Waiver Approvals - Page 8 of 9 - Smart Immigration Lawyer

Client Approval: 212(d)(3) Waiver, F-1 Visa and Driving Under the Influence (DUI)

September 23, 2013 By Michael Cho Immigration Lawyer 2 Comments

I recently prepared and submitted a 212(d)(3) non-immigrant waiver on behalf of a Brazilian client. She subsequently received approval for extension of her F-1 visa. My client was previously arrested for driving under the influence of alcohol while inside the United States. During her visit to see family in Brazil, she applied for extension of her F-1 student visa. She was informed by the U.S. consulate that she would have to undergo a medical examination. At the medical examination, she was classified as having a “Class A” condition due to the recency of the DUI conviction and strict Technical Guidelines of the Center for Disease Control and Prevention. Consequently, she was informed that she would be inadmissible to the United States based on being subject to the health ground of inadmissibility pursuant to INA Section 212(a)(1)(A)(iii)(II):

Any alien who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)–…(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…is inadmissible

My client is an outstanding graduate student who is the recipient of a prestigious tuition scholarship, has received numerous honors and awards in the past, and is involved in a variety of extracurricular activities related to her field of specialization. This was her first DUI conviction and she completed her Diversion Agreement program in full including paying the court fee; completing a drug and alcohol assessment and recommended treatment program; attending a victim impact panel; and not using any drugs or alcohol during the term of her Diversion Agreement program. By completing the Diversion Agreement, she is scheduled to have the DUI conviction dismissed by the court in 2014. However, she was scheduled to begin the academic semester in the fall of 2013.

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 the studies she was pursuing (which held direct ramifications for benefiting the welfare of communities within the United States); her successful completion of all aspects of her DUI Diversion Agreement Program; her track record of academic excellence and achievement which would be derailed if she missed the start of her fall academic semester; the potential consequences of missing the start of her fall academic semester, which included loss of her tuition scholarship; and her history of law-abiding and ethical behavior which was supported by numerous affidavits from her professors and colleagues.

More importantly, I argued in the alternative that my client should not be deemed subject to the health ground of inadmissibility since INA Section 212(a)(1)(A)(iii)(II) applies to those whose “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…” I set forth arguments and supporting documents demonstrating that there is no likelihood of my client’s DUI recurring, given the importance she places on her studies, her history of good conduct, and other evidence of complete rehabilitation.

Based upon these factors, my client was approved for the F-1 extension and is now in the United States successfully continuing her studies with no loss of school time whatsoever.

I-601 Waiver Approved – Client Review by Chris C.

August 21, 2013 By Michael Cho Immigration Lawyer Leave a Comment

All client testimonials are written by my former clients who you may request to contact and speak with, depending upon their personal schedules and preferences.

I was in need of a Waiver for a visa. I knew the process was going to be difficult , and one that would require and attorney to prepare the waiver. i consulted several attorney . Of the 5 offices i called Mr Cho was the only Attorney that answered his own phone! I had a few offices that flatly told me that they thought my case was to difficult and would not even consider taking the case (this was after i spoke to their secretary or assistant!!). Mr Cho was honest but also more optimistic concerning my chances. Mr Cho took my case and won the visa for my wife. Mr Cho guided me through out the waiver process and did not hesitate to answer my phone calls. I am very thankful for Attorney Cho. Mr Cho gave me personal service, either via email or on the phone. Mr Cho was accessible night or day (even emails sent by me at night were answered that evening). Thanks for the good service.!!!!! My wife has her Green Card.

By Chris C. from Southfield, Michigan

Fiance Visa with IMBRA Waiver Approved

August 20, 2013 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval for a K-1 fiance visa petition that I prepared and filed on behalf of a U.S. citizen and his South Korean fiance. I prepared and submitted the initial I-129F Petition for Alien Fiance together with a comprehensive array of supporting documents including proof of U.S. citizenship of the petitioner; affidavits of intent to marry; explanation of how the couple met and how the relationship has developed over time; proof of the couple having met in person within the last 2 years; and evidence of continued relationship.

The U.S. citizen had previously filed a K-1 fiance visa petition on behalf of a different person. That relationship ended due to personal differences. However, the International Marriage Broker Regulations Act requires a general waiver to be filed in the following circumstances:

1. When the U.S. citizen filed K-1 fiancee visa petitions for two or more beneficiaries or

2. When the U.S. citizen previously had a K-1 fiance visa petition approved, and less than 2 years have passed since the filing date of the previously approved petition.

Consequently, I also prepared a general waiver pursuant to Section 832 of the International Marriage Broker Regulation Act, Subtitle D of Title VIII (Sec.831-834) of United States Public Law 109-162. The waiver consisted of a persuasive brief presenting the background of the U.S. citizen; an explanation of why the previous relationship ended before issuance of the K-1 fiance visa; a summary of the genuine and loving nature of the current relationship; re-iteration of their firm intent to marry within 90 days of the fiance’s entry into the United States; and documents to support the statements made in the waiver.

Both the I-129F Petition for Alien Fiance and general IMBRA waiver were approved by the USCIS. I then prepared all of the consular forms required by the Dept. of State. I also helped the clients gather the supporting documentation required for consular processing and conducted an interview prep via telephone to go over the types of questions that may be asked.

As a result of our concerted effort, the fiance was approved for the K-1 visa at the U.S. embassy in Seoul. This couple can now begin a life together in the U.S. as husband and wife in the near future.

I-601 Extreme Hardship Waiver Approved

August 10, 2013 By Michael Cho Immigration Lawyer 1 Comment

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a Mexican client who was subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B). She was also subject to the fraud/misrepresentation ground of inadmissibility under INA Section 212(a)(6)(C)(i) due to the use of a false document to enter the United States.

I prepared and filed three separate I-130 immediate relative petitions and ultimately received approval for three immigrant visas: for the Mexican wife who required the I-601 waiver, and her two Mexican children who did not require unlawful presence waivers since they were both under the age of 18. Any period of time spent unlawfully in the U.S. while under the age of 18 does not count toward calculating unlawful presence under INA Section 212(a)(9)(B) [9 FAM 40.92 N 4.1].

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.

In support of her I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her 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 daily care of her ill U.S. citizen husband (and his elderly mother). Since this was her second marriage to a U.S. citizen, I presented compelling evidence that both marriages were genuine when entered into as well as the reasons why her previous marriage ended in divorce. A table of exhibits also listed a variety of evidence in support of a showing of “extreme hardship” including:

Letter and medical records from the physician of the U.S. citizen husband’s mother, confirming her diabetes, hip surgery, frequent infections, low blood sugar, and overall precarious health

Affidavits attesting to the U.S. citizen husband’s daily care of his elderly mother with the assistance of his Mexican wife, including hand-feeding her meals on a regular basis

U.S. citizen husband being evaluated as 100% disabled for post-traumatic stress disorder by the Dept. of Veterans Affairs resulting from his tours of duty during the Vietnam War

Letter from a psychiatrist confirming long-term treatment of the U.S. citizen husband for post-traumatic stress disorder

War decorations awarded to the U.S. citizen husband during his service during the Vietnam War

As a result of our efforts, our client was approved for the I-601 and subsequently, received her lawful permanent residence together with her two children.

I-601 Waiver Approved by I-601 Attorney Michael Cho

August 2, 2013 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 waiver on behalf of the Brazilian wife of a U.S. citizen. She had previously entered the U.S. as the K-1 fiancee of her U.S. citizen husband. However, the couple attempted to handle her adjustment of status themselves, leading to mistakes in the filing of the application. She then departed the U.S. after exceeding her authorized period of stay by over one year. Our office was contacted after she was deemed inadmissible to the U.S. based on Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, for having been unlawfully present in the United States for more than one year and seeking readmission within 10 years of her last departure from the United States.

INA Section 212(a)(9)(B)(v) provides that a waiver, under 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. 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 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her 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 husband suffered from high blood pressure, which was shown to be a hereditary disease influenced by lifestyle factors. He was also diagnosed with Clinical Depression, with a rapidly deteriorating condition as a result of a miscarriage suffered by his wife during the immigration process.
The U.S. citizen husband’s mother recently suffered two heart attacks and was now dependent on her son to take care of her, hand-feed her meals, and provide for her financially. He could not move to Brazil without abandoning his U.S. citizen mother and putting her health at risk.
The U.S. citizen husband received medical care for his high blood pressure and clinical depression through the insurance provided by his U.S. employer. We demonstrated that his work performance had suffered noticeably due to the stress and emotional toll caused by the separation from his wife.

As a result of the I-601 waiver prepared and submitted by our office, she has received her lawful permanent resident status and the couple is now re-united inside the United States.

I-601 Waiver Approval

July 29, 2013 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of an I-601 waiver filed on behalf of a Mexican wife and her U.S. citizen husband. Our client entered the United States without inspection over 12 years ago with her family and has lived in the U.S. since then. She was deemed inadmissible to the U.S. based on Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, for having been unlawfully present in the United States for more than one year and seeking readmission within 10 years of her last departure from the United States.

This case was decided before the current I-601A provisional waiver came into effect. As a result, we first obtained approval of the I-130 Petition for Alien Relative. Our client then traveled to the U.S. consulate in Ciudad Juarez to attend her consular interview where she submitted the I-601 waiver package I prepared on her behalf. In support of her I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her 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.

This case was particularly challenging because our client and her husband had no children. The U.S. citizen husband also had no medical problems of note, and his U.S. citizen parents were in relatively good health. However, the U.S. citizen husband was in the U.S. Navy serving on board a guided missile cruiser. Among a variety of extreme hardships discussed, we showed that the extreme psychological hardship he would suffer upon separation from his wife would seriously impact his ability to perform his critical military duties. Alternatively, moving to Mexico to be with his wife would not be possible since that would be considered desertion and lead to a court marshal. This case was approved and our client now resides legally inside the United States as a lawful permanent resident.

I-212 Waiver Approved

July 26, 2013 By Michael Cho Immigration Lawyer 6 Comments

We received approval of a Form I-212, Applicant for Permission to Reapply for Admission into the United States After Deportation or Removal. The I-212 waiver was required due to our client having been removed from the U.S. upon arrival at a U.S. airport. She had visited the U.S. several times in the past but unknowingly overstayed her authorized period of stay during her previous visit. As a result, her visa was revoked and she was removed from the country when she applied for admission at the port of entry.

Our client returned to her home country of Romania, where she met, fell in love with, and married a U.S. citizen who was on long-term assignment for his company there. The U.S. citizen filed for his wife’s I-130 Petition for Alien Relative, which was approved and sent to the U.S. embassy for consular processing. When she arrived at the interview, she was informed by the consular officer of her need to file the I-212 waiver. Our office was subsequently contacted to prepare and file the I-212 on her behalf.

Section 212(a)(i)(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.

In support of her I-212 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of her situation met the legal standards used to adjudicate an I-212 waiver application. The legal standards discussed included those set forth by the Board of Immigration Appeals in its precedent decision, Matter of Tin. “Extreme hardship” to the U.S. citizen spouse was also discussed in-depth as a favorable factor in this matter. Some of the factors elaborated upon in this brief were:

Basis for the prior removal;
Recency of the removal;
Moral character of the applicant;
Respect for law and order;
Evidence of reformation and rehabilitation;
Family responsibilities;
Hardship involved to the applicant and others;
The need for the applicant’s services in the U.S.; and
Whether the applicant is subject to any other grounds of inadmissibility.

The I-212 waiver package also included supporting exhibits that provided proof of the statements made in the legal brief.

After consideration of the I-212 waiver we submitted to the USCIS Field Office with jurisdiction over her removal, the Field Office Director approved our I-212 waiver application, granting her permission to reapply for admission into the United States. The approved I-212 waiver was sent to the U.S. embassy in Bucharest, which issued her the immigrant visa to enter the U.S. lawfully as a permanent resident.

I-601 Waiver Approved by Waiver Attorney Michael Cho

July 25, 2013 By Michael Cho Immigration Lawyer Leave a Comment

We received approval of a client’s immigrant visa petition and I-601 Application for Waiver of Grounds of Inadmissibility. Our office prepared and filed the I-130 petition, secured its approval, then put together a comprehensive I-601 waiver package that was submitted to the USCIS for adjudication. The I-601 waiver was approved and our client obtained his immigrant visa at the U.S. consulate in Ciudad Juarez before returning to the U.S. as a lawful permanent resident.

Our client was a native of Mexico who entered the U.S. without inspection over 11 years ago. He subsequently married a U.S. citizen and they had a daughter together. He required the I-601 Application of Waiver of Grounds of Inadmissibility due to his unlawful presence of over 1 year inside the United States, which made him subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B).

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. “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.

In support of his I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of his 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.

Factors in the favor of our client were the following:

Our client had no criminal record and was a law-abiding individual his entire life except for the immigration mistake he made to enter and live illegally inside the U.S.
His U.S. citizen wife had suffered from severe kidney and bladder infections her entire life. We obtained a letter from her physician confirming her chronic condition and recommending regular check-ups and treatment inside the United States
Their daughter had been diagnosed with jaundice. We obtained a letter from her physician confirming her illness and recommending regular check-ups inside the United States.
We provided a report of the Mexican health system and demonstrated that the U.S. citizen wife and daughter would not be able to receive reliable and adequate medical care for their conditions in rural Mexico where the Mexican husband was from.
The U.S. citizen wife and child received medical care in the United States through health insurance provided by the Mexican husband’s employment in the United States. Without his presence and employment in the U.S., they would lose their medical coverage. On the other hand, moving to Mexico would also mean no longer being able to obtain medical treatments since she could not afford private health insurance given their pre-existing conditions.
Our client was a devoted husband and father who took care of his U.S. citizen wife and child on a daily basis and worked hard to pay for their rent, food, and other living expenses. They would suffer financial hardship without his presence given their health problems and the U.S. citizen wife serving as the primary care-giver for their young daughter.
We submitted a psychological report which diagnosed the U.S. citizen wife with Clinical Anxiety Disorder. We showed the interrelationship between psychological and physical disease, and presented evidence to show that her condition would worsen without the presence of her husband together with her in the United States.

As a result of the I-601 waiver approval, this family now lives inside the United States as lawful, contributing citizens of the United States.

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