Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a citizen of South Korea 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 a crime involving insurance fraud and sentenced to one-year probation.
Our office was contacted after the South Korean wife and her U.S. citizen husband prepared and filed for the I-601 Waiver on their own after the applicant was deemed inadmissible at her consular interview which took place at the U.S. Embassy in Seoul. Their “self-prepared” I-601 Waiver triggered a comprehensive “Request for Evidence” from the USCIS stating that the couple had failed to adequately establish and prove “extreme hardship.”
This was a particularly difficult case because the U.S. citizen husband already resides in South Korea with his wife, thus requiring us to overcome the assumption that any hardship he is suffering is not extreme since he has already re-located outside of the U.S.
The Request for Evidence from the USCIS specifically stated the following:
This office may approve a waiver of the inadmissibility ground(s) under section 212(h) of the INA, if you can show that either:
• You have a qualifying relative who is a U.S. citizen or lawful permanent resident of the United States; and
• Your qualifying relative would suffer extreme hardship on account of your ineligibility to immigrate; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.
In addition to the above requirements, if an applicant has been convicted of a violent or dangerous crime, USCIS will not waive the inadmissibility as a matter of discretion unless the individual can show an extraordinary circumstance, such as:
• One involving national security or policy considerations; or
• If the denial of your admission would result in exceptional and extremely unusual hardship.
Your application does not include sufficient evidence to establish that your qualifying relative spouse, your U.S.-born husband, [Name Withheld], would suffer extreme hardship if you are refused admission to the United States. Also, it has not yet been established that it would be an extreme hardship if your husband were to remain in the United States apart from you. And, it has also not yet been explained or established by your husband why it would be an extreme hardship for him to relocate outside of the United States to be with you and your infant daughter in South Korea. “Extreme hardship” is beyond that which normally does occur in any visa denial. Family separation and the loss of support, while undoubtedly difficult, are not, in and of themselves an “extreme hardship.”
Extreme hardship is not a term of”fixed and inflexible meaning”; establishing extreme hardship is “dependent upon the facts and circumstances of each case.” Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999). The Board of Immigration Appeals (BIA) in Matter of Cervantes-Gonzalez lists the factors it considers relevant in determining whether an applicant has established extreme hardship. The factors include :
• Presence of a lawful permanent resident or U.S. citizen spouse or parent in this country;
• Qualifying relative’s family ties outside the United States;
• 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;
• 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. ld. at 565-566.
The BIA indicated that these factors relate to the applicant’s “qualifying relative.” ld. at 565-566. In Matter of O-J-0-, 2 1 I&N Dec. 38 1, 383 (BIA 1996), the BIA stated that the factors to consider in determining whether extreme hardship exists “provide a framework for analysis,” and that the “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” It further stated that “the trier of fact must consider the entire range of factors concerning hardship in their totality” and then “determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” (citing Matter of lge, 20 I&N Dec. 880, S82 (BIA 1994 ).
Beyond simply responding to the Request for Evidence, we prepared an entirely new I-601 “extreme hardship” waiver, including a thorough legal and factual discussion of the extreme hardships relevant to this case. A detailed table of exhibits providing objective proof of every crucial assertion made in our waiver was also included, as it is with all of our waiver applications. Our I-601 waiver was subsequently approved in 11 days to the enormous relief of our clients.
In order to overcome the initial opinion of the USCIS, I initiated our firm’s comprehensive process for preparation of powerful and effective immigration waiver applications. I forwarded our Extreme Hardship Worksheet to my clients, which contains questions designed to elicit extreme hardships and other persuasive factors. I also recommended the couple to a clinical 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).
We made sure every single facet of their case was documented and that the objections raised by the USCIS in their Request for Evidence was fully addressed to maximize the chances of approval.
Once we identified the most important factors of the case, we prepared a comprehensive legal brief going over how the facts and circumstances of my client’s situation met the legal standards used to define “extreme hardship.”
We focused on the medical conditions of the U.S. citizen husband and his U.S. citizen mother, and how the U.S. citizen’s husband’s physical and psychological state would worsen in two scenarios: if he remained in the U.S. without his wife; or if he permanently re-located to South Korea to be with his wife, abandoning his ill U.S. citizen mother who has no one else to help care for her.
I also discussed and presented evidence of my client’s rehabilitation, good moral character, and her overall dedication as a wife and mother who is integral to the daily care of her ill U.S. citizen husband and their infant daughter.
The favorable factors in this case included the following:
- The U.S. citizen husband suffers from Generalized Anxiety Disorder and Dysthymic Disorder, both major mental disorders recognized by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition
- There is a long history of mental illness in the U.S. citizen husband’s family, especially with regard to his mother who has struggled with depression, manic depression, and anxiety most of her life.
- The U.S. citizen husband developed two medical conditions, allergic asthma and allergic rhinitis, due to the high levels of air pollution in South Korea.
- The U.S. citizen husband’s mother suffers from Stage 3 Lyme’s disease, as well as severe pain caused by fibromyalgia and degenerative disc disease of her spine. She also suffers from hypothyroidism caused by Hashimoto’s disease, a serious autoimmune disease. She has no one else to help take care of her aside from her son.
- The U.S. citizen husband’s mother desperately needs to take strong antibiotics to treat the Lyme disease that continues to spread throughout her body, but cannot risk the side effects from the drugs without her son living nearby to aid her should the side effects incapacitate her.
- The U.S. citizen husband and his South Korean wife do not earn enough to meet their monthly financial expenses. The U.S. citizen husband is thus unable to afford visits to the U.S. to take care of his mother as her physical and psychological state deteriorates.
As a result of our assistance, this I-601 waiver was approved and the family can now reside together in the U.S.