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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

Tips for Arguing Financial Hardship in I-601A Waiver Cases

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.

Filed Under: 601 Waiver News, Blog, Entered Without Inspection, Extreme Hardship, I-601 Waivers, I-601A Provisional Waiver, Inadmissibility, Overstay, Spouse Visa, Unlawful Presence, USCIS Filing Tips

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

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

I-601A Provisional Waiver Processing In-Depth

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

NBC Background

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

Statistics

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

23,949 applications sent to Lockbox

17,996 applications accepted by Lockbox

5,953 application rejected by the Lockbox

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

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

The NBC has issued the following decisions:

3,497 approvals (59%)

2,292 denials (39%)

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

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

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

[Read more…]

Filed Under: 601 Waiver News, Blog, Crime of Moral Turpitude, Criminal Convictions, Extreme Hardship, I-601 Waivers, I-601A Provisional Waiver, Inadmissibility, Overstay, Petty Offense Exception, Unlawful Presence, USCIS Filing Tips

I-601A Provisional Waiver Update and FOIA Filing Tips

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

I-601A Provisional Extreme Hardship Waiver Filing Tips and Update

According to the American Immigration Lawyers Association Liaison, the USCIS has denied applications for provisional unlawful presence waivers (Form I-601A) where there is any criminal issue (even if it would not trigger inadmissibility) or where there are allegations that a false name or date of birth was used when the applicant was apprehended for attempting to enter without inspection. USCIS has denied these applications on the grounds that it has “reason to believe” the applicant may be inadmissible for reasons other than unlawful presence.

According to a recent update by Robert Blackwood, Assistant Section Director for Adjudications at the National Benefits Center, the NBC stopped issuing “reason to believe” denials as of six weeks ago.  It has suspended adjudication of cases where this issue is present while the Dept. of State and USCIS re-consider their current policy.  During this time, cases that involve a a potential “reason to believe” isssue are being held in abeyance, with no action taken on the case.  There are currently 1300 I-601A waiver applications affected by this issue and they will not be adjudicated until there is further guidance on the “reason to believe” policy.

Nevertheless, given this very broad interpretation of the “reason to believe” standard thus far, it is extremely important that all applicants be absolutely sure about their immigration and criminal history before proceeding with the I-601A Provisional Waiver application.

1. Immigration History: You must be cognizant of every lawful and unlawful entry into the United States, whether or not you were caught. The USCIS conducts a thorough background check and can and will obtain records of attempted border crossings, including a voluntary return or “catch and release.” Go over your immigration history with an experienced immigration attorney knowledgeable on waivers and grounds of inadmissibility before submitting the I-601A Provisional Waiver.

2. Criminal History: “Arrest” does not always include “jail.” USCIS needs to know whether you were ever arrested, cited, charged, indicted, convicted, fined, or imprisoned for violating any law or ordinance in the U.S. or anywhere else in the world, regardless of whether the case was dismissed, including traffic violations.

3. Department of Homeland Security Freedom of Information Act Requests: If you cannot remember the exact details of your immigration history, consider filing Freedom of Information Act (FOIA) requests with the various DHS agencies. In any FOIA request is it helpful to be specific about the documentation and information you are seeking and to provide all possible variances of your name including phonetic spellings to facilitate the request. If the FOIA response indicates that no records were located, consider filing a FOIA appeal which may produce better results.

4. Department of State FOIA Request: If you have ever been denied a visa and do not have records showing the reason(s) for the denial, consider filing a FOIA request with the Department of State. Remember to obtain third party authorizations from any person that may have been a party to the interview or application. DOS may limit the information it will provide, but information as to all documents the applicant submitted are discoverable.

5. FBI Background Check: If you have ever been arrested or detained by law enforcement but do not have records pertaining to your case, obtain a FBI criminal history summary. Please note, however, that the FBI records should include incidents at the border, but might not.

6. Police Reports and Court Records: If the FBI background check reveals a criminal issue or “hit,” you must obtain the police reports and any court records relating to the incident. Arrest records may be obtained from the local law enforcement agency where the arrest was made. Court records can be obtained from the court where the case was heard or dismissed after some sort of pre-trial action.

7. Traffic Records: If you cannot remember the details or have records of possible traffic violations, traffic records can be obtained from any state DMV office, and should include citations from other states, unless the client had a driver license from another state. Traffic records may include citations for driving without a license, providing a false driver’s license or name, or even reckless driving and DUI.

[Read more…]

Filed Under: 601 Waiver News, Blog, Extreme Hardship, Fraud, I-601 Waivers, I-601A Provisional Waiver, Immigration Records, Inadmissibility, USCIS Filing Tips

I-601A Provisional Waiver

August 10, 2013 By Michael Cho Immigration Lawyer Leave a Comment

I601A Waiver

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

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

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

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

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

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

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

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

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

Driving Under the Influence (DUI)

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

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

The Petty Offense Exception

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

Traffic Violations

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

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

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

Filed Under: Blog, Criminal Convictions, Entered Without Inspection, Extreme Hardship, Fraud, I-601A Provisional Waiver, Inadmissibility, Overstay, Petty Offense Exception, Unlawful Presence, USCIS Filing Tips

USCIS Lockbox Filing Tip

June 23, 2013 By Michael Cho Immigration Lawyer Leave a Comment

Michael S Cho Immigration Lawyer

The USCIS Lockbox Facilities where immigration petitions are filed advises that exhibit tabs used by applicants are discarded before the filing reaches an officer for adjudication.  Additionally, colored page dividers are sometimes moved to the back of the filing before the file reaches an officer for adjudication.

If exhibits are critical to the petition, such as EB-1 cases or waivers, the lockbox recommends that applicants annotate each page of their supporting documentation with the exhibit number and page number at the bottom of the page (for example “Exhibit #, Page # of #”).

This helps ensure that adjudicating officer can easily refer to the appropriate documents and pages outlined in the petition. In addition, it may be helpful to cross reference the exhibits in the employer support letter, attorney brief, or other similar submissions. A master “Exhibit List” may also be helpful in organizing petitions with extensive supporting documentation.

Filed Under: Adjustment of Status, Blog, Fiance Visa, I-212 Waivers, I-601 Waivers, Spouse Visa, USCIS Filing Tips

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