Waiver Approvals - Page 4 of 9 - Smart Immigration Lawyer

I-601 Waiver Approved for U.S. Military Spouse Inadmissible due to Crimes Involving Moral Turpitude

February 16, 2016 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for the foreign wife of a member of the U.S. Armed Forces who is subject to a life-time bar from being admitted to the United States for convictions of two separate crimes involving moral turpitude under INA Section 212(a)(2)(A)(i)(I). The foreign wife was also convicted of driving under the influence of alcohol in a separate incident.

The U.S. citizen husband is an active member of the U.S. Armed Forces, works on base in the United States, and became separated from his foreign wife and U.S. citizen son after a finding of inadmissibility by the US embassy during his wife’s immigrant visa consular interview.

He contacted our office due to our 14+ year history of securing approval of I-601 and I-212 immigrant waivers in sensitive and critical situations such as this one.

Section 212(a)(2)(A) of the Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien was released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of the application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

The Board of Immigration Appeals (BIA) held in Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992), that:

[M]oral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.. ..In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

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

(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E).-The Attorney General [now the Secretary of Homeland Security, “Secretary”] may, in [her] discretion, waive the application of subparagraphs (A)(i)(I) … of subsection (a)(2) if-

(B) in the case of,an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it established to the satisfaction of the [Secretary] that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.

(2) the [Secretary], in [her] discretion, and pursuant to such terms, conditions and procedures as [she] may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.

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.

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

Immediately after this case was opened, we initiated our immigrant waiver preparation process.

We always provide a comprehensive waiver worksheet containing a thorough array of questions for our clients to answer about their lives. This allows us to “brainstorm” every relevant factor (such as medical, physical, psychological, financial, legal, or other hardships) that may apply. We then analyze each factor and decide upon the most effective way to present it to the USCIS in our waiver application.

Our waiver worksheet also contains a long checklist of supporting documents to gather and present based upon our experience with successful waiver applications submitted during the past 12+ years.

Overall, our waiver preparation process is constantly improved upon since we regularly prepare and submit winning immigrant waiver applications for clients who come from countries throughout the word. We are proud to receive multiple approvals on I-601, I-601A, I-212, and 212(d)(3) waiver applications filed on behalf of our clients every single month.

The favorable factors we highlighted in this I-601 Waiver case includes the following:

the U.S. citizen husband is a member of the U.S. Armed Forces who works on the maintenance and operation of sophisticated military vehicles. In my experience, spouses and immediate relatives of members of the U.S. Armed Forces are generally given preference on their waiver applications. However, it is still important to discuss the duties carried out by the member of the U.S. Armed Forces; their role in the defense of the interests of the United States; as well as how their ability to carry out their duties is impacted by the immigration-related consequences of separation (or re-location).
the U.S. citizen husband suffers from mood disorders and physical ailments that are documented to be worsening as a result of separation from his foreign wife and U.S. citizen son. He is a victim of verbal and physical abuse from childhood, and carries the emotional scars from the prior abuse to this day.
the U.S. citizen husband helps to care for his elderly mother, who is also victim of past domestic abuse. It would be emotionally traumatic to force him to choose between life with his family abroad at the cost of abandoning his mother who needs her son nearby.
the U.S. citizen husband is attempting to pay for two homes during this separation with his wife and son. The expenses involved in doing this (combined with travel to a foreign country to visit his family) is outstripping his income and causing severe financial hardship.
the U.S. citizen husband does not know the native language of his wife’s country of origin, would face difficulty obtaining appropriate psychological treatment in English there, and would have to resign from the U.S. military to re-locate abroad to be with his family. Being forced to resign from life-long service to the U.S. Armed Forces would aggravate his precious psychological state and worsen every aspect of his life.

Due to our efforts on behalf of this family, the I-601 Waiver application was approved and this family can soon reside together in the United States. The U.S. citizen husband can also continue his service to the United States Armed Forces and play an integral role in safe-guarding the lives of his fellow servicemen.

Client Approval: I-601A Provisional Waiver Approved for Honduran Spouse

February 13, 2016 By Michael Cho Immigration Lawyer Leave a Comment

We recently received approval of the I-601A Provisional Waiver that we prepared and submitted on behalf of a Honduran client who is married to his U.S. citizen spouse.

The 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 31 page waiver statement detailing relevant case law favorable to my client’s situation as well as the presenting the extreme medical, psychological, financial, and other hardships that compelled approval of our I-601A Provisional Waiver application;
an expert emphasis on the unique and favorable discretionary factors that applied to this case based on our 12+ years of preparing winning “extreme hardship” waivers on behalf of our clients; and
a comprehensive collection of organized exhibits to prove the extreme hardships and favorable discretionary factors being presented.

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

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

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

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

In this case, the applicant is a Honduran national who grew up in poverty, having lost both his parents at a young age and raised by his older sister. He later entered the U.S. to escape the abject poverty and unchecked crime and violence of his home country. He has worked productively in the U.S. upon his entrance to the country, has no criminal record whatsoever, and is the father of a U.S. citizen child who he raises together with his U.S. citizen wife.

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

U.S. citizen wife suffers from Type I Diabetes, a life-long condition carrying serious, potentially lethal consequences, if not properly treated or managed
Specific instances of our Honduran client having saved his U.S. citizen wife’s life as she slipped into a hypoglycemic coma due to an imbalance of sugar and insulin in her body
The U.S. citizen wife’s history of psychological disorders including Generalized Anxiety Disorder and Dysthymic Disorder
The vital financial support provided by our Honduran client to his U.S. citizen wife, without which she would be unable to pay her household and child-related expenses, make payments on her significant debt (including credit bills, home mortgage, and student debt), nor afford her medical expenses
The serious medical condition of the wife’s U.S. citizen grandparents, who she and her husband care for and watch over as best they can
In-depth research and discussion of the country conditions of Honduras and the variety of hardships and dangers likely to be faced by this family should they re-locate there
The close-knit and interrelated relationships between this extended family of wife, husband, daughter, and grandparents, that would lead to a spiral of psychological distress and medical risk upon four U.S. citizens should the Honduran husband not be allowed to remain in the U.S.

As a result of our efforts, the I-601A provisional waiver was approved. Our client will now be able to obtain U.S. lawful permanent resident status and more importantly, continue to play an integral role in caring for the well-being of his wife, daughter, and extended family.

I-601 Extreme Hardship Waiver Approved for Canadian Client Charged with Fraud – Misrepresentation

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

Our office recently obtained approval of the I-601 “Extreme Hardship” Waiver for a Canadian client found inadmissible for having attempted to procure an immigration benefit in the United States by fraud or willful misrepresentation of a material fact under INA Section 212(a)(6)(C)(i).

Our clients, a U.S. citizen wife and her Canadian husband, contacted me to prepare and submit the I-601 Application of Waiver of Grounds of Inadmissibility on their behalf, after the Canadian husband was denied for an immigrant visa at the US consulate in Canada.

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

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

Section 212(i) of the Act provides that:

The Attorney General [now the Secretary of Homeland Security (Secretary)] may, in the discretion of the Attorney General [Secretary], waive the application of clause (i) of subsection (a)(6)(C) in the case of an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.

A waiver of inadmissibility under section 212(i) of the Act is dependent on a showing that the bar to admission imposes extreme hardship on a qualifying relative, which includes the U.S. citizen or lawfully resident spouse or parent of the applicant. The applicant’s spouse is the only qualifying relative in this case. If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships. See, e.g.,Matter of Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (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).

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

The favorable factors we presented and proved in this case to obtain approval of the I-601 Waiver includes the following:

The U.S. citizen wife suffered severe psychiatric decompensation shortly after their first failed attempt to have her spouse from Canada immigrate to the United States. As a result of her hospitalization, her psychiatrist ordered a leave of absence from her work and career.
Loss of income from stopping work has forced the U.S. citizen wife to move in with her parents, who are elderly and infirm. The U.S. citizen wife provides daily living assistance to both her father and mother.
The U.S. citizen wife has a son from a former relationship. The son is suffering severe behavioral and emotional problems due to the close bond he has developed with his step-father and due to their on-going separation from one another.
The U.S. citizen wife shares joint-legal custody of her son with the biological father under a legal custody agreement. Her son’s father, who exercises regular visitation rights, would never allow their son to be re-located to Canada.
The U.S. citizen wife is becoming increasingly depressed, as she lost her home, her transportation, her good credit rating, as well as her ability to work. She requires her Canadian husband’s presence and support now more than never to survive in a rapidly deteriorating situation.
The Canadian husband has no criminal history, has worked productive in the financial services industry for more than two decades, and is a loving husband and father who has been an impeccable step-father and role model to his U.S. citizen step-son.

Some clients (and attorneys) mistakenly believe that extreme hardship can only established when the applicant comes from a “developing country.” We routinely obtain I-601 Waivers for clients who come from countries such as Canada, the United Kingdom, Japan, and other more “developed” countries throughout the world. We have particular expertise in demonstrating how the unique circumstances of our clients’ lives combine and interact to meet the threshold of “extreme hardship.” Just as importantly, we always go beyond the legalese and present our clients as people that the adjudicating officer can relate to.

As a result, our client was approved for the I-601 Waiver and can now obtain permanent residence in the U.S. to reside together with his family.

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

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

Our office received approval of both the I-601 Waiver (Application for Waiver of Grounds of Inadmissibility) and I-212 Waiver (Application for Permission to Reapply for Admission) for the Chinese spouse of a U.S. citizen husband.

Our client lawfully entered the U.S. on a B-1/B-2 visitor visa. She overstayed in the U.S. due to a misunderstanding of U.S. immigration laws related to the I-539 Application to Extend Non-Immigrant Status.

She was subsequently removed from the U.S. while attempting re-entry into the U.S.

Section 212(a)(9)(A)(i) and (ii) of the Immigration and National Act, as added by IIRAIRA Section 301, provides that foreign nationals who have been ordered removed may not be readmitted to the United States until they have stayed outside the U.S. for a specified period of time:

5 years for individuals removed through summary exclusion or through removal proceedings initiated upon the person’s arrival in the U.S.;
10 years for those otherwise ordered removed after a deportation hearing or whodeparted the United States while an order of removal was outstanding; and
20 years for a second or subsequent removal.

The I-212 waiver allows foreign nationals who wish to return to the U.S. prior to meeting the required amount of time outside the U.S. to file an application for permission to reapply pursuant to INA Section 212(a)(A)((iii).

In Matter of Tin, 14 I & N 371 (1973), and Matter of Lee, 17 I & N Dec. 275 (1978), the Board of Immigration Appeals established the standards to be considered in adjudicating applications for permission to reapply.

In Matter of Tin, the BIA stated that in determining whether consent to reapply for admission should be granted, all pertinent circumstances relating to the application should be considered including: 1. the basis for deportation; 2. recency of deportation; 3. applicant’s length of residence in the United States; 4. the applicant’s good moral character; 5. the applicant’s respect for law and order; 6. evidence of reformation and rehabilitation; 7. The applicant’s family responsibilities; 8. Any inadmissibility to the United States under other sections of law; 9. hardship involving the applicant and others; 10. the need for the applicant’s services in the United States; and 11. whether the applicant has an approved immigrant or nonimmigrant visa petition.

In Matter of Lee, the BIA stated that INA 212(a)(9)(A)(iii) was intended to be remedial rather than punitive, explaining that the factor of “recency of deportation” can only be considered when there is a finding of poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience.

Our client was also charged with fraud or willful misrepresentation under INA Section 212(a)(6)(C) of the Immigration and Nationality Act.

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

INA Section 212(i) of the Act provides that:

A waiver of inadmissibility under section 212(i) of the Act is dependent on a showing that the bar to admission imposes extreme hardship on a qualifying relative, which includes the U.S. citizen or lawfully resident spouse or parent of the applicant. The applicant’s spouse is the only qualifying relative in this case. If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

For practical purposes, when the I-601 “Extreme Hardship” waiver is filed together with the I-212 Waiver, preparing a winning I-601 waiver application (by demonstrating extreme hardship to the qualifying relative and presenting a situation that warrants favorable discretion by the adjudicating officer) allows the applicant to also meet the standard for approval of the I-212 waiver.

In other words, if your I-601 waiver is approved, then the I-212 waiver will generally be approved as well.

We drafted a comprehensive 24+ page waiver memorandum outlining the relevant case law favorable to my client’s situation. It also discussed in detail the extreme hardships the U.S. citizen husband is presently suffering from, and proved how they would worsen in the event of continued separation from his beloved wife. We also highlighted a variety persuasive factors that I believed warranted an exercise of favorable discretion on the part of the USCIS.

Some of the favorable factors in this case includes the following:

The U.S. citizen husband shares physical and joint legal custody over his children with his former partner. He would not be allowed to re-locate abroad with some of the children due to regular visitation rights exercised by the mother of the children. His U.S. citizen children would be emotionally and psychologically devastated should their father be forced to leave the U.S. to be with his wife. On the other hand, the U.S. citizen husband finds it increasingly difficult support his household alone given his deteriorating physical and psychological state.
The U.S. citizen husband’s monthly expenses continue to exceed his income. He also does not speak, read, or write Mandarin Chinese and would have limited employment-prospects if he located abroad to China to be with his wife.
The U.S. citizen husband is postponing much-needed surgery for a medical conditions because he cannot afford to stop working and fall deeper into debt. He also needs his wife by his side to help care for his children (and his elderly U.S. citizen mother) during his period of recuperation post-surgery.

Due to our efforts, our client was approved for both the I-212 waiver and I-601 waiver in less than 5 months after submission to the USCIS. This family can now lawfully reside together inside the United States.

Client Approval: I-601 Fraud/Misrepresentation Waiver Approved for Nigerian Client

November 30, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our office recently received approval for the I-601 Waiver for a client found inadmissible to the United States due to fraud/misrepresentation.

The applicant misstated his marital status and the number of children he has in an immigration application, and was subsequently found inadmissible under INA Section 212(a)(6)(C) when he was forthcoming with the facts during his visa interview.

The married couple then contacted our law firm to prepare the I-601 Application for Waiver of Grounds of Inadmissibility on their behalf.

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

INA Section 212(i) of the Act provides that:

A waiver of inadmissibility under section 212(i) of the Act is dependent on a showing that the bar to admission imposes extreme hardship on a qualifying relative, which includes the U.S. citizen or lawfully resident spouse or parent of the applicant. The applicant’s spouse is the only qualifying relative in this case. If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

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.

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships. See, e.g.,Matter of Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (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. Salcido-Salcido v. INS, 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 totality of the circumstances is considered when determining whether denial of admission would result in extreme hardship to a qualifying relative.

The favorable factors we presented to secure approval of the I-601 waiver in our client’s case includes the following:

The U.S. citizen spouse suffers from psychological and physical disorders, and has been diagnosed with obesity. The psychological stress, anxiety, and depression caused by her immigration situation leads to a vicious cycle of overeating, which further destabilizes her psychological and physical health, and in turn leads to increased psychological stress and anxiety.
The U.S. citizen spouse lives with her mother and brother, both of whom suffer from serious illnesses and rely upon the U.S. citizen spouse for day-to-day help and financial support.
The U.S. citizen spouse is in severe debt, on the verge of bankruptcy, with monthly expenses that far outstrip her monthly income.
The foreign spouse (the waiver applicant) has no criminal record whatsoever except for the single charge of immigration fraud/misrepresentation, for which he was forthcoming and completely truthful during his visa interview
Country conditions of Nigeria (where the foreign spouse is originally from and resides in) show ethnic, sectarian, and tribal conflicts throughout the country; rampant crime with largely ineffective law enforcement; and travel through large swaths of the countryside limited for U.S. embassy employees due to killings, kidnappings, and violent crime.
U.S. Bureau of Consular Affairs describes Nigeria’s medical facilities as being in poor condition, with inadequately trained nursing staff, diagnostic and treatment equipment often poorly maintained, and many medicines unavailable.
The CIA World Factbook states that 62% of the Nigerian population lives in extreme poverty, living on less than $1 per hour

It is important that the attorney retained to prepare the I-601 waiver or the I-601A provisional waiver be familiar with the conditions of the country where the waiver applicant is from. Our office has prepared I-601 “Extreme Hardship” Waivers and I-601A Provisional Waivers for clients who come from countries throughout the world (including but not limited to, Argentina, Australia, Austria, Brazil, China, Costa Rica, Colombia, Ecuador, France, Japan, Germany, India, Jamaica, Latvia, Mexico, Nigeria, Morocco, Pakistan, Romania, Russia, South Korea, Thailand, Ukraine, United Kingdom, and Vietnam).

Consequently, we have in-depth experience not only researching and presenting a country’s conditions to prove extreme hardship, but precisely showing how our clients’ lives are and would be affected by these conditions.

As a result of our 25-page I-601 waiver application and numerous Exhibits attached to prove the statements made in our “extreme hardship” waiver, our client’s waiver application was approved. This family in need may now reside together in the U.S. and work together to deal with this difficult period in their lives.

Client Approval: I-601 Waiver Approved under INA 212(a)(3)(D)(iv) for Community Party Membership

November 27, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our office recently received approval for the I-601 Application for Waiver of Grounds of Inadmissibility for a Chinese national deemed inadmissible pursuant to INA Section 212(a)(3)(D). Our client is the Chinese father of a U.S. citizen daughter who was found inadmissible at his adjustment of status interview due to membership in a Community Party. His wife, on the other hand, was subsequently approved for U.S. lawful permanent residence.

Our office was then contacted by his U.S. citizen daughter to prepare an urgently needed I-601 waiver so that her father could be allowed to remain in the United States and stay united with his wife and family.

INA Section 212(a)(3)(D) deems inadmissible any immigrant who is or has been a member of or affiliated with the Community or any other totalitarian party, domestic, or foreign.

Three exceptions apply:

INA Section 212 (a)(D)(ii) Exception for involuntary membership. – Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.

INA Section 212 (a)(D)(iii) Exception for past membership. – Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that-

(I) the membership or affiliation terminated at least-

(aa) 2 years before the date of such application, or

(bb) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and

(II) the alien is not a threat to the security of the United States.

INA Section 212 (a)(D)(iv) Exception for close family members. – The Attorney General may, in the Attorney General’s discretion, waive the application of clause (i) in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States.

There is also a judicially created exception that states that an alien is admissible if his or her membership is “not meaningful.” The U.S. Supreme Court elaborates that membership is “not meaningful” if the alien lacks “commitment to the political and ideological convictions of communism.” Rowoldt v. Perfetto, 355 U.S. 115 (1957).

As we do with all of our waiver cases in which more than one exception or waiver applies, we presented evidence that our applicant meets the legal standard for every relevant and applicable exception and waiver. While this is significantly more work for us and not standard practice for some attorneys, we always do our utmost to maximize the probability of approval for our clients at no additional cost.

Specifically, we presented compelling evidence that our client’s membership in the Community Party was involuntary and “not meaningful.” Such evidence included affidavits from former colleagues corroborating how meaningless our client’s membership in the Community Party was.

We also stressed that our client’s membership in the Communist Party was primarily maintained to ensure job security. We cited objective academic research that found that membership in the Communist Party had a significant impact on increasing upward mobility in employment, and on decreasing the risk of downward mobility or discharge. According to the research we cited, overall, Party Membership accounted for a swing of 30% in the likelihood of a party member experiencing upward or downward mobility, compared to a non-party member (with the non-party member bearing the greater risk of negative employment outcome).

We also engaged in an in-depth discussion of how the admission of our client serves the humanitarian purposes of the United States government; promotes the principle of family unity with his U.S. lawful permanent resident wife and U.S. citizen daughter (and U.S. citizen grand-daughter); and that it is in the public interest of the United States to allow our client to be admitted for U.S. lawful permanent residence.

This discussion also included a comprehensive illustration of the extreme hardships that our client’s lawful permanent resident wife would suffer should she be separated from her husband of 41+ years (or alternatively, forced to return to China and be separated from her U.S. citizen daughter and grand-daughter).

Based on our expedited preparation of the waiver and filing, the I-601 waiver was approved within 1 month of submission to the USCIS. This tight-knit family will now be allowed to lawfully settle together in the United States.

Client Approval: I-601A Provisional Waiver Approved for Peruvian with Multiple DUI Convictions

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

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

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

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

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

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

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

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

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

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

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

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

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

Client Approval: I-601 Waiver Approved for Marijuana Possession Conviction

November 10, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our law firm and our clients were pleased to receive two separate “extreme hardship” immigrant waiver approvals in one day.

The first waiver approval was for a I-601 Application for Waiver of Inadmissibility for the K-1 fiance of a U.S. citizen (from Japan) who was deemed inadmissible for life due to a conviction for simple possession of marijuana.

The second waiver approval received the same day was for a I-601A Application for Provisional Unlawful Presence Waiver for the Peruvian husband of a U.S. citizen spouse.

I-601 “Extreme Hardship” Waiver Approved for K-1 Fiance of U.S. Citizen Deemed Inadmissible for Conviction of Possession of Marijuana

INA 212(a)(2)(A)(i)(II) deems inadmissible those convicted of, or who admit to having committed, or who admit to committing acts which constitute the essential elements of a a violation or conspiracy to violate any law or regulation of a State, the United States or a foreign country relating to a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).

An immigrant waiver is available pursuant to INA 212(h)(1)(A) if

the alien’s admission to the United States would not be contrary to the national welfare, safety, or security of the United States;
alien has been rehabilitated;
the inadmissible act occurred more than 15 years before the visa application; and
the violation relates to a single offense of simple possession of 30 grams or less of marijuana.

Alternatively, an immigrant waiver is available pursuant to INA 212(h)(1)(B) if:

the alien is the spouse, parent, son, or daughter to a U.S. citizen or U.S. lawful permanent resident;
in the opinion of the Secretary of Homeland Security, refusing the waiver would result in extreme hardship to the qualifying U.S. citizen or U.S. lawful permanent resident relative; and
the violation relates to a single offense of simple possession of 30 grams or less of marijuana.

Furthermore, even if the applicant demonstrates that he merits a grant of discretion under the waiver, he must also establish that he meets the terms, conditions, and procedures of the regulations promulgated by the Attorney General. INA 212(h)(2).

The applicant is in our case has long-standing ties to the United States, where he met his U.S. citizen fiancee with whom he has been in a relationship for over 10 years.

Our client attended boarding school in the United States, graduated from a U.S. university, and has no other criminal conviction aside from a single conviction for possession of marijuana for which he completed all court-imposed requirements.

We first prepared, filed, and obtained approval of the I-129F Petition for Alien Fiancee. As with all of our K-1 fiancee visa cases, we provided our clients with a detailed letter going over the process from start to finish. We also provided a checklist of supporting documents to gather and provide to ensure approval of their K-1 fiancee visa petition.

We meticulously prepared every USCIS form needed, assembled the initial USCIS petition, and expeditiously submitted the petition to the USCIS on behalf of our clients.

As a result of our efforts up-front, we were able to obtain approval of the I-129F Petition for Alien Fiancee from the USCIS within 2 months of submission.

In the meantime, we prepared the I-601 Application for Waiver of Grounds of Inadmissibility pursuant to INA 212(h)(1)(B) by demonstrating extreme hardship to our client’s U.S. citizen fiancee and highlighting every favorable discretionary factor from our clients’ lives.

A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

Legal Analysis of Extreme Hardship

Extreme hardship is “not a definable term of fixed and inflexible content or meaning, but necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964 ).

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

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

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

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

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

Our Client’s Extreme Hardship and Discretionary Factors

The factors discussed and documented (with ample objective evidence) in the I-601 “Extreme Hardship” waiver prepared for our client includes:

the U.S. citizen fiancee suffering from Generalized Anxiety Disorder and Dysthymic Disorder, including being prescribed anti-anxiety medication to alleviate her symptoms;
the U.S. citizen fiancee suffering from medical issues that elevates her risk of cancer (requiring regular check-ups) and makes it medically advisable to start a family sooner rather than later;
the U.S. citizen fiancee’s foreseeable need to help financially support her U.S. citizen father, who will soon no longer able to work due to back pain
the U.S. citizen fiancee’s special duties as an educator of young children, and the impairment of these duties due to the psychological symptoms of her disorders (made worse by her continued separation from her fiance and related stress factors)
documented psychological and financial hardships suffered by the U.S. citizen fiancee (and her U.S. citizen mother) during her prior periods of residence in her fiance’s home country
the country conditions of her fiance’s home country including persistent gender inequality and the prohibitive cost of living in the capital city (and its resultant impact upon the financial health of the U.S. citizen fiancee and her ability to visit her immediate family in the U.S.)
the good moral character, rehabilitation, and other favorable discretionary factors in the life of the waiver applicant

As a result of our effort, our client was approved for the I-601 waiver and will be allowed to enter the U.S. to marry his beloved fiancee and begin a life together as a married couple.

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