Smart Immigration Lawyer

Client Approval: I-601 Waiver and I-212 Waiver Approved for 10 Year Unlawful Presence Bar and 10 Year Deportation Bar

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Client Approval: I-601 Waiver and I-212 Waiver Approved for Brazilian Applicant

Our office received approval of both the I-601 Waiver (Application for Waiver of Excludability) and I-212 Waiver (Application for Permission to Reapply for Admission) for the Brazilian spouse of a U.S. citizen wife.  The couple have one daughter together who is two years old.  They also raise a 6 year old son together who is from a prior relationship of the U.S. citizen wife.

The Brazilian husband entered the U.S. on a B-1/B-2 visitor visa and overstayed for over approximately 1.5 years in the country.  He was then detained and removed from the United States.  He subsequently re-located from his home country of Brazil to the United Kingdom for greater economic opportunities that would allow him to support his family back in the United States.

The U.S. citizen wife contacted me after her husband attended his immigrant visa interview at the U.S. embassy and was denied for the immigrant visa after being deemed inadmissible to the United States.  He was subject to the 10 year “unlawful presence bar” pursuant to INA INA Section 212(a)(9)(B) as well as the 10 year “deportation bar” pursuant to INA Section 212(a)(9)(A)(i) and (ii).

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.

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).

The USCIS exercises broad discretion when adjudicating I-212 waiver requests for permission to reapply.  The following may be considered positive factors in granting permission for early re-entry:

  •  Basis for the deportation
  • Recency of deportation
  • Foreign national’s length of residence in the U.S., and status held during that presence
  • Family responsibilities and ties to the U.S.
  • Foreign natonal’s evidence of good moral character
  • Foreign national’s respect for law and order
  • Evidence of reformation and rehabilitation
  • Hardship involving the applicant and others
  • Need for the applicant’s services in the U.S.
  • Whether the applicant has an approved immigrant or non-immigrant visa petition
  • Eligibility for a waiver of other inadmissibility grounds
  • Absence of significant undesirable or negative factors

Negative factors may include:

  • Evidence of moral depravity, including criminal tendencies reflected by an ongoing unlawful activity or continuing police record
  • Repeated violations of  immigration laws, willful disregard of other laws
  • Likelihood of becoming a public charge
  • Poor physical or mental condition (however, a need for treatment in the United States for such a condition would be a favorable factor)
  • Absence of close family ties or hardships
  • Spurious marriage to a U.S. citizen for purpose of gaining an immigration benefit
  • Unauthorized employment in the United States
  • Lack of skill for which labor certification could  be issued
  • Serious violation of immigration laws, which evidence a callous attitude without hint of reformation of character
  • Existence of other grounds of inadmissibility into the U.S.

”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.

I drafted a comprehensive 25+ 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 wife (and their children) are presently suffering from, and proved how they would worsen in the event of continued separation of this family.  I 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 included the following:

  • The U.S. citizen wife suffers from a number of medical conditions including Gallstone Pancreatitis and emotional depression.  She almost died from post-operative pneumonia after a recent medical procedure.
  • The U.S. citizen wife’s U.S. citizen son suffers from Attention Deficit Hyperactivity Disorder (“ADHD”), Obsessive Compulsive Disorder (“OCD”), Pervasive Developmental Disorder, and Adjustment Disorder with Mixed Emotions and Conduct.  He sees a psychologist regularly and takes medication for his conditions.
  • The U.S. citizen wife resides with her elderly parents, both of whom suffer from serious medical conditions.  The U.S. citizen wife’s father suffers from Pulmonary Thromboembolism, Hypertension, and Emphysema and has been informed by his physician that he may not survive his next heart attack.  The U.S. citizen wife takes care of her parents as best she can on a daily basis and helps manage their medical treatment.
  • The U.S. citizen wife has only a high school education, does not speak Portuguese, and has minimal employment prospects in Brazil and the United Kingdom.
  • The Brazilian husband worked diligently while in the United States to support his wife and two children.  He has continued to do so while residing abroad, sending money to his family every month while enduring a painful separation of almost 4 years from his beloved wife and two children

As a result of the I-601 Waiver and I-212 Waiver prepared and submitted by my office, both waiver applications were approved and the Brazilian husband now resides in the United States as a lawful permanent resident of this country.

Client Approval: I-601 Prostitution Waiver, I-601 Fraud Waiver, and I-212 Removal Waiver Approved for South Korean Client

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Client Approval: I-601 Prostitution Waiver, I-601 Fraud/Misrepresentation Waiver, and I-212 Waiver for Expedited Removal Approved for South Korean Client

Our office received approval of both the I-212 Waiver (Application for Permission to Reapply for Admission) and I-601 Waiver (Application for Waiver of Excludability) for the South Korean spouse of a U.S. citizen.  The South Korean wife was found inadmissible to the United States based on having admitted to previously engaging in prostitution in the United States; having committed fraud/misrepresentation in order to gain an immigration benefit; and having been expeditiously removed from the U.S. while attempting to enter the U.S. with a validly approved K-1 visa.

The U.S. citizen husband contacted my office after his fiancee’s removal from the United States due to our firm’s in-depth experience in securing I-601 “Prostitution Waivers” and I-601 “Fraud/Misrepresentation Waivers” over the past 12 years.  This was a particularly challenging case given the numerous grounds of inadmissibility that the South Korean wife was subject to: prostitution, fraud/misrepresentation, and a 5 year bar due to expedited removal from the U.S.

Section 212(h) of the Immigration and Nationality Act provides a discretionary waiver for the following criminal grounds of inadmissibility:

  • Crimes involving moral turpitude (subparagraph 212(a)(2)(A)(I))
  • Multiple criminal convictions (212(a)(2)(B))
  • Prostitution and commercial vice (212(a)(2)(D))
  • Certain aliens who have asserted immunity from prosecution (212(a)(2)(E))
  • An offense of simple possession of 30 grams or less of marijuana (212(a)(2)(A)(i)(II))

The Attorney General may 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 this removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.

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 (applied for using the I-212 Waiver): 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. hardship involving the applicant and others; 8. the need for the applicant’s services in the United States; and 9. whether the applicant has an approved immigrant or non-immigrant visa petition.

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

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

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

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

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

In support of my client’s I-601 and I-212 waiver applications, I prepared a comprehensive legal brief going over how the facts and circumstances of my clients’ situation met the legal standards used to define “extreme hardship”; “rehabilitation” of the client; and that my client’s admission would “not be contrary to the national welfare, safety, or security of the U.S.”  

In other words, we went above and beyond the work that many law firms would engage in by demonstrating that our client met the legal standard of BOTH INA 212(a)(2)(D)(i)-(ii) and INA 212(h)(1)(B).  This brief was accompanied by supporting exhibits that provided credible proof of every vital and relevant statement made in the legal brief.

The positive factors in this case included:

  • Psychological disorders suffered by the U.S. citizen husband including Dysthymic Disorder and Generalized Anxiety Disorder, both of which were being aggravated by the prolonged separation of the couple
  • Various physical illnesses and conditions suffered by the U.S. citizen husband, including Chronic Hepatitis B that required constant medical monitoring and treatment in the United States
  • Various physical illnesses and conditions suffered by the U.S. citizen husband’s parents, both of whom relied upon their son to support them financially and manage their medical care
  • Significant amounts of U.S. educational and mortgage debt of the U.S. citizen, all of which would be in danger of default should the U.S. citizen husband be forced to re-locate to South Korea (a country where he neither spoke the language nor would be qualified to practice his specialized profession)
  • Evidence of rehabilitation of the South Korean wife including educational courses undertaken and numerous affidavits written in her support

Although extreme hardship is only considered when suffered by the U.S. citizen or lawful permanent resident parent, spouse, son, or daughter of the foreign applicant under INA 212(h)(1)(B), it is my experience that extreme hardship suffered by any close relative of the qualifying relative should be thoroughly discussed.  In this case, the extreme hardships to be suffered by the U.S. citizen’s parents in the event of their son’s departure from the U.S., would in turn impact the U.S. citizen himself and aggravate all of the conditions he presently suffers from.  This was carefully outlined in detail in our memorandum.  This connection can be made when the qualifying relative plays an integral role in taking care of the close relative, either in daily care, financial support, and/or medical oversight.

As a result of the I-601 “prostitution waiver,” I-601 “fraud/misrepresentation waiver,” and I-212 “removal/deportation waiver” prepared and submitted by my office, the I-601 and I-212 waiver applications were all approved.  The couple now happily reside together inside the U.S.  The South Korean wife holds U.S. permanent residence and will qualify to apply for U.S. citizenship within three years.

Client Approval: I-601 Waiver Approved for 3 Year Unlawful Presence Bar

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Client Approval: I-601 Waiver Approved for 3 Year Unlawful Presence Bar

Our office received approval of the I-601 “unlawful presence” waiver for the fiancée of a U.S. citizen.   She had previously entered the U.S. as a non-immigrant visitor but overstayed her authorized period of stay in the U.S. by over six months before departing back to the United Kingdom.  The U.S. citizen fiancée filed the I-129F Petition for Alien Fiancé(e) on her behalf.  She was interviewed at the U.S. embassy in London where she was denied the K-1 visa based upon being subject to the 3 year unlawful presence bar under Section 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act.  The U.S. citizen fiancé subsequently contacted my office to prepare and submit the I-601 waiver on their behalf.

INA Section 212(a)(9)(B)(v) provides that a waiver for INA Section 212(a)(9)(B)(i)(II) is applicable solely where the applicant establishes extreme hardship to her U.S. citizen or lawfully resident spouse or parent.  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 my client’s I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of my clients’ situation met the legal standards used to define “extreme hardship.”  This brief was accompanied by supporting exhibits that provided proof of the statements made in the legal brief.

The positive factors in this case included:

  • The U.S. citizen fiancé is a disabled U.S. veteran who sustained injuries during combat training and deployment.
  • The U.S. citizen fiancé has been diagnosed with Post-Traumatic Stress Disorder, recurring migraines, chronic knee pain, Depression, and Hypertension.  He receives medical care through the U.S. Department of Veterans Affairs.
  • The U.S. citizen fiancé continues to work with the U.S. Marine Corp as a specialized contractor.
  • The U.S. citizen fiancé has significant financial obligations in the U.S. including mortgage payments on a family home. Departure from the U.S. would mean discontinuation of his work with the U.S. Marine Corp and the inability to afford his existing monthly payments.

 It is my experience that waiver applications filed by fiancées and spouses of U.S. military personnel and veterans are generally given more favorable discretion by the USCIS if the importance of their duties to the national security of the U.S. can be demonstrated.  I thus elaborated on the vital nature of the U.S. citizen fiancé’s continued work with the U.S. Marine Corp and how instrumental his work is to safe-guarding the lives of American soldiers. .

 As a result of the “unlawful presence” waiver prepared and submitted by our office, this I-601 waiver application was received and the couple can be re-united in the United States.

Client Approval: I-601 Waiver Approved for Crime Involving Moral Turpitude

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I-601 Waiver Approved for Crime Involving Moral Turpitude under INA 212(h)

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for an Austrian client 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).

He was previously convicted of gross careless impairment of interests of creditors and withholding employees’ social security contributions in Austria.  Both convictions were expunged from the record after he complied with the terms of his probation.  His U.S. citizen wife filed the I-130 Petition for Immediate Relative on his behalf.  He was denied at the U.S. embassy during his consular interview since foreign convictions that are expunged are still deemed relevant for U.S. immigration purposes.

He hired an attorney without specialized experience in waivers to prepare and submit a waiver application on his behalf.  That waiver was denied.  He subsequently contacted our office and engaged my services to re-submit the I-601 waiver on his behalf pursuant to INA 212(h)(1)(B)  based on the extreme hardship that his US citizen wife (and son) would continue to suffer if he is not admitted to the U.S.

An I-601 Application for Waiver of Grounds of Inadmissibility under INA 212(h)1()(B) requires a showing that the applicant’s U.S. citizen spouse, parent. son or daughter would suffer “extreme hardship” if the applicant is refused admission into the United States.

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

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

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

I prepared a comprehensive I-601 waiver application including a 15 page legal brief going over how the facts and circumstances of my clients’ situation met the legal standards used to define “extreme hardship.”  I also discussed and presented evidence of the applicant’s rehabilitation, good moral character, and overall dedication as a husband and father who was integral to the care and well-being of his ill U.S. citizen wife and son.

This case was particularly difficult because the U.S. citizen wife was born and raised in Austria.  She had spent her entire life in Austria and only recently re-located to the United States.  We had to overcome the presumption that a U.S. citizen who was raised and spent her entire life in Austria, who speaks the local language as a native, was educated in the country, and has never resided in the United States, has adjusted to life in Austria and is not suffering extreme hardship.

Given the long history of the U.S. citizen wife in Austria, I made sure that the Austrian physicians’ letters conformed to the specific needs and requirements of the I-601 waiver.  I also worked with a U.S. marriage & family therapist to corroborate the Major Depression the U.S. citizen wife suffers from and the consequences of immigration-caused separation upon her mental health and overall well-being.   Additionally, I carefully analyzed the strengths and weaknesses of the case and put together a table of exhibits that supported a showing of “extreme hardship.”  The supporting documents included:

  • Psychological evaluation, physicians’ letters, and medical records of the U.S. citizen wife confirming her Major Depression, difficulty sleeping, debilitating migraines, high blood pressure, Chronic Hepatitis C, and hypertension
  • Proof of the U.S. citizen wife’s dire financial situation including her complete economic dependence on her Austrian husband
  • Evidence of the Austrian husband’s continued employment in the United States with his current employer should he be admitted to the U.S., and the importance of this employment to meet the medical and vital needs of his U.S. citizen wife and son
  • Evidence of the U.S. citizen’s wife’s reliance on the support and assistance of her parents, and how her parent’s re-location to the United States necessitated her re-location to the U.S.
  • Affidavits demonstrating my client’s good moral character including a sworn affidavit from a Lieutenant-Colonel of the Austrian police department

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this family of mother, father, and son will be able to live together as a family in the United States.

I-601 Waiver Approved for Romanian Client Subject to 10 Year Unlawful Presence Bar

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I-601 Waiver Approved for Romanian Client Subject to 10 Year Unlawful Presence Bar

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a Romanian client who was subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B).

She entered the U.S. under the J-1 visa and was granted “duration of status” upon entry.  She then resided in the U.S. for approximately 7 years until she received a notice of J-1 exchange visitor status violation in 2009.  She was informed that  as of the date of the USCIS notice, she was considered out of status and unlawfully present in the U.S.  She was then granted voluntary departure during removal proceedings and returned to her home country of Romania.  The couple contacted my office after the wife was denied at her immigrant visa interview at the U.S. embassy in Bucharest due to being subject to the 10 year unlawful presence ground of inadmissibility.

Note: For non-immigrants admitted for Duration of Status, if the USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied.  If an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation, or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order.  It must be emphasized that the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which removal proceedings are initiated. See 8 CFR 239.3.

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

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

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

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

I prepared a comprehensive I-601 waiver application including a 15 page legal brief going over how the facts and circumstances of her husband’s situation met the legal standards used to define “extreme hardship.”  I also discussed and presented evidence of her rehabilitation, good moral character, and overall dedication as a wife and mother who was integral to the care and well-being of her ill U.S. citizen husband.

This case was particularly difficult because the U.S. citizen husband was born and raised in Romania himself.  He was residing in Romania with the wife at the time the waiver was filed and working for a U.S. company with wages sufficient to support the family. We had to overcome the presumption that a U.S. citizen of Romanian origin, who speaks the local language, was educated in the country, and already residing abroad with his wife and son, has adjusted to life abroad and is not suffering extreme hardship.

Given the location of husband and wife in Romania, I worked with a Romanian clinical psychologist to ensure that her psychological evaluation of the U.S. citizen husband conformed to the specific needs and requirements of the I-601 waiver. Additionally, I carefully analyzed the strengths and weaknesses of the case and put together a table of exhibits that supported a showing of “extreme hardship.”  The supporting documents included:

  • Letter and medical records from the physician of the U.S. citizen husband confirming his high blood pressure and hypertension.
  • Letter from a Romanian clinical psychologist confirming the U.S. citizen husband’s clinical anxiety disorder and the risk of escalation of the disorder due to the immigration consequences of his wife’s removal and subsequent inadmissibility.
  • Proof of bankruptcy and foreclosure filed by the U.S. citizen husband as a result of the financial consequences of caused by his wife’s removal from the United States and subsequent inadmissibility.
  • Evidence that his U.S. employment would be soon lost due to his diminished performance and extended absences caused by his wife’s removal and inadmissibility from the U.S.
  • Specific information from official sources on the country conditions of Romania including its poor health system
  • Proof of extended visits and household expenses in two countries that led to financial depletion of the U.S. citizen husband’s assets
  • Affidavits demonstrating my client’s good moral character and her past contribution to the welfare of the U.S. and its economy

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this family of mother, father, and son will be able to return to their lives back in the United States.

Client Approval: I-601 Waiver under 212(h) Approved for Client With Multiple CIMT and Controlled Substance Conviction

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Client Approval: I-601 Waiver under 212(h) Approved for Client With Multiple CIMT and Controlled Substance Conviction

Our office recently received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a client who was subject to a lifetime ban from being admitted to the United States pursuant to  INA 212(a)(2)(A)(i)(I) and  INA 212(a)(2)(A)(i)(II).  Our client has multiple criminal convictions in her background including a conviction for a crime involving moral turpitude which occurred in 1998 and a controlled substance conviction (possession of a cannabis bong) which occurred in 1997.  Our client is married to a U.S. lawful permanent resident husband with an approved I-130 immediate relative petition filed on her behalf.

She contacted me after filing the I-601 waiver on her own and receiving a notice from the USCIS stating that the waiver package she filed did not contain sufficient evidence that a favorable exercise of discretion was warranted in her case.

Legal Requirements of the § 212(h) Waiver

Section 212(h) of the Immigration and Nationality Act provides a discretionary waiver for the following criminal grounds of inadmissibility:

  • Crimes involving moral turpitude (subparagraph 212(a)(2)(A)(I))
  • Multiple criminal convictions (212(a)(2)(B))
  • Prostitution and commercial vice (212(a)(2)(D))
  • Certain aliens who have asserted immunity from prosecution (212(a)(2)(E))
  • An offense of simple possession of 30 grams or less of marijuana (212(a)(2)(A)(i)(II))

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 she 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;

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:

  • has a parent, spouse, son, or daughter who is a U.S. citizen or lawful permanent resident of the United States; and
  • the parent, spouse, son, or daughter would suffer “extreme hardship” on account of the alien’s ineligibility to immigrate

Waiver applicants must also show that their application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in his or her case.

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

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

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

How I Obtained Approval of the I-601 Waiver for My Client Who Had Multiple Convictions for Crimes Involving Moral Turpitude and a Controlled Substance Conviction

In support of my client’s I-601 waiver application, I prepared a comprehensive 21-page legal brief going over how the facts and circumstances of her situation met the legal standards for both INA 212(h)(1)(A) and INA 212(h)(1)(B) including citations of existing case law favorable to my client’s case.

I thoroughly outlined the the medical, financial, and psychological hardships of the case and presented persuasive evidence of my client’s rehabilitation and good moral character.  Not only did I show that my client was rehabilitated and her admission not contrary to the national welfare, safety, or security of the U.S., I also demonstrated that her overall dedication as a wife and mother was integral to the daily care of her ill U.S. citizen husband (who suffers from coronary heart disease and psychological disorders) and their three children (one of whom suffers from Attention Deficit Hyperactivity Disorder).  I also showed that the welfare of her husband and children depends on them remaining inside the United States together with their wife and mother.

An extensive table of exhibits also listed a variety of evidence in support of a showing of “extreme hardship” and rehabilitation.

As a result of our efforts, our client was approved for the 601 waiver within 4 weeks of submission and subsequently, received her lawful permanent residence to join her family in the United States.

Expedited Approval of the I-601 Waiver, I-212 Waiver, and 212(d)(3) Non-Immigrant Waiver

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I-601 Waiver and I-601A Waiver Expedite

The USCIS has had a long standing policy to accept requests to expedite processing of petitions or applications where the applicant or the petitioner demonstrates reasons that merit expedited processing of a petition or application.

While almost all I-601 waiver applicants outside the United States have an interest in expeditious processing, the USCIS states that only extraordinary circumstances that present certain compelling and urgent, time-sensitive reasons merit expedited processing of the I-601 waiver.

According to a memorandum dated 2011, the types of extraordinary circumstances that may, generally, merit expedited processing of a Form I-601 are those in which there are:

  • “time-sensitive and compelling situations that necessitate the applicant’s presence in the United States sooner than would be possible if the application were processed under normal processing times” or
  • “other time-sensitive circumstances that nonetheless merit expeditious processing, principally where the failure to expedite the adjudication could result in significant delays in family reunification.”

These situations may include, but are not limited to, situations in which the applicant establishes one or more of the following:

  • The applicant has urgent and critical medical needs that cannot be addressed in the applicant’s country;
  • An applicant’s family member in the United States has a serious medical condition and has urgent and critical medical needs related to that condition that require the applicant to assist the family member in the United States;
  • The applicant is faced with urgent circumstances related to the death or serious illness of a family member;
  • The applicant or qualifying family member is a particularly vulnerable individual due to age, serious medical condition, or disability and this vulnerability is exacerbated by the applicant’s presence outside the United States;
  • The applicant is at risk of serious harm due to personal circumstances distinct from the general safety conditions of those living in the applicant’s country;
  • It would be in the national interest of the United States to have the applicant in the United States (for example, the applicant’s presence in the United States is urgently required for work with a U.S. government entity); or
  • As described in a request from or for a member of the Armed Forces of the United States:
    • The applicant’s qualifying family member is a member of the military who is deployed or will soon be deployed; and
    • The applicant demonstrates that, in light of the deployment there are compelling reasons to expedite the request due to the impact of the applicant’s absence from the United States on the applicant, the qualifying family member, or their children, if any.

The above non-exhaustive list describes some examples of situations that may, depending on the facts of the case, merit a discretionary approval of a request to expedite adjudication of a waiver request.

However, these are not the only circumstances that may warrant expeditious processing.  There may also be other time-sensitive circumstances that do not necessitate the applicant’s presence in the United States sooner than would be possible under normal processing times, but that nonetheless merit expeditious processing.

For example, the applicant may be ineligible to receive a visa in the following month due to forecasted visa regression and therefore faces an even more prolonged and unanticipated separation from family members if the application is not expedited.

Similarly, the applicant may request that the case be expedited to prevent a child not covered by the Child Status Protection Act from aging out before visa issuance.  There also may be circumstances in which a prior USCIS error merits expeditious processing of a request.

Requests must include sufficient evidence to support the claimed need for expedited processing or an explanation of why that evidence is not available.  For example, if the request is based on an urgent, serious medical condition, the applicant should provide a medical report.  If the request is based on urgent need by a U.S. government entity to have the applicant in the United States, the applicant should provide a letter from the entity supporting the expedite request.

My office has successfully obtained expedited approval of applications for the I-601 waiver.  I also regularly obtain expedited approval of the I-129F Petition for Alien Fiancee and I-130 Petition for Alien Relative.  In my experience, the “extraordinary circumstances” discussed in this article form the basis for successful expedite requests for the I-601 waiver, the I-212 waiver, the 212(d)(3) non-immigrant waiver, as well as other relative-based petitions.  The most common basis for expedited approval that I encounter is military deployment of the U.S. citizen petitioner.

Client Approval: 212(d)(3) Waiver Approved for Mexican Professional Requiring Corporate Training in the U.S.

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Client Approval: 212(d)(3) Waiver Approved for Mexican Professional Requiring Corporate Training in the U.S.

We recently received approval for a 212(d)(3) non-immigrant waiver prepared on behalf of a Mexican client who was subject to a lifetime bar from the United States due to a charge of fraud/misrepresentation pursuant to INA 212(a)(6)(c)(i).  Our client was also expeditiously removed twice from the United States and subject to the 20 years bar pursuant to INA 212(a)(9)(A)(i).

I 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 my client’s case, I addressed each of the factors laid out by Matter of Hranka while emphasizing the importance of my client’s role in the multinational company he now worked for; the critical nature of the training he needed to receive in the United States for his professional career as well as for his employer (which held direct ramifications for benefiting the economic welfare of the United States); previous Dept. of State error that directly led to his second expedited removal from the U.S.;  his ties to Mexico including his wife and children; and his history of law-abiding and ethical behavior which was supported by numerous affidavits from his colleagues and friends.

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 Visitor Visa.  He is now able to enter the United States to participate in training mandated by his company and continue his successful career with a respected multinational corporation.

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