCO-related violence throughout Michoacan. U.S. Department of State, Bureau of Consular Affairs, Travel Warning- Mexico (April 22, 2011 ). When the AAO combined the asserted emotional and financial hardship factors together, the AAO found that they demonstrate that the hardship to the applicant’s wife if she remains in the United States while her husband lives in Michoacan is extreme in that it is more than the typical or common hardships of inadmissibility.

The claimed hardships to the applicant’s wife in relocating to Mexico with her husband are having an impoverished living standard, distress about a substandard education for her daughter, not being able to find a job that will pay enough to survive, and fear they will become victims of drug-related violence. The applicant’s assertion that he is not able to support himself in Michoacan is consistent with letters by his wife and the money grams and wire transfers. The applicant’s claim that it is dangerous in Michoacim is in accord with the earlier described travel warning about Mexico. The applicant’s wife’s statement that her daughter is struggling academically and her education will be jeopardized in Michoacan is in agreement with the parent notification stating that the applicant’s daughter was in the low strategic group, and the article from Cambio de Michoacan asserting that Michoacan has over a million people “above the age of 15 that have not finished their basic education, while in the illiteracy category you can find more than 300 thousand Michoacan inhabitants who are illiterate. ” When the asserted hardship factors are considered together, they establish that the hardship to the applicant’s wife in relocating to Mexico would be extreme and more than the common or typical result of inadmissibility.

In Matter of Mendez-Moralez, 2 1 I&N Dec. 296, 301 (BIA 1996), the Board stated that once eligibility for a waiver is established, it is one of the favorable factors to be considered in determining whether the Secretary should exercise discretion in favor of the waiver. Furthermore, the Board stated:

In evaluating whether section 212(h)(l )(B) relief is warranted in the exercise of discretion, the factors adverse to the alien include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record, and if so, its nature and seriousness, and the presence of other evidence indicative of the alien’s bad character or undesirability as a permanent resident of this country. The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where alien began residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this country’s Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value or service in the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien’s good character (e.g., affidavits from family, friends and responsible community representatives). Id. at 301.

The AAO must then, “[B]alance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented on the alien’s behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. ” Id. at 300. (Citations omitted).

The factors adverse to the applicant in the instant case are his entry without inspection in 2001, unlawful presence, as well as any unauthorized employment. The favorable factors are the extreme hardship to the applicant’s wife, the hardship to his young daughter, as well as their maintaining a close relationship during their years of separation. Letters from his wife’s family members attest that the applicant is a good husband and father, and provider for his family. The applicant has no criminal convictions.

When the AAO considered and balanced the favorable factors against the adverse factors, it found that the favorable factors outweigh the adverse factors and the grant of relief in the exercise of discretion is warranted in this case.

Client Approval: I-601 Extreme Hardship Waiver Approved for Same-Sex Couple in Less than 3 Months

August 19, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 “Extreme Hardship” Waiver for a same-sex couple composed of a Mexican applicant married to his U.S. citizen spouse less than 3 months after it was prepared and submitted by our office.

The U.S. citizen spouse contacted my office after his Mexican spouse attended his consular interview at Ciudad Juarez and was deemed inadmissible to the U.S. based on being subject to the “10 year unlawful presence bar” pursuant to INA Section 212(a)(9)(B).

The Mexican spouse previously entered the U.S. as a minor child but remained unlawfully in the U.S. past his 18th birthday. He was subsequently arrested and convicted of driving under the influence (DUI) and given voluntary departure from the U.S.

Our I-601 Waiver application package included a complete set of USCIS forms requesting consideration of the I-601 Waiver; a 24 page waiver statement detailing relevant case law favorable to my client’s situation and presenting the extreme hardships that applied to this case; and a comprehensive collection of exhibits to prove the extreme hardships being presented.

Section 212(a)(9)(B) of the Act provides, in pertinent part:

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

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

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

”Extreme hardship,” for purposes of the I-601 Waiver, has a special meaning under U.S. immigration law. The factors considered relevant in determining extreme hardship include:

Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.

Financial considerations: future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children; cost of caring for family members (i.e., elderly and infirm parents).

Education: loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time in grade; availability of special requirements, such as training programs or internships in specific fields.

Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.

Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.

Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

Spouses must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.

We drafted a comprehensive 24 page waiver memorandum outlining the relevant case law favorable to our client’s situation. We also discussed in detail the medical, financial, emotional, and psychological hardships the U.S. citizen spouse (and his U.S. citizen parents) are presently suffering from, and proved how these extreme hardships interrelate and would worsen in the event of continued separation of this couple. We also highlighted a variety compelling factors in the life of the applicant that we believed warranted an exercise of favorable discretion on the part of the USCIS.

Some of the relevant factors in this case included the following:

The U.S. citizen spouse suffers from chronic and at times, debilitating anxiety and depression. We documented that this is a long-standing condition that has required antidepressant medication and psychotherapeutic treatment in the past.
Just as importantly, we demonstrated that his anxiety and depression has led to severe physical symptoms as well, and that his overall condition would significantly worsen should his separation from his Mexican spouse continue OR if he should depart the U.S. and re-locate to Mexico to be with his spouse.
The U.S. citizen spouse has an elderly U.S. citizen mother who he visits regularly and takes care of as best he can. His mother has survived two bouts of cancer in the past and relies upon her son for assistance. His mother’s husband (the U.S. citizen spouse’s step-father) is also suffering from severe medical issues of his own and is wholly dependent on his wife to meet his daily and medical needs.
The U.S. citizen spouse has an elderly U.S. citizen father who suffers from a rare and serious immune system disorder. The U.S. citizen spouse visits his father as often as he can and feels a strong obligation to be by his side and care for him as best he can.
The financial burden of maintaining a home in the U.S., visiting and providing care for both his parents, AND spending what time remains with his spouse in Mexico, has caused the U.S. citizen spouse severe financial stress.
The financial stress includes thousands of dollars of debt. We documented that loss of employment by the U.S. citizen spouse due to deterioration of his compromised psychological and physical state, or relocation to Mexico, would both lead financial disaster.

As a result of the I-601 Waiver prepared and submitted by our office, the waiver application was approved in less than 3 months after submission and this couple can soon be re-united inside the United States.

« Previous Page