I-601 Waiver and I-212 Waiver Legal News
The applicant in this case is a native of Russia and a citizen of Ukraine, who was found to be inadmissible to the United States under sections 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for procuring a visa by willfully misrepresenting a material fact, and pursuant to section 212(a)(9)(A)(i) of the Act, 8 U.S.C. § 1182(a)(9)(A)(i), due to her expedited removal from the United States.
The applicant applied for a waiver of inadmissibility (also known as the I-601 or “extreme hardship” waiver) and permission to reapply for admission (also referred to as the I-212 waiver) in order to reside in the United States with her U.S. citizen husband.
The take-away from this case is that when the I-601 and I-212 waivers are filed together, approval of the I-601 waiver upon finding of extreme hardship and exercise of favorable discretion, also means approval of the I-212 waiver. This means that waiver applicants applying for the I-601 and I-212 waivers together, should focus most of their efforts on proving extreme hardship to the qualifying relative as well as on demonstrating why a favorable exercise of discretion should be granted.
Section 212(a)(9)(A) provides, in pertinent part:
(i) Arriving Aliens. -Any alien who has been ordered removed under section 235(b)(l) or at the end of proceedings under section 240 initiated upon the alien’s arrival in the United States and who again seeks admission within 5 years of the date of such removal … is inadmissible.
(ii) Other Aliens. -Any alien not described in clause (i) who-
(I) has been ordered removed under section 240 or any other provision of law, or
(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien’s departure or removal … is inadmissible.
(iii) Exception. -Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien’s reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General [now, Secretary, Department of Homeland Security] has consented to the alien’s reapplying for admission.
Section 212(a)(6)(C)(i) of the Act provides, in pertinent part:
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)(1) of the Act provides:
The [Secretary] may, in the discretion of the [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 [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[ … ].
The favorable factors in this case cited by the AAO in finding extreme hardship to the U.S. citizen spouse are the following:
- The U.S. citizen husband is 60-years old.
- He has a number of medical conditions for which he receives regular treatment and monitoring including rheumatoid arthritis (generalized inflammation of the joints), osteoarthritis (localized inflammation due to wear and tear) of the hand/wrist, as well as hepatitis C and a latent form of tuberculosis (TB) infection.
- While he has maintained an active lifestyle, the U.S. citizen husband has suffered painful flare-ups while overseas with his wife.
- The U.S. citizen husband’s chronic infections are actively monitored by his physician with an eye toward offering his patient access to new therapies.
- The Ukrainian wife’s presence in the U.S. spares the U.S. citizen husband from overseas visits to ease the pain of separation. This thereby minimizes the chances that painful episodes experienced during visits to Ukraine and Mexico will reoccur.
- The State Department advises that U.S. citizens who are ill or infirm not travel to the Ukraine, as “those with existing health problems may be at risk due to inadequate medical facilities.”
- The State Department substantiates the U.S. citizen husband’s concerns for his wife’s personal safety and security by noting that street crime is a serious problem, corruption pervasive among the police, and emergency services far below western standards.
- The U.S. citizen husband was married for 34 years before marrying the applicant in 2010. He observes that he does not do well alone. A psychotherapist concluded, based on targeted questionnaires and symptoms including sadness, crying, insomnia, loss of appetite/weight, headaches, and problems concentrating, that the U.S. citizen husband suffers from major depression stemming from prolonged separation from his Ukrainian wife.
- The psychological report confirms that the U.S. citizen husband receives little relief from anti-depressant medication and sleep aids prescribed by his doctor, and supports the therapist’s conclusion that his psychological distress will continue to worsen in his wife’s absence.
- The U.S. citizen husband’s second wife, with whom he shares custody of their six year old son, has conditioned granting full custody upon the Ukrainian wife’s presence as a homemaker to the household. The U.S. citizen husband is eager to have his son live with him and his wife in a family unit.
- The U.S. citizen husband has many ongoing expenses, including high fixed costs for his business; tuition and travel costs for his young son currently residing in Kentucky with his mother and attending school; travel expenses to visit with his wife abroad; and costs of maintaining regular communications with his wife to ease the pain of separation.
- The U.S. citizen husband is struggling to maintain a home in Alaska and a Kiev rental apartment for his wife, while also paying for significant expenses associated with supporting his son in Kentucky. The expense of maintaining two households have strained his financial resources and forced him to access retirement accounts to make ends meet.
The factors cited by the AAO in exercising favorable discretion in this matter are:
- The extreme hardships the applicant’s husband would face if the applicant were to reside in Ukraine, regardless of whether he accompanied the applicant or remained in the U.S.
- The applicant’s lack of any criminal record
- Supportive statements and passage of nearly four years since the applicant’s misrepresentations
- Her ready admission to and contrition about her misrepresentations.
As with all cases, a thorough overview of the case law, an in-depth and persuasive discussion of the relevant factors, along with a comprehensive array of supporting documents to prove the statements made, are required for approval of these types of applications.