Overstay - Page 4 of 5 - Smart Immigration Lawyer

Temporary Protected Status (TPS), Advance Parole, and Adjustment of Status under Arrabally

February 9, 2014 By Michael Cho Immigration Lawyer Leave a Comment

Overview of Adjustment of Status

According to INA Section 245(a), the status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

the alien makes an application for such adjustment,
the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
an immigrant visa is immediately available to him at the time his application is filed.

Overview of the 3 and 10 Year Unlawful Presence Bars

INA Section 212(a)(9)(B)(i) is broken into two (2) sub-groups:

Section 212(a)(9)(B)(i)(I) of the Act (3-year bar). This provision renders inadmissible for three (3) years those aliens, who were unlawfully present for more than 180 days but less than one (1) year, and who departed from the United States voluntarily prior to the initiation of removal proceedings.
Section 212(a)(9)(B)(i)(II) of the Act (10-year bar). This provision renders inadmissible an alien, who was unlawfully present for one (1) year or more, and who seeks again admission within ten (10) years of the date of the alien’s departure or removal from the United States.

Section 212(a)(9)(B)(ii) of the Act defines “unlawful presence” for purposes of sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act to mean that an alien is deemed to be unlawfully present in the United States, if the alien is:

present after the expiration of the period of stay authorized by the Secretary of Homeland Security; or
present without being admitted or paroled.

Both the 3 and 10 year unlawful presence bars can be waived pursuant to section 212(a)(9)(B)(v) of the Act which states:

Waiver. – The [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 [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.

This waiver pursuant to 212(a)(9)(B)(v) is applied for through the I-601 “extreme hardship” waiver discussed extensively on this web site.

Triggering the Bar by Departing the United States and Matter of Arrabally

In the past, an alien who was not inspected and admitted or paroled into the United States was ineligible for adjustment of status (unless protected under INA Section 245(i)). Such a person, when petitioned for permanent residence by a U.S. citizen spouse for example, had to leave the U.S. and attend a consular interview at the U.S. embassy abroad in order to complete the immigrant visa process.

By leaving the U.S. after accruing more than 180 days or one (1) year of unlawful presence, the 3-year or 10-year bar to admission under section 212(a)(9)(B) of the Act was triggered. The I-601 waiver was subsequently required.

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the Board of Immigration Appeals held that an alien who leaves the United States temporarily pursuant to advance parole under section 212(d)(5)(A) of the Act does not make a departure from the United States within the meaning of section 212(a)(9)(B)(i)(II) of the Act.

Advance parole is an administrative practice derived from the general parole authority in INA § 212(d)(5), giving an individual who is in the United States advance authorization to enter the United States after temporary travel abroad. U.S. Citizenship and Immigration Services (USCIS) has the authority to grant advance parole and issue a Form I-512L, an advance parole authorization document. Form I-512L allows a Customs and Border Protection (CBP) or other immigration inspector at a U.S. port-of-entry to parole an individual into the United States. Advance parole does not guarantee subsequent parole into the United States. The inspecting immigration official may, in his or her discretion, deny parole at the port-of-entry.

In a series of AAO decisions citing Matter of Arrabally and Yerrabelly thereafter, applicants who entered without inspection and subsequently obtained Temporary Protected Status (TPS), were allowed to use advance parole obtained pursuant to section 212(d)(5)(A) to temporarily leave the U.S., re-enter the U.S., and pursue pending applications for adjustment of status. They were deemed to have NOT made a “departure” from the United States for purposes of section 212(a)(9)(B)(i)(II) of the Act.

In other words, the 3 and 10 year unlawful presence bars were not triggered. Accordingly, the applicants were not deemed inadmissible under section 212(a)(9)(B)(i)(I) and 212(a)(9)(B)(i)(II) of the Act. Additionally, they were deemed to have been paroled into the United States, and now eligible for adjustment of status under INA Section 245(a).

In these cases, the applicants were allowed to proceed with their adjustment of status applications in the United States based upon their marriage to a U.S. citizen spouse. Just as importantly, the I-601 extreme hardship waiver was deemed unnecessary since the 3 and 10 year unlawful presence bars were not triggered.

It should be noted that this “beneficial interpretation” using Matter of Arrabally and Yerrabelly would extend to any immediate relative of a U.S. citizen applying for adjustment of status (i.e. the spouse, child under 21, or parent of a U.S. citizen son or daughter over 21 years old).

In summary, this has been welcome news for those granted TPS since Matter of Arrabally and Yerrabelly was decided. Those who entered the U.S. without inspection and overstayed for 6 months or longer, subsequently obtained Temporary Protected Status (TPS), and are married U.S. citizens, have been able to obtain advance parole, leave the United States, and re-enter the U.S. to proceed with their adjustment of status to permanent residence without need for the I-601 extreme hardship waiver.

Other Inadmissibility Considerations

Prior to traveling abroad under advance parole, it is important to determine whether other grounds of inadmissibility may apply. Keep in mind that Matter of Arrabally and Yerrabelly discussed above benefits those who are only subject to the 3 or 10 year bar upon their departure from the United States. As such, the inspecting immigration officer may deny entry into the United States for those holding advance parole if the officer finds that any of the other inadmissibility grounds apply.

For example, an applicant who has already triggered the unlawful presence bars under INA Section 212(a)(9)(B) or the permanent bar under INA Section 212(a)(9)(C) (by previously leaving and re-entering without advance parole) may still be subject to these bars.

Future travel under advance parole will not cure previously incurred bars. Immigration-related fraud or misrepresentation and false claims to U.S. citizenship can also bar admission. Thus, prior to departing the United States, applicants with advance parole must consider all other inadmissibility grounds including criminal inadmissibility grounds identified at INA Section 212(a)(2).

Unexecuted deportation or removal order. If such an order exists, and if the applicant were to depart the United States on advance parole, he or she likely would be found to have executed the deportation/removal order and may not be able to re-enter the United States for a prescribed period of time.

To avoid this, an applicant with an unexecuted removal order can submit a motion to reopen removal proceedings with the Immigration Court or the BIA. Once removal proceedings are reopened, the removal order no longer exists. The applicant can then move to administratively close or terminate the reopened proceedings. If either termination of proceedings or administrative closure is granted, the applicant can travel on advance parole without risking the consequences of an executed removal order. I typically contact the relevant ICE Office of the Chief Council (OCC) to request that the parties jointly move to reopen and then administratively close or terminate the removal proceedings.

USCIS Issues Field Guidance on I-601A Provisional Waiver Applicants with Criminal Arrests or Convictions

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

On March 4, 2013, the USCIS began a new provisional unlawful presence waiver program for immediate relatives of U.S. citizens whose only ground of inadmissibility is unlawful presence in the United States under section 212(a)(9)(B)(i)(I) and (II) of the Immigration and Nationality Act (INA).

The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all I-601A Provisional Waiver eligibility requirements and warrant a favorable exercise of discretion.

There are several circumstances that may render an individual ineligible for a provisional unlawful presence waiver. For example, individuals with final orders of exclusion, deportation, or removal; individuals who are currently in removal proceedings that are not administratively closed at the time of filing; and individuals who have a pending application with USCIS for lawful permanent resident status are not eligible to apply for the provisional unlawful presence waiver. Individuals for whom there is a reason to believe that they may be subject to grounds of inadmissibility other than unlawful presence at the time of the immigrant visa interview with a Department of State (DOS) consular officer also are ineligible for the provisional unlawful presence waiver. See 8 CFR 212.7(e) (2013).

If a USCIS officer determines, based on the record, that there is a reason to believe that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of his or her immigrant visa interview with a DOS consular officer, USCIS will deny the request for a provisional unlawful presence waiver. See 8 CFR 212.7(e)(4)(i) (2013).

Since the commencement of the I-601A Provisional Waiver program, the USCIS denied I-601A waiver applications when the applicant had any criminal history. In these cases, if the record contained evidence that an applicant was charged with an offense or convicted of any crime (other than minor traffic citations such as parking violations, red light/stop sign violations, expired license or registration, or similar offenses), regardless of the sentence imposed or whether the offense is a Crime Involving Moral Turpitude (CIMT), USCIS denied the I-601A waiver application.

The USCIS has now issued guidance to its officers to review all evidence in the record, including any evidence submitted by the applicant or the attorney of record.

If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication, or (2) is not a Crime Involving Moral Turpitude under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense.

The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful presence waiver, including whether the applicant warrants a favorable exercise of discretion.

This news has been much-anticipated by potential waiver applicants who have certain convictions such as Driving Under the Influence (DUI) on their record. Assuming the applicant’s criminal conviction(s) does not trigger a ground of inadmissibility, or their criminal conviction falls under the “petty offense” or “youthful offender” exception, waiver applicants may now proceed with their I-601A Provisional Waiver applications.

Keep in mind that it is extremely important for applicants with criminal conviction(s) in their background to prepare and submit a memorandum, together with their I-601A waiver package, clearly describing why their criminal conviction(s) does not trigger a ground of inadmissibility; or why their criminal conviction falls under the “petty offense” or “youthful offender” exception of INA section 212(a)(2)(A)(ii).

How to Prepare a Powerful Psychological Evaluation to Prove Extreme Hardship for the I-601 and I-601A Waiver

January 13, 2014 By Michael Cho Immigration Lawyer

Extreme Hardship Defined

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

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

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

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

Section 212(a)(6)(C)(i) of the Act provides, in pertinent part, that:

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

Section 212(i) of the Act provides, in pertinent part:

(I) 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.

(**Please note that the I-601a Provisional Waiver requires a showing of extreme hardship to the U.S. citizen spouse or parent. In other words, lawful permanent residents are not allowed to be the qualifying relative for I-601a Provisional Waivers).

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 of Immigration Appeals 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 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 lge, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of lge, 20 I&N Dec. at 882). The adjudicator ”must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Id. The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships. See, e.g., Matter of Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (BI2001) (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).

The Psychological Evaluation

The psychological evaluation can thus be a powerful piece of evidence to demonstrate and prove the extreme hardship that the qualifying relative would suffer if he or she is separated from the applicant; or alternatively, if the qualifying relative leaves the U.S. and re-locates abroad in order to be with the applicant. I will first go over an I-601 waiver application that was approved by the AAO to examine the characteristics of a successful and persuasive psychological evaluation.

The applicant in this case is a native and citizen of Mexico who was found to be inadmissible to the United States pursuant to section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), for fraud or willful misrepresentation of a material fact in order to procure an immigration benefit. The applicant is married to a U.S. citizen and seeks a waiver of inadmissibility pursuant to Section 212(i) of the Act, 8 U.S.C. § 1182(i), in order to reside with her husband in the United States.

The qualifying relative (the U.S. citizen husband) was born in Texas. He is 58 years old, and has 10 siblings, 4 children from previous relationships, and 3 grandchildren who all reside in the U.S. He has a 88 year old elderly father. He fears that he would not have a job if he moves to Mexico and consequently would not be able to afford visits to see his father. He encountered a shoot-out between drug cartels and the Mexican military during a visit to see his mother-in-law during a visit to Ciudad Juarez, Mexico. He and his nephew were stopped by armed men with machine guns who threatened their lives during a visit to see his mother-in-law in the state of Sinaloa, Mexico. A letter from his sister-in-law confirms the violence in Los Mochis Mexico, and the general state of disrepair of the house there that the applicant and her U.S. citizen husband would have to live in.

The psychological report submitted as part of the I-601 waiver application expressly states the following:

The U.S. citizen husband was the middle child of eleven children who grew up in a home with a physically and verbally abusive alcoholic father.
The U.S. citizen husband watched and heard his mother being beaten and felt powerless to stop his father.
The U.S. citizen husband is very close to his siblings since they supported each other while growing up in order to survive.
The U.S. citizen husband grew up in Idaho where he felt a sense of discrimination and prejudice during his school years.
When the U.S. citizen husband was 23 years old, he was called back home from the U.S. Army because his mother had died, his father had left, and there was no one to care for his younger siblings.
The U.S. citizen husband’s first marriage was brief and they had a son together. His ex-wife disappeared with his son and he was unable to find him until his son was 12 years old and complained that his mother abused him. His son subsequently lived with him for two years.
The U.S. citizen husband’s physician prescribed him Prozac for his depression which dates back to his first marriage.
The U.S. citizen husband re-married and had two children with his second wife. This marriage lasted 28 years.
When the U.S. citizen husband met his current wife (the I-601 waiver applicant), he felt there was new meaning in life.
He fears he will go into serious depression if she moves back to Mexico without him, and fears that if he moved to Mexico with her, he would deeply miss his children and siblings.
The U.S. citizen husband has a history of depression and anxiety.
The U.S. citizen husband has difficulty sleeping, feels anxious, and had had thoughts of suicide.
The U.S. citizen husband has been diagnosed with Dysthymia and Adjustment Disorder with Depression and Anxiety.
If the wife is not allowed to remain in the U.S., the U.S. citizen husband would experience serious psychological consequences and it his highly likely his depression would worsen to the point he would consider suicide.

In my experience, effective psychological evaluations should always include a detailed personal history of the person being examined (along with the waiver applicant and family members in general). It should concisely and accurately detail the unique circumstances of the patient that makes him or her particularly vulnerable to hardship.

The psychological evaluation in support of a I-601 or I-601a waiver should summarize the psychological and medical history of the patient, including the length of time the patient has suffered from psychological disorders and medical illnesses; any treatments received including surgery; and the medications the patient has been prescribed. This is particularly important because the USCIS can discount the credibility of psychological diagnoses prepared solely to support the I-601 or I-601A waiver application. A discussion of a history of previously diagnosed psychological disorder(s) will go a long ways towards establishing credibility.

The psychological evaluation should describe the emotional impact of both separation and re-location. In other words, it must discuss the psychological and emotional impact on the qualifying relative if he or she becomes separated from the applicant due to inadmissibility; as well as the psychological and emotional impact on the qualifying relative if he or she re-locates abroad in order to be with the applicant.

Since mental and physical well-being have been found to be closely related, the psychological report can also emphasize the physical consequences of patient’s current or future psychological state. For example, if the patient suffers from coronary disease, then an aggravation of his or her psychological disorders could contribute to a fatal heart attack.

The psychological evaluation should state the methodology used to diagnose the patient. It should specify all of the symptoms shown by the patient that led to a particular diagnosis. If applicable, if should expressly state that separation from the applicant (and re-location abroad to be with the applicant) would make the psychological disorders worsen. It should also state what the consequences will be for the patient if his or her psychological disorders worsen, including the possibilities of decompensation or suicide.

A well-written psychological evaluation should have a final section that summarizes the conclusions of the psychologist or psychiatrist. It should emphasize all of the hardships that the patient is currently suffering from, as well as those that he will suffer (or that will grow worse) should the applicant not be admitted to the United States.

It is therefore essential that the psychological evaluation be prepared by a professional who has experience with the unique requirements of the extreme hardship standard used in I-601 and I-601a waiver applications. If your chosen psychologist or psychiatrist does not have such experience, I suggest providing a link to this article and making sure they understand the importance of a well-written and detailed psychological report.

Consular Recommendation of the 212(d)(3) Non-Immigrant Waiver Application to the CBP

January 11, 2014 By Michael Cho Immigration Lawyer 1 Comment

INA Section § 212(d)(3)(A) of the Immigration and Nationality Act states in relevant part:

Except as provided in this subsection, an alien (i) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General, or (ii) who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

INA §212(d)(3)(A) thus waives virtually all inadmissibility grounds for non-immigrants including:

health-related grounds (communicable disease, mental illness, drug abuser or addict);
criminal grounds (including crimes involving mortal turpitude, multiple criminal convictions, drug violations, and prostitution);
likelihood of becoming a public charge;
immigration violations (including failure to attend removal proceedings, misrepresentation, false claims of citizenship, alien smuggling, aiding and abetting unlawful employment, student visa abusers, and overstays subject to three– and ten-year bars);
grounds covering persons ordered removed upon arrival, unlawful voters, and U.S. citizens who renounced citizenship to avoid taxation; and
involvement in terrorist activities and association with terrorist organizations.

212(d)(3) non-immigrant waivers by visa applicants are generally filed at a U.S. consulate or embassy abroad. Visa exempt nationals such as Canadians generally have to file in advance of their date of travel at a CBP-designated port of entry or pre-clearance office. All 212(d)(3) waiver applications are then forwarded to the U.S. Customs and Border Protection’s Admissibility Review Office in Washington D.C. Thus, it is not the U.S. Department State or the USCIS that ultimately makes the decision to approve or deny a 212(d)(3) waiver. It is U.S. Customs and Border Protection.

The CBP ARO does consider the same factors used by the U.S. Department State when reviewing 212(d)(3) non-immigrant waiver applications but is not bound by them. Specifically, the ARO will first look at whether the 212(d)(3) waiver was “recommended” by the U.S. consular officer. In making a recommendation to CBP, State Department officers are instructed to include:

• The relevant humanitarian, political, economic or public relations factors;

• a statement (where applicable) that DOS is satisfied the alien has a residence abroad which he or she has no intention of abandoning;

• a statement that the alien is properly classified as a nonimmigrant;

• the officer’s precise recommendation and the reasons therefor.

Consular officers are also instructed that a 212(d)(3) non-immigrant waiver may be requested (except as precluded by statute) for any nonimmigrant alien whose presence would not be detrimental to the United States and that the law does not require that recommendations be limited to exceptional, humanitarian or national interest cases.

In fact, consular officers are instructed to exercise discretion and good judgment but may recommend waivers “for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.”

In my experience however, some consular officers are not familiar with the 212(d)(3) waiver process. I have had cases where thoroughly prepared 212(d)(3) waiver packages were initially not accepted by the consular officer at the visa interview; only to be accepted a few days later after repeated inquiries by my office and another visit by the applicant to the consulate. It is important to be clear, concise, and persistent in these matters.

Once the 212(d)(3) non-immigrant waiver is received by the ARO, the reviewing officer at the CBP considers all of the above and also considers that the Congress has deemed these aliens inadmissible to the United States. In considering the waiver, the CBP officer will weigh the benefit, if any, to the United States should the waiver be granted. In situations where the proposed visit is for the purpose of medical treatment, the CBP officer will consider whether such treatment is available to the alien abroad. Above all, CBP officers are reminded that granting of waivers of inadmissibility grounds should not be routine and available just for the asking. Thus, it is extremely important that every 212(d)(3) non-immigrant waiver application be well-prepared with a detailed legal and factual analysis and well-documented with essential support documents.

However, there may be instances where the consular officer refuses to “recommend” a waiver to the ARO in the first place. This may occur when they believe a waiver recommendation is not warranted given factors such as the recency and seriousness of the crime or offense, type of disability, reasons for the proposed travel to the United States and the probable consequences, if any, to the public interests of the United States. What many applicants (and lawyers) do not seem to realize is that there is a process in place for mandatory referrals of 212(d)(3) waiver applications to the Department of State Visa Office for consideration of a “recommendation” to the CBP ARO:

Mandatory referrals are required in the following situations:

Any case where it is requested by the alien or an interested party in the U.S. that it be forwarded;
Any case where the consular officer knows or has reason to believe that pertinent considerations not available at the post may be available to or through the Department;
Prior refusals;
Any case where the alien’s presence or activities in the U.S. might become a matter of public interest or of foreign relations significance;
Any case in which the Department has mandated an advisory opinion be sought;
The case of any alien who is a national of a country which the U.S. does not recognize or with which we have no diplomatic relations;
The case of any alien not classifiable under INA Section 101 (a) (15) (A) or (G) but destined on official business to the United Nations;
Cases of any SILEX or BUSVIS/SILEX alien and of certain CHINEX or BUSVIS/CHINEX aliens;
The case of any Soviet applying for an I visa;
Any case involving 212(a)(3)(B);
Any cases in which the consular officer recommends a term of greater than one year.

Having said that, the decision-making of consular officers are always given deference. It is always better to present a strong 212(d)(3) waiver application from the beginning and communicate constructively with the consular officer to secure a recommendation to the CBP ARO.

Once a waiver is approved, they are typically approved for a one year period with multiple entries allowed. After the first or second extension, a 5-year validity 212(d)(3) waiver can be given. However, keep in mind that multiple entry waivers are not given to an alien who:

• Has a mental or physical disorder;
• Is a narcotic drug addict or a narcotic trafficker (multiples have been granted before in special cases with DEA/Customs/FBI involvement);
• Is afflicted with a communicable disease;
• Was convicted of a crime involving moral turpitude and is less than 5 years post-release;
• Has a prostitution related activity within 10 years of visa application.

AAO Approves I-601 Waiver for 10 Year Unlawful Presence Bar

December 27, 2013 By Michael Cho Immigration Lawyer Leave a Comment

I-601 Waiver Legal News

The applicant is a native and citizen of Pakistan who was found to be inadmissible to the United States pursuant to section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (the Act), for having been unlawfully present in the United States for more than one year and again seeking admission within ten years of his last departure from the United States. The applicant is the spouse of a United States citizen. He seeks a waiver of inadmissibility to reside in the United States with his family.

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

(B) Aliens Unlawfully Present.-

(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 such alien’s departure or removal from the United States, is inadmissible.

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.

The AAO states that 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 deportation, 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. at 631-32; Matter of Ige, 20 I&N Dec. at 883; Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 81 3 (BIA 1968).

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

The AAO specifically states that the actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships. See, e.g., In re 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).

Regardless of the type of family relationship involved, the hardship resulting from family separation is determined based on the actual impact of separation on an applicant, and all hardships must be considered in determining whether the combination of hardships takes the case beyond the consequences ordinarily associated with removal or inadmissibility. Matter of 0-J-0-, 21 I&N Dec. at 3 83. Nevertheless, although the AAO requires an applicant to show that a qualifying relative would experience extreme hardship both in the event of relocation and in the event of separation, in analyzing the latter scenario, the AAO gives considerable, if not predominant, weight to the hardship of separation itself, particularly in cases involving the separation of spouses from one another and/or minor children from a parent. Salcido-Salcido, 13 8 F.3d at 1293.

What this means for the I-601 or I-601A waiver applicant is that every hardship to the qualifying relative that results from the separation and relocation should be listed, described, and most importantly, described in detail as to its unique circumstances. For example, while a U.S. citizen spouse re-locating to Mexico may not be considered an “extreme hardship” in and of itself; showing that the U.S. citizens spouse would face dangerous conditions in the specific region of Mexico where she will reside, cannot re-locate her child abroad due to an existing child custody agreement, and suffers from a history of psychological depression, may demonstrate the extreme nature of the hardship.

The factors in this case cited by the AAO in finding extreme hardship and approval of the I-601 waiver are:

Psychological evaluation, letters from medical professionals and an affidavit from the qualifying spouse confirming the severity of her depression due to the applicant’s absence.
The psychological evaluation explains that the qualifying spouse has had a history of psychological issues, such as depression, which began prior to her separation from the applicant. If the applicant is unable to return to the United States due to his inadmissibility, the psychologist finds that the qualifying spouse may “require hospitalization in order to protect her from acting on her suicidal ideation.”
Medical issues of the qualifying relative including chronic hyperthyroidism and sinus allergies.
Financial hardship being suffered by the qualifying relative as shown by her tax returns, banking documentation, letter from the qualifying spouse’s employer, and lease for the qualifying spouse’s residence
Qualifying spouse’s affidavit further detailing her financial struggles, and indicating that she and her daughters “live in a very small one bedroom apartment where [they] share the same bed” and that she “can barely make ends meet and every single day is a great financial and emotional struggle.” The qualifying spouse explains her struggles as a single parent in raising two young children.
The psychological evaluation also notes that the qualifying spouse, who lost her own father as a young child, is also suffering emotional issues because she does not want her own children to be raised with only one parent.
Country conditions showing Pakistan as “extremely unstable, and dangerous, particularly for Americans.”
Qualifying spouse’s affidavit stating that the applicant is unemployed in Pakistan and unable to work due to a disability caused by Polio. Therefore, if the qualifying spouse were to relocate to Pakistan and the applicant is still unemployed, she may face financial difficulty and other hardships as a result.

The specific supporting documentation provided in this case includes:

Affidavits from the qualifying spouse and the applicant
Naturalization certificates for family members
Letters from medical professionals
Psychological evaluation
Tax returns, some banking documentation, a pay stub and a letter from the applicant’s employer in Canada
Letter from the qualifying spouse’s employer
Lease for the qualifying spouse’s residence
Country condition materials.

The key points to take away from this case are that psychological evaluations are much more effective when conducted by a medical professional who has been treating the patient for a long period of time. When a psychological evaluation is conducted solely for purposes of the I-601 waiver, the evaluation should state, if at all possible, the long history of the psychological disorder(s) suffered by the qualifying relative.

Additionally, disabilities of the applicant, in so far as they affect the qualifying relative, should also be noted. In this case, the applicant had a disability due to polio which affects his ability to obtain employment in Pakistan (thereby causing financial hardship to the qualifying relative should she re-locate to Pakistan).

Letters from the qualifying relative’s employer are also effective if they support financial hardship. For example, the employer stating that the qualifying relative’s job performance has suffered and may lead to termination due to the emotional impact of the immigration-caused separation, would support the case for both financial and psychological hardships.

It should also be noted that extreme hardship is a requirement for eligibility, but once established it is but one favorable discretionary factor to be considered. Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). For waivers of inadmissibility, the burden is on the applicant to establish that a grant of a waiver of inadmissibility is warranted in the exercise of discretion. Id. at 299. The adverse factors evidencing an alien’s undesirability as a permanent resident must be balanced with the social and humane considerations presented on his behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of this country. Id. at 300.

In Matter of Mendez-Moralez, in evaluating whether section 212(h)(1)(B) relief is warranted in the exercise of discretion, the BIA stated that: The factors adverse to the applicant 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, recency and seriousness, and the presence of other evidence indicative of an 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 the alien began his 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 and service to 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) . . . .

The BIA states that upon review of the record as a whole, a balancing of the equities and adverse matters must be made to determine whether discretion should be favorably exercised. The equities that the applicant must bring forward to establish that she merits a favorable exercise of administrative discretion will depend in each case on the nature and circumstances of the ground of exclusion sought to be waived and on the presence of any additional adverse matters, and as the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence. Id. at 301.

The positive factors in this case were found to outweigh the adverse factors and discretion was exercised in favor of the applicant.

Parole In Place and the I-601 Waiver or I-601A Provisional Waiver

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

The USCIS has release a policy memorandum concerning the parole of spouses, children and parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve.

INA § 212(d)(5)(A) gives the Secretary the discretion, on a case-by-case basis, to “parole” for “urgent humanitarian reasons or significant public benefit” an alien applying for admission to the United States. Although it is most frequently used to permit an alien who is outside the United States to come into U.S. territory, parole may also be granted to aliens who are already physically present in the U.S. without inspection or admission. This latter use of parole is sometimes called “parole in place.”

The basic authority for parole in place is INA § 212(d)(5)(A), which expressly grants discretion to parole “any alien applying for admission to the United States.” INA § 235(a)(1), in turn, expressly defines an applicant for admission to include “an alien present in the United States who has not been admitted.”

According the new policy memorandum issued by the USCIS:

“As noted above, the decision whether to grant parole under INA § 212(d)(5)(A) is discretionary. Generally, parole in place is to be granted only sparingly. The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, however, ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual. If USCIS decides to grant parole in that situation, the parole should be authorized in one-year increments, with re-parole as appropriate.”

Thus, for an alien who entered without inspection, a grant of parole under INA § 212(d)(5)(A) affects at least two of the eligibility requirements for adjustment of status. First, adjustment of status requires that the person be “admissible.” INA § 245(a)(2). Parole eliminates one ground of inadmissibility, section 212(a)(6)(A)(i). Second, adjustment of status requires that the alien have been “inspected and admitted or paroled.” INA § 245(a). The grant of parole under INA § 212(d)(5)(A) overcomes that obstacle as well.

The alien must still, however, satisfy all the other requirements for adjustment of status. One of those requirements is that, except for immediate relatives of United States citizens and certain other individuals, the person has to have “maintain[ed] continuously a lawful status since entry into the United States.” INA § 245(c)(2). Parole does not erase any periods of prior unlawful status.

Consequently, an alien who entered without inspection will remain ineligible for adjustment, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exemptions. Moreover, even an alien who satisfies all the statutory prerequisites for adjustment of status additionally requires the favorable exercise of discretion.

The practical effect of this memorandum is that immediate relatives of active or former members of the U.S. Armed Forces (or Selected Reserve of the Ready Reserve), who entered the U.S. “illegally” (without inspection or parole), can apply for adjustment of status inside the United States once parole in place has been granted. They no longer need to travel back to their home country to consular process for their permanent residence. This also means that the I-601A Provisional Waiver, or I-601 Extreme Hardship Waiver, is no longer required for this group of applicants, who would have been subject only to the unlawful presence ground of inadmissibility upon departure from the U.S.

Keep in mind that the I-601 waiver may still be required as part of the adjustment of status process for those subject to other grounds of inadmissibility, such as fraud/misrepresentation or conviction of a crime of moral turpitude.

I-601 Extreme Hardship Waiver Approved Based on China Country Conditions

October 8, 2013 By Michael Cho Immigration Lawyer Leave a Comment

I-601 Waiver News

The applicant in this case is a native and citizen of China who entered the United States using a photo-substituted passport. The applicant was deemed inadmissible under section 212(a)(6)(C)(i) of the Act for willful misrepresentation of a material fact in order to procure an immigration benefit. The applicant is married to a U.S. citizen and the son of lawful permanent resident parents.

The applicant applied for a waiver of inadmissibility pursuant to Section 212(i) of the Act in order to reside with his wife and his parents in the United States.

Section 212(a)(6)(C)(i) of the Act provides:

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

Section 212(i) provides, in pertinent part:

(1) The Attorney General.[ now Secretary of Homeland Security) may, in the discretion of the Attorney General [now Secretary of Homeland Security], waive the application of clause (i) of subsection (a)(6)(C) in the case of an immigrant 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 [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully permanent resident spouse or parent of such an alien ….

The specific take away from this case is that Chinese applicants should always mention the one child policy of the Chinese government, and how this policy is liable to impact the life of the qualifying relative. More generally, the country conditions of any country should discussed if it likely to have a significant and detrimental impact upon the qualifying relative. The Department of State Travel Advisory is often referenced by waiver applicants, but other credible sources can also be used.

Additionally, this case demonstrates the importance of showing extreme hardship to the applicant, when it subsequently causes extreme hardship to the qualifying relative. In this case, the applicant’s father is an asylee from China who runs the risk of being persecuted upon his return to China. Additionally, the applicant himself may be jailed for leaving China without permission and sterilized for violation of China’s one child policy upon his return. Such an event is highly likely to cause extreme psychological, financial, and ultimately physical hardship to the applicant’s father, who is the qualifying relative. Thus, the impact of the Chinese government’s policies can be discussed in the context of both the applicant and the qualifying relative.

The favorable factors that led to approval of the I-601 Extreme Hardship Waiver cited by the AAO in its decision are listed below:

The lawful permanent resident (LPR) father has lived in the United States since 1989 when he was granted asylum.
The LPR father is sixty two years old and lives with his son, the applicant, who he describes as his favorite son.
The LPR father works full-time as a cook at his take-out Chinese restaurant, and often has leg pain and other aches because he is old. He has high blood pressure and high cholesterol.
The applicant (the LPR father’s son) has always been by his father’s side, taking care of him. The LPR father states he cannot imagine his life without his son, sobbed when his son’s waiver application was denied, and has not been able to eat or sleep.
The LPR father states that if his son returns to China, he would have to go with him. However, he was granted asylum in the United States and can never go back to live in China because he worries he would be persecuted by the Chinese government if he returned.
The LPR father fears his son would be jailed on account of leaving China without permission and that his son would be sterilized due to China’s one-child policy.
The LPR father states that he still remembers the terrible life he had in China and he is no longer familiar with living in China.
The LPR father would have to sell his restaurant and would risk not having any job in China considering his old age.
The LPR father lives with his son and his son’s wife and children in the United States.
The applicant has significant family ties to the United States, including his U.S. citizen wife, two U.S. citizen children, lawful permanent resident parents, and other relatives
There is demonstrated extreme hardship to the applicant’s entire family if he were refused admission
Affidavits describe the applicant as a kind and gentle person, hard worker, and good husband
The applicant has no arrests or criminal convictions of any kind

I-601A Provisional Waiver Processing In-Depth & Latest Stats on Approvals

October 3, 2013 By Michael Cho Immigration Lawyer Leave a Comment

Courtesy of CLINIC, we now have a more in-depth understanding of the internal processing that an I-601A Provisional Waiver goes through after being submitted an applicant. Please find the update by Susan Schreiber and Charles Wheeler below. I have added highlights in bold to areas that I feel are important to keep in mind when preparing and submitting the I-601 Provisional Extreme Hardship Waiver.

NBC Background

Since March 4, 2013, The National Benefits Center has been responsible for adjudication of I-601A applications for provisional waivers.

Statistics

The NBC has provided the following numbers based on I-601A applications received or adjudicated from March 4 – September 14, 2013:

23,949 applications sent to Lockbox

17,996 applications accepted by Lockbox

5,953 application rejected by the Lockbox

The reasons for rejection could include no applicant signature, no proof of I-130 approval, no proof of Immigrant Visa fee paid, or applicant is under 17. The number of applications received may include re-filings by applicants whose cases were initially rejected at the Lockbox.

The NBC has 12,098 applications in the pipeline, with approximately 2,300 ready for processing. It is averaging approximately 600 applications/week, so it has about four weeks of applications to adjudicate. With 45 adjudicators currently working these cases, this averages out to each adjudicator handling about 13 applications per week, or about 2.6 per day. Mr. Blackwood noted that adjudicators have other work responsibilities, including time spent in trainings and at meetings.

The NBC has issued the following decisions:

3,497 approvals (59%)

2,292 denials (39%)

103 admin closures (application returned fur various reasons, e.g., filed I-601 instead of I-601A) (2%)

Although applications have been denied for various reasons, the highest number of denials – 1,093, or 48% of all denials – is for “reason to believe.” The second highest number – 937, or 41% of all denials – is for failure to establish establish extreme hardship. Other reasons for denial include abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and applicant subject to existing or final order of removal.

At present, the average time between receipt of an application at the Lockbox and decision issuance is 103 days. The goal is to reduce the adjudication time to 90 days. The NBC adjudicators were working at that pace initially until the “reason to believe” denials became a controversial issue.

[Read more…]

« Previous Page