Waiver Approvals - Page 5 of 9 - Smart Immigration Lawyer

Client Approval: I-601 Waiver Approved for K-1 Fiancee Subject to 10 Year Unlawful Presence Bar

October 21, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the K-1 fiancée visa and I-601 “unlawful presence” waiver for the Thai fiancée of a U.S. citizen. She had previously entered the U.S. as a non-immigrant student but overstayed her authorized period of stay by over one year before voluntarily departing back to her home country.

She subsequently met and fell in love with her U.S. citizen fiancé and the couple contacted my office to obtain my legal assistance.

We first provided the couple with a comprehensive letter going over every detail of the K-1 fiancée visa process, including preparation and submission of the initial I-129F petition to the USCIS as well as consular processing at the US embassy abroad.

We also provided our clients with an abbreviated checklist of supporting documents (both mandatory and optional) to gather in support of the I-129F Petition for Alien Fiancée and return to our office.

We meticulously prepared every USCIS application form on behalf of our clients; assembled the petition; submitted it to the USCIS on their behalf; then provided our clients with further guidelines on preparing for the consular interview to maximize the probability of K-1 visa approval at the US embassy interview.

Once the K-1 fiancee visa petition was submitted to the USCIS, we began work on preparing the I-601 “Extreme Hardship” waiver to overcome the 10 year “presence” bar (under INA 212(a)(9)(B)(i)(II)) we knew the Thai fiancée is subject to.

We always work on waivers while the USCIS visa petition is pending so that no time is lost and the waiver can be submitted as soon as the applicant located abroad is eligible (typically after being deemed inadmissible at the U.S. consular interview).

INA Section 212(a)(9)(B)(v) provides that a waiver for INA Section 212(a)(9)(B)(i)(II) (10 year “unlawful presence bar”) is applicable solely where the applicant establishes extreme hardship to her U.S. citizen or lawfully resident spouse or parent. A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

Extreme hardship 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).

In support of our client’s I-601 waiver application, we prepared an extensive legal brief going over how the facts and circumstances of our clients’ situation met the legal standards used to define “extreme hardship.” We conducted extensive research on the country conditions of Thailand to demonstrate the hardships the U.S. citizen fiancé would suffer if he were to re-locate to Thailand to be with his loved on. The brief was accompanied by a comprehensive array of supporting exhibits that provided objective, credible proof of the statements made in the legal brief.

The positive factors in this case included:

The U.S. citizen fiancé suffers from Generalized Anxiety Disorder and Dysthymic Disorder and has suffered from these conditions for many years
The U.S. citizen fiancé’s family has an extensive history of mental illness
The U.S. citizen fiancé is the single parent of a U.S. citizen minor child who suffers from Post-Traumatic Stress Disorder
The U.S. citizen fiancé is the sole care-giver and provider for his elderly and disabled parents, who suffer from progressive and degenerative medical conditions that have compromised their mobility and ability to perform routine tasks
The U.S. citizen fiancé suffers from a serious physical ailment that requires surgery. However, he cannot undergo surgery without his fiancée’s presence in the U.S. to help take care of his parents while he recovers from surgery.
The U.S. citizen fiancé’s work performance is already significantly impaired due to his psychiatric and medical conditions, causing absences from work and markedly poor performance. Continued stress caused by separation from his loved one may force him to close down his business and lead to subsequent financial collapse.
The U.S. citizen fiancé’s son, who suffers from Post-Traumatic Stress Disorder, is negatively affected by his father’s long absence from home. He also shares joint-custody over his son with his ex-wife, who will never allow their son to be re-located to another country.
The region of Thailand where the Thai fiancée resides is subject to an advisory warning by the U.S. embassy, due to historical violence and civil unrest.

As a result of the “unlawful presence” waiver prepared and submitted by our office, this I-601 waiver application was approved and the couple can now be married inside the United States and pursue a life together as a family.

Client Approval: I-601 Waiver for Robbery Approved for Vietnamese Client

October 2, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a citizen of Vietnam who was subject to a life-time bar from being admitted to the United States for conviction of a crime involving moral turpitude under INA Section 212(a)(2)(A)(i)(I). Our client was previously convicted of Robbery and served 5 months in prison in his native country of Vietnam before being released.

In order to obtain approval of the I-601 waiver, I initiated our firm’s comprehensive process for preparation of compelling and persuasive immigration waiver applications. This is a process that has been crafted and improved over a period of 12 years of preparing I-601, I-212, and 212(d)(3) immigration waivers on behalf of our clients located across the U.S. and around the world.

I began by forwarding our Extreme Hardship Worksheet to my clients, which contains a comprehensive list questions designed to elicit extreme hardships and other persuasive factors from their lives. It also contains a long checklist of supporting documents that help document and prove the hardships and persuasive factors relevant to the case.

I recommended the couple to a clinical psychologist who I have worked closely with for over a decade. The psychological evaluation for immigration waivers is a specialized practice area for clinical psychologists and I provide in-depth guidance should my clients wish to utilize a psychologist who they already have a relationship with (please refer to my post on the elements of a powerful psychological evaluation for I-601 waiver applications for more details).

Once we identified the most important factors of the case, we prepared a comprehensive 27-page legal brief going over how the facts and circumstances of my client’s situation met the legal standards used to define “extreme hardship.” We also discussed and presented evidence of my client’s rehabilitation, good moral character, and his long history of bettering himself in his professional capacity.

We made sure every single facet of our case was documented including a proven history of mental disorder in the life of the U.S. citizen; her personal family history that makes her particular vulnerable to psychological hardship; as well as her daily support of her lawful permanent resident mother who relies upon her U.S. citizen daughter for every facet of her life in the U.S. Additionally, a table of exhibits referenced a variety of objective evidence in support of a showing of “extreme hardship”.

As a result of our efforts, the couple’s I-601 “Extreme Hardship” Waiver Application was approved and this family is now able to lawfully reside together in the United States.

Client Approval: I-601 Waiver Approved under INA 212(g) for Physical or Mental Disorder

October 1, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our client was recently approved for the I-601 Application for Waiver of Grounds of Inadmissibility we prepared and submitted on his behalf, after he was deemed inadmissible by the U.S. embassy in London, United Kingdom, under INA Section 212(a)(2)(A)(iii).

INA 212(a)(2)(A)(iii) deems an alien inadmissible if he/she is determined:

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others; or

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior;

In other words, this inadmissibility ground can be divided into two subcategories:

Current physical or mental disorders, with associated harmful behavior.
Past physical or mental disorders, with associated harmful behavior that is likely to recur or lead to other harmful behavior.

It is important to note that there must be both a physical or mental disorder AND harmful behavior to make an applicant inadmissible based on this ground. Neither harmful behavior nor a physical/mental disorder alone renders an applicant inadmissible on this ground. Harmful behavior is defined as behavior that may pose, or has posed, a threat to the property, safety, or welfare of the applicant or others.

On our client’s behalf, we prepared a comprehensive waiver application including an in-depth legal and factual discussion of INA 212(a)(2)(A)(iii) as it applies to the applicant. We presented and discussed medical evidence that demonstrates our client has no physical or mental disorder whatsoever. We presented and discussed evidence that shows our client has in fact never exhibited any type of behavior which can be deemed “harmful.” We also put forward evidence that demonstrates our client’s good moral character and complete absence of behavior that poses any risk of harm to himself or to others.

We furthermore instructed our client to locate a U.S.-based health care provider and obtain their consent to evaluate the applicant upon his admission to the U.S. (as well as to provide any care and treatment should it be deemed necessary). This was done to obtain the favorable exercise of discretion of the U.S. Center for Disease Control, which has jurisdiction to review waiver cases involving INA 212(a)(2)(A)(iii).

As a result of our efforts, our client was approved for the I-601 waiver and his now able to join his loved one inside the United States and pursue U.S. lawful permanent residence.

Client Approval: I-601 Extraordinary Circumstances Waiver Approved by Showing Exceptional or Extremely Unusual Hardship

August 23, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a citizen of Japan who was subject to a life-time bar from being admitted to the United States for conviction of a Crime Involving Moral Turpitude (CIMT) under INA Section 212(a)(2)(A)(i)(I).

Our client was previously convicted of two separate charges of assault, one of which was considered by the USCIS to be a “violent and dangerous criminal act.”

The court in Matter of Jean, 23 I. & N. Dec. 373 (AG 2002) heightened the standard that requires the government to deny relief to people convicted of violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or where the denial of relief would result in exceptional or extremely unusual hardship.

The standard announced in Matter of Jean was subsequently adopted into regulations at 8 CFR § 1212.7(d) (governing 212(h) waivers).

INA 212(h)(1)(A) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), and (E) of the Act may be waived in the case of an alien who demonstrates to the satisfaction of the Attorney General that:

the activities for which he is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of status;
the admission would not be contrary to the national welfare, safety, or security of the U.S.; and
the alien has been rehabilitated.

The Attorney General may also waive the grounds of inadmissibility under section 212(a)(2)(D)(i)-(ii) of the Act with regard to prostitution if the alien establishes to the satisfaction of the Attorney General that the alien’s admission would not be contrary to the national welfare, safety, or security of the U.S., and that the alien has been rehabilitated. INA 212(h)(1)(A).

INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who demonstrates that his removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.

Our office was contacted after the Japanese waiver applicant and her U.S. citizen husband (a member of the U.S. Armed Forces) filed for the I-601 Waiver on their own after the applicant was deemed inadmissible at her consular interview. Their “self-prepared” I-601 Waiver triggered a Request for Additional Evidence which stated that the couple had failed to show extraordinary circumstances that would warrant approval of their I-601 waiver application.

In order to meet this heightened standard of review (which is even more difficult to achieve than for a standard “extreme hardship” waiver) , we initiated our firm’s comprehensive process for preparation of powerful and effective immigration waiver applications.

We reviewed all of the material the couple previously submitted to the USCIS, forwarded our Extreme Hardship Worksheet to the couple (which contains questions designed to elicit extreme hardships and other persuasive factors), and provided a comprehensive checklist of supporting documents to gather and return to our office .

We also recommended the couple to a psychologist well-versed in preparing psychological evaluations for immigration waivers and who offers a significantly discounted fee for my clients (please refer to my post on the elements of a powerful psychological evaluation for I-601 waiver applications for more details).

Once we identified the most important factors of the case, we prepared a comprehensive 20 page legal brief going over how the facts and circumstances of our client’s situation not only met the legal standards used to define “extreme hardship,” but rose to the level of “exceptional or extremely unusual hardship”. We also argued that national security and policy considerations warranted approval of the I-601 waiver based upon the important duties and meritorious service undertaken by the U.S. citizen spouse who is a member of the U.S. Armed Forces.

We presented our own case law that was relevant to the facts and circumstances of our case and supported approval of our waiver application. Additionally, a table of exhibits referenced a variety of objective evidence in support of a showing of “exceptional and extremely unusual hardship.

We discussed and elaborated upon evidence of the waiver applicant’s rehabilitation, good moral character, and her overall dedication as a wife and mother who is integral to the emotional support of her U.S. citizen husband (who suffers from Anxiety Disorder, triggered by heavy combat and fatalities of unit members experienced during his multiple tours of duty in Afghanistan).

We also highlighted the’ waiver applicant’s role in helping her U.S. citizen husband care for his elderly U.S. citizen parents, who suffer from serious life-threatening medical conditions (including Type II Diabetes, hypertension, hyperlipidemia, among other conditions), and who rely upon their son for financial support and overall care.

We made sure every single facet of our client’s case was documented and that the objections raised by the USCIS in their previous denial was fully addressed to maximize the chances of approval.

As a result of our efforts, the couple’s I-601 “Extreme Hardship” Waiver Application was approved and this family now lawfully resides together in the United States.

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 Fraud/Misrepresentation

August 14, 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 Chinese client who was subject to the fraud/misrepresentation life-time bar pursuant to INA Section 212(a)(6)(C)(i).

Our client was previously employed in the U.S. under the H-1B visa and had an EB-1 category immigrant visa petition filed on his behalf. Unfortunately, after self-preparing a TN visa application on his own, our client and his spouse were denied entry into the U.S. and both charged with fraud/misrepresentation due to inaccuracies discovered in their USCIS and Dept. of State application forms.

Years later, our client attempted to enter the U.S. temporarily for business purposes but was denied at the US consulate. He subsequently contacted my office for assistance in obtaining a waiver of INA Section 212(a)(6)(C)(i) and approval of a B-1 visa to temporarily visit the U.S. to attend an industry conference and meet with business partners.

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, the vital importance of the products provided by our client’s company which is utilized by U.S. companies in projects integral to the national security and defense of the United States.

We emphasized the non-existent risk of our client overstaying or violating the terms of a B-1 visa, given the substantial venture capital funding raised by his China-based start-up; the number of employees employed by our client’s company; our client’s stellar background of executive and technological accomplishments; as well as his personal and financial ties to China and Canada (where his immediate family resides).

Based upon these factors, our 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 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. This was especially so in this case because our client had demonstrated immigrant intent in the past through the EB-1 category immigrant visa petition that was filed on his behalf.

Due to our extensive preparation of the waiver and repeated lobbying undertaken to ensure its adequate consideration and review by the U.S. consulate, our client is now able to enter the United States and further the success of his fast-growing company.

Client Approval: I-601 Waiver and Adjustment of Status Approved in 3.5 Months

July 10, 2015 By Michael Cho Immigration Lawyer 1 Comment

This week, we received approval of both an Application for Adjustment of Status to Lawful Permanent Residence and approval of the related I-601 “Extreme Hardship” Waiver for a client subject to a life-time inadmissibility bar to the United States due to fraud/misrepresentation.

The applicant was found to be inadmissible to the United States under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. §1182(a)(6)(C)(i), for having attempted to procure an immigration benefit in the United States by fraud or willful misrepresentation.

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).

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

In this case, we prepared an Application for Adjustment of Status to Lawful Permanent Residence for the applicant based upon marriage to a U.S. citizen. As with all of our Adjustment of Status cases, we provided a detailed letter going over every step of Adjustment of Status process to our client. We also provided a point-by-point checklist which describes every supporting document required for the case, making it easy for our clients to know what to gather and forward to our office.

We drafted every USCIS form required for Adjustment of Status, assembled the package for filing with the USCIS, and submitted it on behalf of our client after a final review to make sure every legal and technical requirement was met.

Once the Adjustment of Status application was filed, we began preparation of the I-601 “Extreme Hardship” Waiver. The I-601 Waiver for Fraud/Misrepresentation prepared by our law firm included a complete set of USCIS forms requesting consideration of the I-601 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 an extensive collection of exhibits to prove the extreme hardships being presented.

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

The U.S. citizen spouse has long suffered from Generalized Anxiety Disorder and Dysthymic “Persistent Depressive” Disorder
The U.S. citizen spouse has a significant family history for mental health issues including a sibling who has suffered from clinical depression, and maternal family members with histories of Alzheimer’s disease
The U.S. citizen spouse’s father has struggled repeatedly with cancer, severe gout, and hepatitis B, as well as hypercholesterolemia and hypertension. The U.S. citizen spouse helps take of his father as best he can.
The U.S. citizen spouse’s academic research and expertise lies within in area of significant national interest to the United States
The U.S. citizen spouse was born and raised in the U.S. and has extensive familial, professional, and social ties to the country.
The waiver applicant is a senior executive with a multinational corporation that employs 11,500 people worldwide, and has been entrusted with high-level fiduciary and financial duties by the company

As a result of our effort, the I-601 “extreme hardship” waiver was approved together with the Adjustment of Status application within 3.5 months of submission, and our client was granted U.S. permanent residence.

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).

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.

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.

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