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USCIS Draft Guidance on Adjudication of Extreme Hardship Waivers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Selected USCIS draft guidance concerning the adjudication of applications for those discretionary waivers of inadmissibility that require showings of “extreme hardship” to certain U.S.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.

Client Approval: 212(d)(3) Non-Immigrant Waiver Approved for 10 Year Unlawful Presence Bar

June 17, 2015 By Michael Cho Immigration Lawyer Leave a Comment

We recently received approval for a 212(d)(3) non-immigrant waiver prepared on behalf of a Russian client who was subject to the 10 year “unlawful presence” bar pursuant to INA Section 212(a)(9)(B)(i)(II). She entered the U.S. on a B-1/B-2 visitor visa in 1997 and overstayed the terms of her visa until 2007 when she voluntarily left the U.S. on her own initiative.

We prepared a comprehensive 212(d)(3) non-immigrant waiver in the form of a legal brief discussing the three legal factors set forth by Matter of Hranka, 16 I&N Dec. 491 (BIA 1978).

In the case, Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the Board of Immigration Appeals reversed a district director’s denial of a waiver application filed by a Canadian woman who had been deported for engaging in prostitution and admitted to previous heroin use. She filed her application only two years after having been deported. She requested entry to visit relatives and engage in various tourist activities.

In overturning the district director’s decision to deny the application, the BIA accepted as proof of rehabilitation letters from the applicant’s mother, and the principal of the high school the applicant had attended, who is a psychologist. It held that the applicant’s reasons for entering the United States need not be compelling. The BIA articulated three criteria for granting a waiver under INA 212(d)(3)

1. The risks of harm in admitting the applicant;

2. The seriousness of the acts that caused the inadmissibility; and

3. The importance of the applicant’s reason for seeking entry.

Both Department of State and the Foreign Affairs Manual specify that any nonimmigrant may request a waiver as long as his or her presence would not be detrimental to the United States. They provide that “while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” See 22 CFR 40.301 Foreign Affairs Manual (FAM) 40.301 N3. Furthermore, the Admissibility Review Office has confirmed that it will follow and adhere to Matter of Hranka in adjudicating requests for INA 212(d)(3) waivers.

In our client’s case, we addressed each of the factors laid out by Matter of Hranka emphasizing the importance of our client’s reason for entering the U.S.: namely, to be a caregiver and parent over her three U.S. citizen children as they obtain a U.S. education as is their birth right.

We emphasized that her husband would remain back in their country of residence while she and the children travel to the U.S. during the academic school year. We also showed that the family intended to return to Europe during the children’s summer vacations and outlined extensive ties to their country of residence including business operations, property ownership, familiar connections, and financial assets.

We highlighted a number of factors demonstrating the extenuating circumstances of our client’s initial overstay in the U.S., her good moral character and rehabilitation, and concrete proof that she poses no risk of harm should she be allowed to re-enter the U.S.

These factors included the political and economic turmoil in Eastern Europe that caused her to remain in the U.S. beyond the period of her authorized stay; her voluntary exit from the United States to continue a life with her husband back in Europe; her productive career as a nursing assistant since her departure from the U.S.; and her role as a loving mother to her U.S. citizen children together with her heightened concern for their education and future.

Based upon these factors, my client was approved for the 212(d)(3) non-immigrant waiver by the Admissibility Review Office in Washington D.C., and subsequently, for the B-1/B-2 Visitor Visa. These types of cases are difficult to get approved due to the tendency of US consular officers to attribute “immigrant intent” to non-immigrant visa applicants and consequently, refuse recommendation of the 212(d)(3) waiver.

Due to our extensive preparation of the waiver and steps taken to ensure its adequate consideration and review by the U.S. consulate, our client is now able to enter the United States with her three U.S. citizen children.

With careful planning, she will be able to remain lawfully in the U.S. while her children obtain a U.S. education during the academic school year.

BIA Precedent Decisions on Extreme Hardship for Purposes of the I-601 Waiver and I-601A Provisional Waiver

June 6, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Provided below is a list of precedent decisions by the Board of Immigration Appeals on “extreme hardship.” These decisions are provided as a reference to adjudicating officers of the I-601 and I-601A Provisional Waiver units.

All of the waivers prepared by my office, including the I-601 Waiver and I-601A Provisional Waiver, incorporate relevant case law that pertain to the specific facts of our client’s case.

We constantly monitor administrative, legal, and other changes to the waiver process so that our clients’ waiver applications can be maximized for success.

We begin the waiver preparation process by providing an “extreme hardship” worksheet to our clients. This worksheet helps us identify all of the hardships being suffered by the qualifying relative(s) and the families we represent. This is important because while any single hardship may not be considered “extreme” in and of itself, multiple hardships can “add up” to become “cumulative” and meet the “extreme hardship” standard.

We also provide a detailed checklist of supporting documents to our clients so that every hardship we analyze and discuss can be objectively proven to the satisfaction of the adjudicating waiver officer.

We have a long-standing relationship with a clinical psychologist who is well-versed in preparing psychological evaluations for purposes of the I-601 Waiver and I-601A Provisional Waiver and offers a discounted fee to our clients. Should you decide to get evaluated by your own psychologist, I provide a sample psychological evaluation template so that the evaluation can be drafted in a clear and effective manner by those unfamiliar with the extreme hardship waiver process.

Our completed waiver memos are typically 25-30 pages in length. To this, we add Exhibits to prove every relevant statement made in the waiver. I always forward a draft of the waiver to my clients for review before anything is submitted to the USCIS. We also prepare all of the USCIS forms, organize the Exhibits, and meticulously assemble the waiver package before submitting it to the USCIS on behalf of our clients.

BIA Decision	Summary of Decision on Extreme Hardship
Matter of Sangster, 11 I&N Dec. 309 (BIA 1965)	Economic detriment, in absence of other substantial equities, does not establish extreme hardship. No evidence that suitable employment was unavailable.
Matter of Saekow, 17 I&N Dec. 138 (BIA 1979)	In reference to applicant's suspension of deportation, the Immigration Judge determined that the respondent failed to demonstrate that his deportation would result in extreme hardship to himself or to a specified family member.
Matter of Pilch, 21 I&N Dec. 627 (BIA 1996)	• The term "extreme hardship" refers to hardship that is unusual or beyond that which would normally be expected upon deportation; the common results of deportation and exclusion are not sufficient to prove extreme hardship. • Emotional hardship caused by the severing of family and community ties is a common result of deportation and does not constitute extreme hardship. • To endure the hardship of either separation when it can be avoided by joining the applicant abroad, or of relocation when it can be avoided by remaining in the United States, is a matter of choice and not the result of removal or inadmissibility.
Matter of Piggott, 15 I&N Dec. 129 (BIA 1974)	Immigration Judge finding that the respondents would not be able to provide for their own necessities in Antigua and that their children would suffer as a result of the parents' inability to provide them with proper food, living facilities, and education in that country. Youngest child has rheumatic fever. She is being treated in the US, and equal medical is not available in Antigua. Extreme hardship requirement met.
Matter of Ngai, 19 I&N Dec. 245 (Comm. 1984)	The approval of an application for a waiver pursuant to section 212(h) of the INA is dependent in part upon showing of extreme hardship, and thus only in cases of great actual or prospective injury to the qualifying family member will the bar be removed.
Matter of Louie, 10 I&N Dec. 223 (BIA 1963)	Elderly US Citizen father with no other relatives in the US. Respondent takes him to weekly doctors' appointments. In view of the father's advanced age and physical condition it would be extremely harsh, to both the respondent and his father, to deport the respondent from the US. Extreme hardship met.
Matter of Lopez-Monzon, 17 I&N Dec. 280 (Comm 1979)	• Eligibility under section 212(i) of the INA to apply for a waiver of grounds of excludability is limited to aliens who are spouses, parents or children of US citizens or Lawful Permanent Residents. Congressional intent was to provide for the unification of families and avoid the hardship of separation. • U.S. Citizen child did not reside in the US. The father (who resided in Guatemala) had custody of the child. No evidence was presented to indicate applicant would obtain custody of the child and no persuasive evidence that the applicant intended to bring the child to reside in the US. Approval of the waiver would not have reunited a family; favorable exercise of discretion was not granted.
Matter of Loo, 15 I&N Dec. 601 (BIA 1976)	Applicant has 25 years residence in the US, a Lawful Permanent Resident daughter, and a small investment in a US business in which he was employed. Extreme hardship met.
Matter of Liao, 11 I&N Dec. 113 (BIA 1965)	Hardship claim of fear of persecution and diminished employment opportunities. Applicant did not establish that his deportation would result in extreme hardship because he refused to return to that country after completing the program of military training for which he entered the US and expressed political views which are not looked upon with favor by the Nationalist Government of China on Formosa.
Matter of lge, 20 I&N Dec. 880 (BIA 1994)	Assuming a United States citizen child would not suffer extreme hardship if he accompanies his parent abroad, any hardship the child might face if left in the United States is the result of parental choice, not of the parent's deportation.
Matter of Leon, 10 I&N Dec. 274 (BIA 1963)	Respondent has US military service with a service connected disability (30% ), is a US high school graduate, employed, and most of his adult years were spent in the US. Earning ability has been impaired by the service connected disability. Extreme hardship met.
Matter of Kojoory, 12 I&N Dec. 215 (BIA 1967)	Extreme hardship not established in relation to applicant's claim of fear of persecution if returned to Iran, limited economic opportunities, lack of opportunities in his own field, and difficulty adjusting to the standard of living.
Matter of Kim, 15 I&N Dec. 88 (BIA 1974)	Suspension of deportation under section 244(a)(1) of the INA based on 7 years physical presence in the US will not be granted on a claim of extreme hardship, where the only facts presented tended to show better economic and educational opportunities for her US citizen children in the US than in Korea.
Matter of H-, 14 I&N Dec. 185 (RC 1972) - sec. 212(h)	Extreme hardship within the meaning of section 212(h) of the INA is established where the applicant's spouse is 81 years old and has already endured a 15-year exile from the US to reside with the applicant in Mexico. The applicant established complete reformation from the activities that rendered her excludable and the stability between her US Citizen spouse was satisfactorily demonstrated; Therefore, a waiver pursuant to 212(h) was granted.
Matter of Gibson, 16 I&N Dec. 58 (BIA 1976)	Even though the alien meets the physical presence and Good Moral Character requirements of the statute, suspension of deportation was ordered denied because economic detriment which may result from deportation does not meet the test of extreme hardship within the contemplation of section 244(a)(1) of the INA. Alien was employed as a custodian and should have no difficulty in finding suitable employment abroad. No relatives in the US.
Matter of Da Silva, 217 I&N Dec. 288 (Comm 1979)	• A discretionary decision must be based on the weight factors present in the case, both adverse and favorable. Questionable factors should not be considered at all, or should be resolved in favor of the applicant. • A waiver application under section 212(i) of the INA will be approved in the interest of family reunification where the requisite relationship exists and the favorable factors outweigh the unfavorable factors.
Matter of Chumpitazi, 16 I&N Dec. 629 (BIA 1978)	The loss of job and the financial loss incurred is not "extreme hardship" within the meaning of section 211 of the INA, despite a 11-year stay in the US.
Matter of Cervantes -Gonzalez, 22 I&N Dec. 560 (BIA 1996)	Outlines hardship factors to consider in determining whether an alien has established extreme hardship pursuant to section 212(i) of the INA.
Matter of Anderson 16 I&N Dec. 596 (BIA 1978)	While political and economic conditions in an alien's homeland are relevant factors in determining extreme hardship under section 244(a)(1) of the INA, they do not justify a grant of relief unless other factors such as advanced age, severe illness, family. ties, etc. combine with economic detriment to make deportation extremely hard on the alien or the citizen or permanent resident members of his family.
Matter of Alonzo, 17 I&N Dec. 292 (Comm 1979)	• The birth of a US Citizen child, whether or not born during a lawful stay of the parents in the US, is a favorable factor and must accorded considerable weight in the adjudication of an application for the relief of a waiver of grounds of excludability under section 212(i) of the INA. • The section 212(i) waiver should be granted in the exercise of discretion, where favorable factors are present, and there is an absence of countervailing adverse factors. • No statutory or other requirement that extreme hardship be shown in a section 212(i) waiver case. • Applicant sought waiver of excludability for obtaining visas by fraud and misrepresentation. The violation was not held as an adverse factor action because it was the violation for which the alien seeks to be forgiven.
Matter of Uy, 11 I&N Dec. 159 (BIA 1965)	Applicant did not establish his deportation would result in extreme hardship, merely because he would suffer some economic hardship due to limited opportunities in his field of training.

Tips for Arguing Financial Hardship in I-601 “Extreme Hardship” Waiver and I-601A Provisional Waiver Cases

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

The AILA National Benefits Center Committee recently provided tips on establishing that a U.S. citizen spouse would suffer financial hardship in an I-601A, provisional unlawful presence waiver case. It should be noted that these tips also generally apply when arguing financial hardship in I-601 “extreme hardship” waiver cases.

Demonstrating that a U.S. citizen (USC) spouse would suffer financial hardship can help support a provisional unlawful presence waiver application (Form I-601A). The applicant must show that the USC spouse will not have the income to support him/herself or close family members as a result of the applicant’s departure from the U.S. or if the USC were to accompany the applicant to his or her home country.

It is critical that the applicant provide clear documentary evidence to substantiate a claim of extreme financial hardship.

Below are recommendations on how to present a claim of financial hardship:

Compare monthly income against expenses. Do not rely on USCIS to sort through the couple’s income and expenses for you. Itemize the monthly expenses and all sources of income and explain how the USC would not be able to cover all fixed expenses without the support of the applicant. Be sure to include supporting documentation, such as billing/credit card statements, receipts, paystubs, and tax returns.
Do not rely on recently acquired large expenses that could have been avoided. A reviewing officer may not be persuaded by the potential of a US Citizen (“USC”) losing their home if it was purchased recently and relied partially or wholly on the applicant’s U.S.-based income.
Show additional expenses related to raising children without the applicant’s care. It may not be sufficient to simply state that the applicant’s absence would result in a burden to the USC because the USC would be solely responsible for childcare. Explain if and why alternatives such as a nanny, daycare, or after school care are either not available or are insufficient. Document why the USC cannot afford the expense of childcare alternatives and address why other family members cannot help with childcare. Also address why the children cannot go with the applicant to the foreign country if he or she is their primary caretaker. This is number crunching at its finest; you must closely weigh all sides to the financial argument.
Do not rely on expenses that are not considered “basic necessities.” USCIS officers may not be convinced if the household expenses include items such as cable television; dining out, hotels, vacations, private school tuition, high cell phone bills, electronics, gym memberships, etc.
Explain the additional financial burden to the USC to support two households. It may be helpful to show the extra financial burden that would result from helping to maintain a household for the immigrant abroad as well as a household for the family in the U.S. Document the typical expenses the applicant would have in the foreign country (rent, utilities, transportation, etc.) and explain why family members in the home country would not be able to house the applicant. Also explain why the applicant would be unable to support him/herself, for example a lack of employment opportunities, lack of skills or education, etc.
Address why the USC would be unable to find work abroad. Though the USC spouse will of course have to give up his or her job if forced to relocate to the applicant’s home country, it might not be viewed as “extreme” hardship if the USC could find work in another field. Discuss the challenges the USC may face finding work abroad given language barriers, physical limitations, and financial needs and provide evidence to support your claim. For example, if the USC is a mechanical engineer who suffers from severe back problems, an argument could be made that she will have difficulty finding work because she does not have the language skills to use the necessary technical words and is unable to perform physical labor because of her back problems. This would need to be supported by medical records and recent job postings in the foreign country that describe the necessary skills for the position.
Review all receipts and financial records before filing. Carefully analyze all supporting documentation prior to filing. It is very difficult to respond to a Request for Evidence that points to documents that undermine your arguments.

I provide all of my I-601, I-601A, I-212, and 212(d)(3) waiver clients with extremely detailed Waiver Worksheets customized to their particular case type. The Waiver Worksheets contain a comprehensive list of questions for my clients to answer. It also contains a full checklist of supporting documents I recommend they gather to be used in support of their waiver application.

This process helps me identify all of the relevant hardship and persuasive factors to be discussed in their waiver, including a mathematical calculation of financial hardships and the impact separation (or relocation) caused by inadmissibility would have upon the qualifying relative and his/her immediate family.

As the above tips show, it is crucial that each and every hardship be analyzed in minute detail and that the impact on extreme hardship discussed in an organized, methodical, and comprehensive manner.

I-601 Extreme Hardship Waiver Approved by AAO for 10 Year Unlawful Presence Bar

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

I-601 Waiver Legal News

The applicant is a native and citizen of India 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), 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 seeking readmission within 10 years of his last departure from the United States.

The applicant entered the United States with a valid C1/D nonimmigrant visa in October 2003 and remained beyond the period of authorized stay. The applicant did not depart the United States until March 2008. The applicant is therefore inadmissible under section 212(a)(9)(B)(i)(II) of the Act for having been unlawfully present in the United States for more than one year.

The applicant sought a waiver of inadmissibility in order to reside in the United States with his U.S. citizen spouse and child. The field office director found that the applicant failed to establish that extreme hardship would be imposed on a qualifying relative and denied the Application for Waiver of Grounds of Inadmissibility (Form 1-601) accordingly.

On appeal, the AAO determined that the applicant had failed to establish that extreme hardship would be imposed on a qualifying relative. The appeal was subsequently dismissed.

On motion, the prior decision of the AAO was withdrawn and the I-601 Extreme Hardship Waiver approved.

Section 212( a )(9) 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-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year … 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.

(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 …

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. The applicant’s U.S. citizen spouse is the only qualifying relative in this case. Hardship to the applicant or their child, born in 2012, can be considered only insofar as it results in hardship to a qualifying relative. If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

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

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

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

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

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

This case is useful to examine in what the applicant initially did WRONG when preparing their I-601 waiver application:

The I-601 waiver and supporting documentation submitted failed to specify the applicant’s spouse’s medical condition, the short and long-term treatment plan, the severity of the situation and what hardships the applicant’s spouse would experience were her husband be unable to assist her with the care of their child.
As for the emotional hardship referenced, the I-601 waiver and supporting documentation failed to establish that said hardships were beyond the normal hardships associated when a spouse relocates abroad due to inadmissibility.
With respect to the applicant’s spouse’s assertions that she would experience financial hardship were her husband to relocate abroad, no documentation was provided establishing the applicant’s spouse’s expenses and assets and liabilities to establish that the applicant’s relocation would cause his wife financial hardship.
The waiver and supporting documentation failed to establish that the applicant’s spouse would be unable to properly care for herself and her child while continuing her work as a physician.
Alternatively, it was not established that the applicant would be unable to obtain gainful employment abroad that would permit him to assist his wife financially should the need arise.
Finally, the applicant’s spouse had a support network in the United States, including her parents and sibling, and it was not established that the applicant’s spouse’s relatives would be unable to provide needed assistance to the applicant’s spouse.

On motion, counsel effectively addressed the issues raised by the AAO:

In a declaration the applicant’s spouse details that she is going through turmoil and anguish knowing that she and her child may be separated from the applicant for a ten-year period.
She explains that as a physician, her career will be in jeopardy if she shows any evidence of mental or physical anguish.
She contends that at times she has been so distraught at the idea of her husband relocating abroad that she has had to fight back tears while at work.
The applicant’s spouse further asserts that she has no support to help take care of her daughter as her parents are old and suffer from many ailments and the rest of her family does not live close by.
Moreover, the applicant’s spouse maintains that she and the applicant work part-time to ensure that one of them is with their daughter as much as possible and a change in that arrangement would cause her and her child hardship.
In support, counsel re-submitted an evaluation from a doctor that states that the applicant’s spouse’s anxiety and depression are a direct result of the circumstances surrounding her husband’s case.
The doctor concludes that were the applicant to re-locate abroad while his spouse remains in the United States, the applicant’s spouse will slip into a protracted depression.
The applicant’s spouse’s pastors have also provided letters outlining the hardships the applicant’s spouse and child would face were the applicant to re-locate abroad, including emotional turmoil and day to day hardships.
Moreover, numerous letters have been provided from the applicant’s friends outlining the hardships the applicant’s family will face without the applicant’s daily presence.
Finally, counsel submitted financial documentation establishing the applicant’s and his spouse’s income and expenses and noting that due to business losses, the applicant’s spouse may not be able to cover all the family expenses without her husband’s financial support.

All this thus established on motion that the applicant’s spouse would experience extreme hardship were she to remain in the United States while her husband relocates abroad as a result of his inadmissibility.

However, the grant or denial of the waiver does not turn only on the issue of the meaning of “extreme hardship.” It also hinges on the discretion of the Secretary and pursuant to such terms, conditions and procedures as she may by regulations prescribe. In discretionary matters, the alien bears the burden of proving eligibility in terms of equities in the United States which are not outweighed by adverse factors. See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957).

In evaluating whether 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). See Matter of Mendez-Moralez,”-21 i&N bee. 296, 301 (BIA 1996).

The AAO must then balance 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).

In this case, the favorable factors are:

the extreme hardship the applicant’s U.S. citizen spouse and child would face if the applicant were to relocate to India, regardless of whether they accompanied the applicant or stayed in the United States;
community ties;
support letters from the church and friends;
the payment of taxes;
the apparent lack of a criminal record;
financial contributions to the church;
and the applipant’ s obtainment of an F -1 Visa and lawful entry after having accrued unlawful presence in the United States.

The unfavorable factors in this matter are the applicant’s periods of unlawful presence in the United States.

Although the violations committed by the applicant were considered serious in nature, the AAO found that the applicant has established that the favorable factors in her application outweigh the unfavorable factors. Therefore, a favorable exercise of the Secretary’s discretion was considered warranted and the I-601 extreme hardship waiver approved.

Client Approval: I-601A Provisional Waiver Approved within 3 Months for Mexican Client

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

We recently received approval of the I-601A Provisional Waiver that we prepared and submitted for a Mexican applicant married to a U.S. citizen husband within 3 months of its submission to the USCIS.

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 25 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.

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 Mexican national who entered the U.S. without inspection at the age of 19 to find a more secure life in the United States. Since entering the U.S., she learned English, obtained gainful employment, and has remained law-abiding to the present day. She met her U.S. citizen husband, fell in love with him, and had a son together.

The favorable factors of this case discussed in detail in our I-601A Provisional Waiver application include:

The medical condition of the couple’s U.S. citizen son who suffers from anemia.
The medical condition of the U.S. citizen husband who suffers from Generalized Anxiety Disorder, partly as a result of the burden he has taken on to financially support his younger brother and his parents.
The financial crisis that this family is undergoing, including declaration of bankruptcy by the U.S. citizen husband’s parents. The parents subsequently rely upon the joint-income of their son and daughter-in-law (the U.S. citizen husband and his Mexican wife, respectively) who work to support the parents, themselves, their son, as well as the U.S. citizen husband’s younger brother.
The financial strain placed upon the U.S. citizen husband as he and his wife struggle to pay his parent’s mortgage for the family home where the entire family all reside
The employer-provided health insurance that the U.S. citizen husband and their infant son rely on to receive treatment for their medical conditions, and its termination should he be forced to re-locate to Mexico to be with his wife
The extensive family ties of the U.S. citizen husband in the U.S. including three brothers, two sisters, and an extended family of cousins, aunts, and uncles, all who reside in close proximity with each other.
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 Mexico

This case is an important one because it demonstrates that cumulative hardships and individual circumstances can “add up” to meet the extreme hardship standard. While any single hardship in this case may not be considered “extreme” in and of itself, it was only by meticulously demonstrating how they interrelate with each other and create “downward spiral of expanding and worsening hardships” (my description) that we obtained approval of this I-601A Provisional Waiver.

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