Smart Immigration Lawyer

I-212 Waiver and I-601 Extreme Hardship Waiver Approved for Montenegrin

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Application for Permission to Reapply for Admission Approved

I-212 Waiver and I-601 Waiver News

The applicant in this case is a citizen of Montenegro who entered the U.S. in 2002 using someone else’s passport.  He was subsequently removed from the U.S. in 2011.  He was deemed inadmissible based on Section 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for seeking to procure admission to the United States through fraud or misrepresentation; Section 212(a)(9)(B)(i)(II) of the Act, 8 U.S.C. §1182(a)(9)(B)(i)(II), for having been unlawfully present in the United States for more than one year; and Section 212(a)(9)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C.§ 1182(a)(9)(A)(ii) for seeking admission within five years of the date of his removal.

This is a common situation facing applicants who require approval of multiple waivers arising out of an entry into the United States based on fraud or misrepresentation, followed by an overstay of more than 1 year, followed by their removal.

1. In these types of situations, a waiver must be requested for each separate ground of admissibility.  In practical terms, a single waiver package consisting of the I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212), I-601 Application of Waiver of Grounds of Inadmissibility (Form I-601), and comprehensive legal brief (with supporting documentation) requesting waiver of the three separate grounds of inadmissibility would suffice.  Additionally, a showing of extreme hardship and favorable exercise of discretion on the I-601 waiver almost always means approval of the I-212 waiver.  This is because a grant of the “I-212 waiver” is a discretionary decision based on the weighing of negative and positive factors; and this analysis is already conducted for purposes of the I-601 “extreme hardship” waiver.

2. The misrepresentation or fraud can be waived pursuant to Section 212(i) of the Act, 8 U.S.C. § 1182(i).  The 10 year unlawful presence bar can be waived pursuant to Section 212(a)(9)(B)(v) of the Act, 8 U.S.C. § 1182(a)(9)(B)(v).  The “5 year bar” for having been previously removed can be “waived” pursuant to Section 212(a)(9)(A)(iii) of the Act, 8 U.S.C. § 1182(a)(9)(A)(iii).

3. A waiver of inadmissibility under section 212(i) of the Act and 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.

The only qualifying relative in this case is the U.S. citizen spouse of the Montenegrin.  The couple’s two children are not deemed to be “qualifying relatives” for purposes of the waiver of inadmissibility under Section 212(i) and Section 212(a)(9)(B)(v).  However, although children are not qualifying relatives under the statute, the USCIS does consider that a child’s hardship can be a factor in the determination whether a qualifying relative experiences extreme hardship.  If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and the USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez 21 I&N Dec. 296, 301 (BIA 1996).

What this means is that extreme hardship to the children should be detailed and documented, but always tied to how that would cause or increase extreme hardship to the qualifying relative.  In other words, when the children suffer, the mother suffers as a result.

4. The favorable factors in this case that led to approval of the I-212 and I-601 waiver are detailed below:

  •  U.S. citizen wife is unable to work because she is caring for her parents.
  • U.S. citizen wife was forced to move out of her house and rent the house in order to pay the monthly mortgage payments.
  • Financial documentation indicates the Montenegrin husband and his U.S. citizen wife had a monthly mortgage payment of $1 ,285.44.
  • A copy of the 2008 federal income tax return for the husband and his wife indicates that the couple had an adjusted gross income of $24,938, and that the occupation of the U.S. citizen wife was customer service.
  • U.S. citizen wife became a stay-at-home mother after the birth of their second child in June 2008, in order to care for their two young children.
  • In an affidavit dated April 11, 2011, the U.S. citizen wife states that she has no independent source of income.
  • A psychological evaluation indicates that the U.S. citizen wife stated that her husband was the only provider in the family, and that she is now getting food stamps.
  • U.S. citizen wife states that she was involved in a car accident in September 1998, in which she suffered broken bones and spinal damage. Medical documentation indicates that the U.S. citizen wife suffered lower back pain, numbness in the left hand and right leg, and temporomandibular joint disorder (TMJ) of the right jaw.
  • Medical documentation indicates that the U.S. citizen wife was diagnosed with two lumps in her breast in 2012. Although the growths were not cancerous, her condition needs to be monitored with continued routine examinations
  • U.S. citizen wife has a history of psychological problems. Following the car accident in September 1998, the aU.S. citizen wife was diagnosed with depression and post-traumatic stress disorder.
  • In a letter dated April 12, 2011 from the psychiatrist who treated the U.S. citizen wife with her psychological problems following the car accident, the psychiatrist states that the U.S. citizen wife began seeing the doctor again in February 2011 for depression, and the psychiatrist prescribed Zoloft for her depression and insomnia.
  • A psychological evaluation performed by a licensed psychologist, states that the U.S. citizen wife is diagnosed with Major Depressive Disorder, Severe, Recurrent. The psychologist states that the U.S. citizen wife is unable to handle her family responsibilities without the assistance of the applicant.
  • U.S. citizen wife has resided in the United States since 1998, and both her parents are lawful permanent residents residing in the United States.
  • Medical documentation for both parents of the U.S. citizen wife indicates the father of the U.S. citizen wife is disabled as a result of a car accident in 2006, and suffers from post-traumatic memory difficulty, post-concussion syndrome, post-traumatic stress disorder/mood disorder, post-traumatic neck and low back pain, periodic dizziness, headaches, and left hip pain.
  • A doctor’s statement states that the U.S. citizen wife is the main care giver for her father.
  • Medical documentation indicates that the mother of the U.S. citizen wife is suffering from fibromyalgia, depression, hypertension, and hyperlipidemia, and that she requires help and assistance from the applicant’s spouse.
  • U.S. citizen wife has two brothers in the United States, and evidence shows that the older brother is currently incarcerated, and the younger brother entered college as a freshman in the Fall of 2011, thus neither brother is able to assist with providing care for the parents of the U.S. citizen wife in the United States.
  • U.S. citizen wife was born in Montenegro, but is ethnic Albanian, she speaks the Albanian language, and does not speak the Serbo-Croatian language, as do the majority of the residents of Montenegro. Only 5.3% of the population of Montenegro speak Albanian, and this would limit chances for the U.S. citizen wife to find employment in Montenegro
  • U.S. citizen wife and their two children tried to live in Montenegro with the Montenegrin husband during the summer months of 2011. Their children became ill and had to undergo medical treatment for acute entercolitis infections, and medical documentation was submitted to verify the condition of the their children.
  • Evidence was submitted to show that the Montenegrin husband was unable to find employment in Montenegro to support his wife and children at the time of their stay in Montenegro.

212 Waiver Legal News: AAO Approves I-212 Waiver and I-601 Extreme Hardship Waiver

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212 Waiver Approved - Extreme Hardship Waiver Approved

The applicant is a citizen of Albania who entered the U.S. on a false Greek passport.  After denial of his applications for asylum and withholding of removal, he was removed from the United States.  He was deemed inadmissible to the United States based on having used fraudulent documents and his unlawful presence of more than one year under Sections 212(a)(6)(C)(i) and 212(a)(9)(B)(i)(II) of the Immigration & Nationality Act.  He also required consent to reapply for admission to the United States until 10 years have passed due to having been removed from the United States.

Section 212(a)(6)(C)(i) of the INA provides 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)(I) of the INA provides that:

The [Secretary] may, in the discretion of the [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 [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…

Section 212(a)(9)(B) of the INA provides that:

(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.

(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…

The applicant in this case has three qualifying relatives for the purposes the I-601 Extreme Hardship waiver: his U.S. citizen spouse, his U.S. citizen mother, and his lawful permanent resident father.  He also required approval of the I-212 Consent to Reapply for Admission to the United States based his removal from the U.S.

This case contains so many factors deemed persuasive by the USCIS that I decided to list all them all below.  When evaluating the chances of your own extreme hardship waiver case, you should look to see whether the hardships and favorable factors found in this case can also be found in your own situation.  It is important to note that psychological and medical evaluations appear to have been done at multiple points in time.  Each evaluation showed a deterioration in the psychological and medical condition of the qualifying relative, thus adding credence to the claim that they are suffering extreme hardship in the absence of the applicant.

Please also keep in mind that each factor must be discussed in two scenarios: if the applicant and the qualifying relative are separated; or if the qualifying relative leaves the United States and re-locates to the applicant’s home country.  Additionally, each factor must be supported by reliable documentary evidence.  I routinely prepare I-601 and I-212 waiver letters that number at least 10-15 pages with voluminous evidence organized as exhibits to support the claims made in the extreme hardship waiver statement.

The favorable factors in this case are as follows:

  • Both parents of the applicant has type 2 diabetes and high cholesterol.
  • The applicant’s 63 year old father is hypertensive and has had 2 strokes.
  • The applicant’s 57 year old mother is being monitored for coronary heart disease and possible breast cancer, and has been diagnosed with major depression and anxiety as a result of separation from her son and related need to sell her restaurant.
  • The applicant, before his deportation, took his parents to their physicians, made sure they took their medication, and watched over them.
  • The applicant’s U.S. citizen is also intimately involved facilitating medical care for her in-laws.
  • The applicant’s U.S. citizen wife has been diagnosed with major depression, paranoia, and anxiety and suffers from insomnia, anxiety, and impaired daily functioning.  She has been prescribed medications.  Her substantial fears about separation from her daughter causes her to spend all day in-doors with her child, which has been described as unhealthy by their doctor.
  • The applicant’s father was laid off from his work, causing him and his wife to lose their health insurance coverage.
  • The applicant’s mother was forced to sell the family restaurant, largely because it was not possible to continue operating it without the applicant’s help .
  • The applicant’s wife spends 10-12 hours a day running a business owned by the applicant.  This business is suffering due to the applicant’s absence from the United States.  It is the sole source of the applicant’s wife income, and she has been forced to move in with her in-laws because she doesn’t have money to afford her own place.
  • The applicant helped his mother and father make payments on their home mortgage.  With the sale of the applicant’s mother’s restaurant and his own business suffering in his absence, there is not enough income to meet the monthly mortgage payments.  As a result, his mother, father, wife and child are at risk of losing their home.
  • The applicant’s father sold everything when he left Albania and has nothing left there.  He is also a lawful permanent resident and would lose his LPR status if he re-locates to Albania to be with the applicant.
  • The applicant’s wife’s parents both live in the United States.
  • The Dept. of State states that healthcare in Albania falls short of U.S. standards, and acknowledges that emergency and major medical care requiring surgery outside Tirana (the capital of Albania) is particularly problematic.
  • When the applicant’s wife and their infant daughter visited Albania, the daughter fell sick with bronchial pneumonia.
  • The Dept. of State states that organized crime, street crime, and violence in Albania are a significant problem and increased in recent years.
  • There are limited work opportunities for women in Albania.  Additionally, the applicant’s parent’s old age and declining health makes their employment prospect also limited.
  • The applicant has no criminal record and has resided in the United States for over 12 years.
  • The applicant has worked, paid his taxes, and and creating jobs for U.S. workers during his stay inside the United States.
  • The applicant has resided for over 2 1/2 years abroad after being deported from the U.S.

I-601A Provisional Waiver

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I601A Waiver

None of my clients have yet been denied on the I-601A Provisional Waiver Applications that I prepared and filed on their behalf. However, the current trend based on I-601A provisional waiver applications filed by others nationally appears to be that the USCIS is denying I-601A waivers when it has “reason to believe” that the applicant may be found inadmissible by a Department of State or consular officer at the time of his/her immigrant visa interview for a reason other than unlawful presence.

The American Immigration Lawyers Association, of which I am a member, is currently working with the USCIS in an attempt to have I-601A provisional waivers adjudicated in a more flexible and meaningful manner.

Unfortunately, the USCIS seems to be denying I-601A provisional waivers in two common situations: when applicants have had encounters with criminal law enforcement authorities in the past that do NOT constitute grounds of inadmissibility under INA Section 212; and when applicants allegedly gave false names, biographic data, or other information to the INS or DHS authorities, where such false information was NOT given in an effort to procure a visa, other documentation, or admission in violation of INA Section 212(a)(6)(C).

My current recommendation as of 08/10/2013 is to be absolutely sure NONE of the situations described below apply to you before you submit your I-601A provisional waiver application.  This means you never had any encounter whatsoever with criminal law enforcement authorities and never submitted any type of false information to the INS or DHS in the past.  Should the USCIS adopt the more flexible and meaningful approach advocated by AILA, this blog and my clients will be updated.

Denials Based on Criminal Acts That Do Not Form the Basis for an Inadmissibility Determination

Numerous reports indicate that USCIS is relying on the “reason to believe” standard to deny applications involving any prior criminal issue, no matter how minor or how long ago the incident took place.  AILA has also received reports of denials where the only offense involved a traffic citation or traffic violation.

Denials Based on Alleged Misrepresentations That Do Not Form the Basis for an Inadmissibility Determination

AILA has also received a number of examples of I-601A waiver applications that were denied based on an allegation that the applicant provided a false name or date of birth when apprehended at the border for attempting to enter without inspection.  Though some of these denials contain limited information specific to the alleged incident (year, border station), most of them are formulaic, and none acknowledge evidence that might have been submitted to explain why the incident does not render the person inadmissible.

USCIS Needlessly Denies Provisional Waiver Applications Where a Meaningful Review of the Evidence Would Reveal No Inadmissibility Concerns Other Than Unlawful Presence

Driving Under the Influence (DUI)

It is well-established that a simple DUI, without more, is not a crime involving moral turpitude and therefore, does not render a person inadmissible. See Matter of Lopez-Meza, 22 I&N Dec. 1188, 1194 (BIA 1999); Murillo-Salmeron v. INS, 327 F.3d 898 (9th Cir. 2003). This position has been acknowledged and cited by the USCIS Administrative Appeals Office in several non-precedent decisions. Moreover, a conviction for an aggravated DUI (based on multiple simple DUIs) under a statute that does not require a culpable mental state is also not a crime involving moral turpitude. Matter of Torres Varela, 23 I&N Dec. 78, 82-86 (BIA 2001).

AILA has received numerous examples of provisional waiver denials where the only incident from the applicant’s past involved a simple DUI conviction.  In many of these cases, the applicant acknowledged the incident on the I-601A form and submitted the record of conviction which revealed no aggravating factors. In at least one case, the conviction was ultimately dismissed and in most cases, the DUI occurred more than five years ago.  However, despite well-documented efforts demonstrating that the conviction would not render the applicant inadmissible, these provisional waiver applications were denied.

The Petty Offense Exception

AILA has also received numerous denials involving minor offenses that would clearly fall under the “petty offense exception” for a single crime involving moral turpitude.  An offense falls under the petty offense exception if (1) the crime was committed when the alien was under age 18, and the crime was committed (and the alien was released from confinement) more than five years before the date of the application; or (2) the maximum penalty possible for the crime did not exceed one year of imprisonment and if convicted, the alien was not sentenced to more than 6 months in prison.

Traffic Violations

Question 29 on Form I-601A seems to indicate that traffic violations are not considered when evaluating eligibility for a provisional waiver.  Yet, AILA has received troubling reports of cases that have been denied where the only offense involved appears to be one or more traffic violations.  Even if such violations could be considered relevant, they will almost always qualify for the petty offense exception.

Allegations of Providing a False Name or Date of Birth When Apprehended After Attempting to Enter without Inspection

AILA has also received many reports of denials based on a “reason to believe” the applicant is inadmissible under INA §212(a)(6)(C) for allegedly providing a false name or date of birth when the applicant was apprehended at the border for attempting to enter without inspection.  While providing a false name in conjunction with the formal inspection and admission process may certainly raise concerns regarding admissibility (for example, presenting a false passport at a port of entry), in most circumstances, simply providing a false name after an arrest for attempting to enter without inspection does not support a finding of inadmissibility under INA §212(a)(6)(C)(i) because it is not made in an attempt to “procure … a visa, other documentation, or admission into the United States” or other benefit under the INA.  Moreover, the Department of State takes the approach that misrepresentations regarding identity are material only if the alien is “inadmissible on the true facts or the misrepresentation tends to cut off a relevant line of inquiry which might have led to a proper finding of ineligibility.”  Providing a false name or date of birth after arrest (in a “catch and release” or “voluntary return” situation) when it has already been determined that the individual is inadmissible is not, by definition “material.”

I-601 Extreme Hardship Waiver Approved

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I601 Waiver

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a Mexican client who was subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B).  She was also subject to the fraud/misrepresentation ground of inadmissibility under INA Section 212(a)(6)(C)(i) due to the use of a false document to enter the United States.

I prepared and filed three separate I-130 immediate relative petitions and ultimately received approval for three immigrant visas: for the Mexican wife who required the I-601 waiver, and her two Mexican children who did not require unlawful presence waivers since they were both under the age of 18.  Any period of time spent unlawfully in the U.S. while under the age of 18 does not count toward calculating unlawful presence under INA Section 212(a)(9)(B) [9 FAM 40.92 N 4.1].

An I-601 Application for Waiver of Grounds of Inadmissibility requires a showing that the applicant’s U.S. citizen spouse or parent would suffer “extreme hardship” if the applicant is refused admission into the United States.  A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

”Extreme hardship” has a special meaning under U.S. immigration law.  The factors considered relevant in determining extreme hardship include:

  • Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.
  • Financial considerations: future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children; cost of caring for family members (i.e., elderly and infirm parents).
  • Education: loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time in grade; availability of special requirements, such as training programs or internships in specific fields.
  • Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
  • Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
  • Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

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

In support of her I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to define “extreme hardship.”  I also discussed and presented evidence of her rehabilitation, good moral character, and overall dedication as a wife and mother who was integral to the daily care of her ill U.S. citizen husband (and his elderly mother).  Since this was her second marriage to a U.S. citizen, I presented compelling evidence that both marriages were genuine when entered into as well as the reasons why her previous marriage ended in divorce.  A table of exhibits also listed a variety of evidence in support of a showing of “extreme hardship” including:

  • Letter and medical records from the physician of the U.S. citizen husband’s mother, confirming her diabetes, hip surgery, frequent infections, low blood sugar, and overall precarious health
  • Affidavits attesting to the U.S. citizen husband’s daily care of his elderly mother with the assistance of his Mexican wife, including hand-feeding her meals on a regular basis
  • U.S. citizen husband being evaluated as 100% disabled for post-traumatic stress disorder by the Dept. of Veterans Affairs resulting from his tours of duty during the Vietnam War
  • Letter from a psychiatrist confirming long-term treatment of the U.S. citizen husband for post-traumatic stress disorder
  •  War decorations awarded to the U.S. citizen husband during his service during the Vietnam War

As a result of our efforts, our client was approved for the I-601 and subsequently, received her lawful permanent residence together with her two children.

I-601 Waiver Approved by I-601 Attorney Michael Cho

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I601 Waiver

Our office received approval of the I-601 waiver on behalf of the Brazilian wife of a U.S. citizen.   She had previously entered the U.S. as the K-1 fiancee of her U.S. citizen husband.  However, the couple attempted to handle her adjustment of status themselves, leading  to mistakes in the filing of the application.  She then departed the U.S. after exceeding her authorized period of stay by over one year.  Our office was contacted after she was deemed inadmissible to the U.S. based on Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, for having been unlawfully present in the United States for more than one year and seeking readmission within 10 years of her last departure from the United States.

INA Section 212(a)(9)(B)(v) provides that a waiver, under INA Section 212(a)(9)(B)(i)(II), is applicable solely where the applicant establishes extreme hardship to her U.S. citizen or lawfully resident spouse or parent.  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 (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).

In support of my client’s I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to define “extreme hardship.”  This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief.

The positive factors in this case included:

  • The U.S. citizen husband suffered from high blood pressure, which was shown to be a hereditary disease influenced by lifestyle factors.  He was also diagnosed with Clinical Depression, with a rapidly deteriorating condition as a result of a miscarriage suffered by his wife during the immigration process.  
  • The U.S. citizen husband’s mother recently suffered two heart attacks and was now dependent on her son to take care of her, hand-feed her meals, and provide for her financially.  He could not move to Brazil without abandoning his U.S. citizen mother and putting her health at risk.
  • The U.S. citizen husband received medical care for his high blood pressure and clinical depression through the insurance provided by his U.S. employer.  We demonstrated that his work performance had suffered noticeably due to the stress and emotional toll caused by the separation from his wife.

As a result of the I-601 waiver prepared and submitted by our office, she has received her lawful permanent resident status and the couple is now re-united inside the United States.

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