Smart Immigration Lawyer

212(d)(3) Non-Immigrant Waiver for E-2 Treaty Investor Visa Application Approved

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212(d)(3) Non-Immigrant Waiver for E-2 Treaty Investor Visa Application Approved

We received  approval for the 212(d)(3) non-immigrant waiver prepared on behalf of a client who was subject to the fraud/misrepresentation life-time bar pursuant to INA Section 212(a)(6)(C)(i).

Our client is the owner of a US start-up company which develops, markets, and operates cost-effective web and mobile applications for small-scale organizations.  He contacted my office to help him obtain approval of the 212(d)(3) non-immigrant waiver so that he could enter the U.S. as an E-2 Treaty Investor Visa Holder to direct and manage his start-up more effectively. 

We subsequently prepared a comprehensive 212(d)(3) non-immigrant waiver  in the form of a legal brief discussing the three legal factors set forth by Matter of Hranka, 16 I&N Dec. 491 (BIA 1978).

In the case, Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the Board of Immigration Appeals reversed a district director’s denial of a waiver application filed by a Canadian woman who had been deported for engaging in prostitution and admitted to previous heroin use.  She filed her application only two years after having been deported.  She requested entry to visit relatives and engage in various tourist activities.

In overturning the district director’s decision to deny the application, the BIA accepted as proof of rehabilitation letters from the applicant’s mother, and the principal of the high school the applicant had attended, who is a psychologist.  It held that the applicant’s reasons for entering the United States need not be compelling.  The BIA articulated three criteria for granting a waiver under INA 212(d)(3)

1.      The risks of harm in admitting the applicant;

2.      The seriousness of the acts that caused the inadmissibility; and

3.      The importance of the applicant’s reason for seeking entry.

Both Department of State and the Foreign Affairs Manual specify that any nonimmigrant may request a waiver as long as his or her presence would not be detrimental to the United States.  They provide that “while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” See 22 CFR 40.301 Foreign Affairs Manual (FAM) 40.301 N3.  Furthermore, the Admissibility Review Office has confirmed that it will follow and adhere to Matter of Hranka in adjudicating requests for INA 212(d)(3) waivers.

In our client’s case, we addressed each of the factors laid out by Matter of Hranka including but not limited to:

  • The non-existent risk of our client overstaying or violating the terms of an E-2 visa, given the substantial amount of capital already invested in his U.S. start-up; the revenues currently being generated by the company; large-order commitments by U.S. customers; our client’s personal history which demonstrates a truly dedicated focus on bring his product and company vision to fruition; as well as our client’s personal and financial ties to his home country (where he owns property, operates another company, and where all of his close family members reside)
  • An extensive set of mitigating factors as it relates to the violation that caused our client’s inadmissibility
  • Our client’s history of recognized leadership and accomplishments in business and technology, including a demonstrated commitment to public service and contributing towards a better civic society
  • A variety of positive factors unique to our client’s situation that clearly warranted favorable discretion on the part of the US consular officer and the Admissibility Review Office

Based upon these factors, our client was approved for the 212(d)(3) non-immigrant waiver by the Admissibility Review Office in Washington D.C., and subsequently, for the E-2 Treaty Investor Visa.  These types of cases are difficult to get approved due to the tendency of US consular officers to categorically reject non-immigrant visa applications with only a cursory review when a ground of inadmissibility is present.

Due to our extensive preparation of the waiver and careful lobbying undertaken to ensure its adequate consideration and review by the U.S. consulate, our client is now able to enter the United States and further the success of his promising technology-based start-up.

I-601 Waiver Approved for Multiple Convictions of Crimes Involving Moral Turpitude

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I-601 Waiver Approved for Multiple Convictions of Crimes Involving Moral Turpitude

The applicant is a citizen of India who was found inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of two separate crimes involving moral turpitude: robbery and theft.

The applicant sought a waiver of inadmissibility under section 212(h) of the Act in order to reside in the United States with his U.S. citizen spouse.

Section 212(a)(2)(A) of the Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien was released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of the application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

The Board of Immigration Appeals (BIA) held in Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992), that:

[M]oral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.. ..In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

Section 212(h) of the Act provides, in pertinent part, that:

(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E).-The Attorney General [now the Secretary of Homeland Security, “Secretary”] may, in [her] discretion, waive the application of subparagraphs (A)(i)(I) … of subsection (a)(2) if-

(B) in the case of,an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it established to the satisfaction of the [Secretary] that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.

(2) the [Secretary], in [her] discretion, and pursuant to such terms, conditions and procedures as [she] may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id . at 566.

The Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882). The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Id.

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

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

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

Some of the favorable factors that contributed to approval of this I-601 “extreme hardship” waiver for convictions of multiple crimes involving moral turpitude include the following:

  • The qualifying relatives for purposes of the I-601 waiver include the U.S. citizen spouse and two U.S. citizen children, all of whom reside in the United States
  • The U.S. citizen children are already developing behavioral problems due to separation from their father, including the youngest child refusing to eat and becoming critically underweight
  • The U.S. citizen wife has been diagnosed with psychological disorders, with a personal and family history of chronic illness and anxiety
  • The Indian husband’s income is not sufficient to support two households (his own and that of his family in the U.S.), and this is causing severe financial stress that is exacerbating the physical, psychological, and emotion state of the U.S. citizen wife and their children
  • The U.S. citizen wife suffers from a physical ailment, which only got worse during her attempted residence in India to be with her husband

Extreme hardship is a requirement for eligibility, but once established it is but one favorable discretionary factor to be considered. Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). For waivers of inadmissibility, the burden is on the applicant to establish that a grant of a waiver of inadmissibility is warranted in the exercise of discretion. Id. at 299. The adverse factors evidencing an alien’s undesirability as a permanent resident must be balanced with the social and humane considerations presented on his behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of this country. Id. at 300.  In Matter of Mendez-Moralez, in evaluating whether section 212(h)(1)(B) relief is warranted in the exercise of discretion, the BIA stated that:

The factors adverse to the applicant include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record and, if so, its
nature, recency and seriousness, and the presence of other evidence indicative of an alien’s bad character or undesirability as a permanent resident of this country . . . . The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where the alien began his residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this country’s Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value and service to the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien’s good character (e.g., affidavits from family, friends, and responsible community representatives). Id. at 301.

The BIA further states that upon review of the record as a whole, a balancing of the equities and adverse matters must be made to determine whether discretion should be favorably exercised. The equities that the applicant for relief must bring forward to establish that he merits a favorable exercise of administrative discretion will depend in each case on the nature and circumstances of the ground of exclusion sought to be waived and on the presence of any additional adverse matters, and as the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence. Id. at 301.

In this case, we also discussed and presented proof of every factor we determined to be important for purposes of securing approval of the I-601 waiver.  We determine these factors based upon close analysis of the clients’ personal situations as well as upon my experience of obtaining approval of I-601, I-212, I-601A, and 212(d)(3) waivers for the past 15 years.   These factors included but were not limited to:

  • A summary discussion of the convictions for crimes involving moral turpitude, as well as any extenuating circumstances that led to the violations and the corresponding the sentence received
  • The applicant’s employment for a prestigious multinational company
  • The applicant’s involvement in humanitarian efforts
  • The applicant’s acceptance at one of the most prestigious universities in the world for graduate-level study
  • Numerous sworn-affidavits by family, colleagues, and prominent officials in a position to judge the character and rehabilitation of the applicant

As a result of our efforts, the I-601 waiver was approved and this family now resides together lawfully inside the United States.

I-212 Waiver Approved for Nigerian B-1/B-2 Visa Applicant Subject to 5 Year Ban

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I-212 Waiver Approved for Nigerian B-1/B-2 Visa Applicant Subject to 5 Year Ban

Our client contacted my office after being expeditiously removed from the U.S. during his and his family’s attempted entry into the U.S. on valid B-1/B-2 visitor visas.  During inspection at the arriving port of entry, the CBP officer searched through their luggage and found children’s schoolbooks and school-related material as well as their medical records.

Our client informed the CBP officer that his wife and children planned to stay temporarily in the home of a relative while the Ebola epidemic was then a serious public health concern in Nigeria.  He informed the CBP officer that his wife and children would return back to Nigeria within 5 months.  Our client himself planned to return back to Nigeria within a few days to attend to businesses which he owns and operates in his home country.

The CBP officer determined that our client’s family did not overcome their presumption of immigrant intent and expeditiously removed them from the U.S.  My client subsequently contacted me because he needed to return to the U.S. to meet with business partners and customers and attend trade conventions that are vital to the operation and success of his enterprise.

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 who departed 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 national’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.

In support of our client’s I-212 waiver application, we prepared a comprehensive legal brief going over how the facts and circumstances of his situation met the legal standards used to adjudicate an I-212 waiver application for a B-1/B-2 non-immigrant visa applicant.  The legal standards discussed included those set forth by the Board of Immigration Appeals in its precedent decision, Matter of Tin.  

Just as importantly, we presented substantial evidence of our client’s significant and permanent ties to his home country in order to overcome the presumption of immigrant intent.  We discussed and provided proof of our client’s previous travels to the United States, Canada, the United Kingdom, and other countries of the European Schenhen Area.  We presented details of his previous travels to the United States on business, attending trade conventions and conferences at which he and the management team of his companies have obtained training in cutting-edge technologies, strategies, and methodologies in their industry sector; negotiated contracts; and initiated business contacts with prospective clients.

We further presented corporate documentation showing the formation, capital structure, and revenues of our client’s companies that are based in his home country of Nigeria; our client’s own personal savings, investments, property ownership, and financial snapshot of his net worth; as well the reasons why it is critically important for him to enter the U.S. now to facilitate expansion of new start-up businesses in Nigeria that he has full or majority ownership of.

Just some of the supporting exhibits that we submitted to prove important assertions made in the legal brief and overcome immigrant intent included:

  • Passports and Visas for the Entire Family
  • Certificates of Incorporation
  • Expenses for Business Trips Previously Made to US
  • Family Travel Itinerary for Past 5 Years
  • Comprehensive Presentation of our Client’s Business Interests
  • Proof of Property Ownership
  • Property Surveys
  • Current Cash Assets of Companies Fully-owned by our Client
  • Personal Savings Account Statement
  • Contracts with Business Clients
  • Extended Contracts Demonstrating Product Marketing and Strategic Planning
  • Purchase Orders for Equipment by Companies Owned by our Client
  • Government Authorization to Employ Foreign Employees in Nigeria
  • Contracts with Business Partners
  • Criminal Record Background Checks
  • Attestations from Attorney

I-212 waivers for non-immigrants residing outside the U.S. and applying for non-immigrant visas are generally submitted at the U.S. embassy or consulate with jurisdiction over the applicant’s place of residence.

Thus, this waiver was submitted to the U.S. consulate in Lagos.

The I-212 waiver we thoroughly prepared for our client was subsequently approved.  Our client is now able to freely travel to the United States to further expand his businesses and meet with customers, partners, and colleagues in his respective industrial field.

I-601 and I-212 Waivers Approved for Colombian Spouse of U.S. Military Veteran

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I-601 and I-212 Waivers Approved for Colombian Spouse of U.S. Military Veteran

Our office received approval of both the I-601 Waiver (Application for Waiver of Grounds of Inadmissibility) and I-212 Waiver (Application for Permission to Reapply for Admission) for the Colombian spouse of a U.S. citizen husband who is a veteran of the U.S. Armed Forces.

Our client lawfully entered the U.S. on a B-1/B-2 visitor visa when she was taken to the United States by her mother as a minor child.  She overstayed in the U.S. and was planning to leave the U.S. voluntarily with her mother when a deportation order was entered against her and her family.

She subsequently left from the U.S. to Colombia where she later met and fell in love with her U.S. citizen husband.

She was thus 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).

Keep in mind that combined I-601 and I-212 waiver submissions can only be submitted AFTER  the applicant is deemed inadmissible and denied an immigrant visa at his/her immigrant visa interview at a U.S. consulate or embassy.  It is therefore important to begin the waiver preparation process at least 3-4 months BEFORE such the consular interview is scheduled so that the waivers can be promptly submitted after the finding of inadmissibility by the consular officer.

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).

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.

In Matter of Tin, the BIA stated that in determining whether consent to reapply for admission should be granted, all pertinent circumstances relating to the application should be considered including: 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. The applicant’s family responsibilities; 8. Any inadmissibility to the United States under other sections of law; 9. hardship involving the applicant and others; 10. the need for the applicant’s services in the United States; and 11. whether the applicant has an approved immigrant or nonimmigrant visa petition.

In Matter of Lee, the BIA stated that INA 212(a)(9)(A)(iii) was intended to be remedial rather than punitive, explaining that the factor of “recency of deportation” can only be considered when there is a finding of poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience.

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.

For practical purposes, when the I-601 “Extreme Hardship” waiver is filed together with the I-212 Waiver, preparing a winning I-601 waiver application (by demonstrating extreme hardship to the qualifying relative and presenting a situation that warrants favorable discretion by the adjudicating officer) allows the applicant to also meet the standard for approval of the I-212 waiver.

In other words, if your I-601 waiver is approved, then the I-212 waiver will generally be approved as well.

”Extreme hardship,” for purposes of the I-601 Waiver, has a special meaning under U.S. immigration law.  The factors considered relevant in determining extreme hardship include:

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

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

We drafted a 20+ 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 husband is presently suffering from, and proved how they would worsen in the event of continued separation from his beloved wife.  We 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 includes the following:

  • The U.S. citizen husband is a veteran of the U.S. Armed Forces who served his country honorably.  USCIS has issued guidance giving preference to approval of I-601 waivers when the qualifying relative is a member of the U.S. Armed Forces or a veteran.
  • The U.S. citizen husband’s elderly mother has been diagnosed with non-Hodgkin’s lymphoma, for which she is receiving medical treatment.  We demonstrated that it is imperative for the U.S. citizen husband to remain inside the U.S. to give support and regular assistance to his mother during this difficult period.
  • The U.S. citizen husband suffers from psychological ailments, including anxiety, lack of sleep, lack of energy, general fatigue and other assorted ache and pain.  We showed that allowing this couple to reunite will provide the U.S. citizen husband the psychological, emotional, and fiscal stability needed to deal with the stressors in his life and sustain gainful employment. It will also allow him to continue to support his ailing mother, who suffers from cancer, and who faces an uncertain future.  We proved through a variety of objective evidence that the symptoms of these disorders have been greatly exacerbated by the mere possibility of long-term separation from his wife; and the inevitable, disastrous consequences that would result should such a separation continue.
  • The U.S. citizen husband is already experiencing extreme hardship.  We proved that being forced to provide subsistence payments to his family in Columbia places significant financial stress on the U.S. citizen husband.
  • The U.S. citizen husband cannot risk immigrating to Columbia to be with his spouse because of the personal risks such a move would create for him (most especially as ex-U.S. military), his inability to obtain employment in Columbia, and the wholly inadequate living, medical, and economic conditions to which he would be exposed.

Due to our efforts, our client was approved for both the I-212 waiver and I-601 waiver USCIS.  This family can now lawfully reside together inside the United States.

I-601 Waiver for Fraud / Willful Misrepresentation Approved for Filipino Spouse

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I-601 Waiver for Fraud / Willful Misrepresentation Approved for Filipino Spouse

We obtained approval of the I-601 Application of Waiver of Grounds of Inadmissibility for the Filipino husband of a U.S. citizen who was subject to a life-time bar for fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

INA Section 212(a)(6)(C)(i) states:

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.

Our client entered the U.S. lawfully on a valid non-immigrant visa, met his U.S. citizen spouse, and fell in love.  They have been married for 14 years. He returned to the Philippines to pursue his studies, planning to return to the U.S. after graduation.  He failed to disclose a prior marriage on his original visa application and was consequently charged with fraud / willful misrepresentation pursuant to INA Section 212(a)(6)(C)(i) and deemed inadmissible at his immigrant visa interview.

I was contacted by the clients to assist them in preparing and obtaining approval of the I-601 waiver after the finding of inadmissibility by the U.S. embassy in Manila, Philippines.

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.

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id . at 566.

The Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 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.” Id.

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

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

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

We prepared a comprehensive I-601 waiver application including a 29 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship.”

In particular, this includes the day-to-day care that the U.S. citizen spouse provides to her elderly mother, who suffers from diabetes, hypertension, and arthritis.  The U.S. citizen spouse lives with her elderly mother and they are each dependent on one another to oversee and manage the medical care they both vitally need.  Although the elderly mother of the U.S. citizen is not a qualifying relative per se under the INA Section 212(i), her well-being is intimately tied to that of the U.S. citizen spouse (who is the qualifying relative) and was thoroughly presented in our brief.

To provide more detail – should the U.S. citizen spouse be forced to re-locate to the Philippines to be with her husband, her elderly mother would lose her primary support giver.  This could be potentially life-threatening to her elderly mother given her fragile state; and such an event would traumatically affect the psychological and physical health of the U.S. citizen spouse which is already compromised.  Alternatively, should the U.S. citizen spouse have to remain in the U.S. without the support of her husband, her personal condition would likewise continue to deteriorate, affecting the welfare of two U.S. citizens who desperately need the presence and support of the waiver applicant in their lives.  In these types of scenarios, it is always important to present and prove the hardships of close relatives whose well-being are intimately tied to that of the qualifying relative; and demonstrate how both parties would be impacted by the immigration consequences of their situations.

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this couple now reside lawfully in the U.S. together once again after a separation of more than 9 years apart.

I-601 Waiver for Prostitution Approved for Wife of U.S. Citizen from Thailand

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I-601 Waiver for Prostitution Approved for Wife for U.S. Citizen from Thailand

Our office received approval of the I-601 Waiver (Application for Waiver of Grounds of Inadmissibility) for the Thai spouse of a U.S. citizen who was found inadmissible to the United States after being charged with engaging in prostitution due to her previous employment as a masseuse at a massage spa in Thailand.

The U.S. embassy in Bangkok, Thailand is well-known for engaging in rigorous consular interviews – conducting both procedural (checking a computerized database) and investigative checks on its applicants, and vigorously charging applicants with inadmissibility if they suspect certain types of conduct.

The U.S. citizen spouse contacted my office after his Thai spouse was charged with having engaged in prostitution in the past during her immigrant visa interview and deemed inadmissible to the United States pursuant to INA Section 212(a)(2)(D).

Section 212(a)(2)(D) of the Immigration and Nationality Act states:

(D) Prostitution and commercialized vice.-Any alien who-

(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,

(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10- year period) received, in whole or in part, the proceeds of prostitution, or

(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution, is inadmissible.

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.

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).

We prepared a comprehensive 34-page legal brief going over how the facts and circumstances of my clients’ situation met the legal standards used to define “extreme hardship”; thoroughly demonstrated “rehabilitation” of the Thai spouse; and showed that the Thai spouse’s admission would “not be contrary to the national welfare, safety, or security of the U.S.”  

As with all of our waiver cases, 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 spouse which substantially impairs his ability to function in everyday life.  The psychological disorders are being being aggravated by the prolonged separation of the couple and the unique circumstances of their individual and collective lives.
  • Significant health issues suffered by the U.S. citizen spouse, including a pulmonary embolism in the past, which now requires regular medical check-ups and the taking of medication for the rest of his life
  • A serious medical condition suffered by the Thai spouse, which requires extremely complicated and high-risk surgery to correct.  Such  surgery is very difficult to obtain from a qualified surgeon in Thailand and complications from the surgery could include nerve damage and infertility.  This situation adds to the mental distress being experienced by the U.S. husband.
  • The U.S. citizen husband is financially responsible for three households: his own, his wife’s, and that of his wife’s parents.  Becoming incapacitated due to his various ailments would lead to financial collapse for the U.S. citizen husband as well as that of his extended family.
  • The U.S. citizen husband has served multiple long-term tours abroad in a civilian position to support the U.S. military in its “War on Terror.”  He has only recently re-united with his family in the U.S. and cannot bear the thought of leaving the U.S. once again.  He also does not speak Thai and would have no means for supporting himself financially in Thailand.
  • Country conditions of Thailand would make it difficult for the U.S. citizen husband to receive the standard of medical care he now receives in the U.S.  The current state of Thai medical care also makes it very difficult for his wife to receive the type of specialized surgery she needs for her serious condition.
  • Evidence of rehabilitation of the Thai spouse includes 14 affidavits of good moral character from members of her family; a Buddhist monk; a local government official; prominent members of the business community; and many others who can attest to her honesty, dedication to family, and character.  It also includes her complete honesty during her consular interview; her history of having studied massage therapy (including evidence of schooling in the field); and the reason for her employment at the massage parlor (which was to financially support her impoverished parents).

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 spouse herself (the waiver applicant), would in turn impact the U.S. citizen 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 waiver applicant plays an integral role in the overall well-being of the U.S. citizen and is needed to assume a vital, day-to-day role in his physical, emotional, and psychological care and oversight.

As a result of the I-601 “prostitution waiver” expeditiously prepared and submitted by my office, the I-601 waiver application was approved by the USCIS.  The couple now happily reside together inside the U.S.

Exercise of Discretion by the USCIS Officer on Immigrant Waivers

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Exercise of Discretion by the USCIS Officer on Immigrant Waivers

If an immigrant waiver applicant meets all other statutory and regulatory requirements of a waiver, the USCIS officer must determine whether to approve the waiver as a matter of discretion. 

If the applicant does not meet another statutory requirement of the waiver, USCIS denies the waiver and a discretionary analysis is not necessary.

However, an officer may still include a discretionary analysis if the applicant’s conduct is so egregious that a discretionary denial would be warranted even if the applicant had met the other statutory and regulatory requirements.  Adding a discretionary analysis to a denial is considered useful if an appellate body on review disagrees with the officer’s conclusion that the applicant failed to meet the statutory requisites for the waiver.

According to the USCIS Policy Manual up-to-date as of August 23, 2017, meeting the other statutory and regulatory requirements of an immigrant waiver alone does not entitle the applicant to relief. See Reyes-Cornejo v. Holder, 734 F.3d 636 (7th Cir. 2013). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999). See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

The discretionary determination is the final step in the adjudication of a waiver application. The applicant bears the burden of proving that he or she merits a favorable exercise of discretion. See Matter of De Lucia, 11 I&N Dec. 565 (BIA 1966). See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957).

We consider the exercise of discretion by the adjudicating USCIS officer to be an essential part of any waiver approval that my office has obtained on behalf of our clients for the past 15 years.  Consequently, I always make sure to include every favorable factor from our client’s lives and backgrounds, that in our experience, have proven significant and pivotal in the approval of immigrant (and non-immigrant waivers) for our clients.

The legal basis for the exercise of discretion in immigrant waiver applications commonly filed by my office is highlighted below:

  1. The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in 8 CFR 212.7(e) and warrant a favorable exercise of discretion.
  2. 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:
    1. has a parent, spouse, son, or daughter who is a U.S. citizen or lawful permanent resident of the United States; and
    2. the parent, spouse, son, or daughter would suffer “extreme hardship” on account of the alien’s ineligibility to immigrate
    3. 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.
  3.  INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) authorizes the Secretary to waive the 3- and 10-year unlawful presence bars for individuals seeking admission to the United States as immigrants if they can show that the refusal of admission would result in extreme hardship to a qualifying U.S. citizen or LPR spouse or parent, and provided that the applicant warrants a favorable exercise of discretion. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

The below details some of the discretionary factors relevant to the waiver adjudication as set for by the USCIS Policy Manual:

Non-Exhaustive List of Factors that May Be Relevant in the Discretionary Analysis

CategoryFavorable FactorsUnfavorable Factors
Waiver Eligibility• Meeting certain other statutory requirements of the waiver, including a finding of extreme hardship to a qualifying family member, if applicable. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996) (relating to a criminal waiver under INA 212(h)(1)(B)). See Matter of Marin, 16 I&N Dec. 581 (BIA 1978) (relating to an INA 212(c) waiver). See Matter of Tijam, 22 I&N Dec. 408 (BIA 1998) (relating to a fraud or misrepresentation finding (INA 212(a)(6)(C)(i)) and the discretionary waiver under former INA 241(a)(1)(H) [renumbered as INA 237(a)(1)(H) by IIRIRA]).

• Eligibility for waiver of other inadmissibility grounds.		Not applicable – Not meeting the statutory requirements of the waiver results in a waiver denial. A discretionary analysis is not necessary.
Family & Community Ties• Family ties to the United States and the closeness of the underlying relationships.

• Hardship to the applicant or to non-qualifying lawful permanent residents (LPRs) or U.S. citizen relatives or employers.

• Length of lawful residence in the United States and status held during that residence, particularly where the applicant began residency at a young age.

• Significant health concerns that affect the qualifying relative.

• Difficulties the qualifying relative would be likely to face if the qualifying relative moves abroad with the applicant due to country conditions, inability to adapt, restrictions on residence, or other factors that may be claimed.

• Honorable service in the U.S. armed forces or other evidence of value and service to the community.

• Property or business ties in the United States.		Absence of community ties.
Criminal History & Moral Character (or both)• Respect for law and order, and good moral character, which may be evidenced by affidavits from family, friends, and responsible community representatives.

• Reformation of character and rehabilitation.

• Community service beyond any imposed by the courts.

• Considerable passage of time since deportation or removal.		• Moral depravity or criminal tendencies reflected by an ongoing or continuing criminal record, particularly the nature, scope, seriousness, and recent occurrence of criminal activity.
 
• Repeated or serious violations of immigration laws, which evidence a disregard for U.S. law.

• Lack of reformation of character or rehabilitation.

• Previous instances of fraud or false testimony in dealings with USCIS or any government agency.

• Marriage to a U.S. citizen or LPR for the primary purpose of circumventing immigration laws.

• Nature and underlying circumstances of the inadmissibility ground at issue, and the seriousness of the violation
Public safety or national security concerns
OtherAbsence of significant undesirable or negative factors.Other indicators of an applicant's bad character and undesirability as a permanent resident of this country.

Discretionary Factors

The officer must weigh the social and humanitarian considerations against the adverse factors present in the applicant’s case.  See Matter of De Lucia, 11 I&N Dec. 565 (BIA 1966). See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957). The approval of a waiver as a matter of discretion depends on whether the favorable factors in the applicant’s case outweigh the unfavorable ones. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

Discretionary Determination

When making a discretionary determination, the officer should review the entire record and give the appropriate weight to each adverse and favorable factor.  Once the officer has weighed each factor, the officer should consider all of the factors cumulatively to determine whether the favorable factors outweigh the unfavorable ones. If the officer determines that the positive factors outweigh the negative factors, then the applicant merits a favorable exercise of discretion.

Example

A lengthy and stable marriage is generally a favorable factor in the discretionary analysis. On the other hand, the weight given to any possible hardship to the spouse that may occur upon separation may be diminished if the parties married after the commencement of removal proceedings with knowledge of an impending removal.  In particular, if a finding of extreme hardship is a statutory eligibility requirement, the finding of extreme hardship permits, but does not require, a favorable exercise of discretion. Once extreme hardship is found, extreme hardship becomes a factor that weighs in favor of granting relief as a matter of discretion.

Example

In general, when reviewing an applicant’s employment history, an officer may consider the type, length, and stability of the employment. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996). See Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992).

Example

In general, when reviewing an applicant’s history of physical presence in the United States, the officer may favorably consider residence of long duration in this country, as well as residence in the United States while the applicant was of young age. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

Example

When looking at the applicant’s presence in the United States, the officer should evaluate the nature of the presence. For example, a period of residency during which the applicant was imprisoned may diminish the significance of that period of residency. See Diaz-Resendez v. INS, 960 F.2d 493 (5th Cir. 1992).

Cases Involving Violent or Dangerous Crimes

If a foreign national is inadmissible on criminal grounds involving a violent or dangerous crime, an officer may not exercise favorable discretion unless the applicant has established, in addition to the other statutory and regulatory requirements of the waiver that:

  • The case involves extraordinary circumstances; or
  • The denial would result in exceptional and extremely unusual hardship. See Douglas v. INS, 28 F.3d 241 (2nd Cir. 1994).

Extraordinary circumstances involve considerations such as national security or foreign policy interests.  Exceptional and extremely unusual hardship is substantially beyond the ordinary hardship that would be expected as a result of denial of admission, but it does not need to be so severe as to be considered unconscionable. See INA 212(h). See 8 CFR 212.7(d). See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (relating to a waiver of inadmissibility granted in connection with INA 209(c), refugee or asylee adjustment of status).  Depending on the gravity of the underlying criminal offense, a showing of extraordinary circumstances may still be insufficient to warrant a favorable exercise of discretion. See Matter of Monreal, 23 I&N Dec. 56 (BIA 2001).

I-601 “Extreme Hardship” Waiver Approved after Comprehensive Request for Evidence (RFE) Response

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I-601 "Extreme Hardship" Waiver Approved after Comprehensive Request for Evidence (RFE) Response

I was contacted by a couple after their I-601 “extreme hardship” waiver application (prepared and filed by another law firm) was deemed insufficient for approval of their I-601 waiver.  The waiver applicant from Turkey previously overstayed in the United States by more than one year due to a misunderstanding of how long his authorized period of stay was granted for.  He later departed the U.S. due to a family emergency.  While abroad, he married his U.S. citizen fiancee and attempted to return to the United States, whereupon he was informed that he was subject to the 10 year unlawful presence bar.

The couple retained our law firm to prepare a thorough response to the Request for Evidence (RFE) issued by the USCIS.  We prepared a comprehensive 29 page response to the Request for Evidence (RFE), addressing each of the issues raised by the USCIS and providing supporting documentation to objectively prove every important assertion made in our response.

The Request for Evidence issued by the USCIS is instructive to examine in more detail as it shows the level of detail and preparation needed to obtain approval of an I-601 waiver.  Relevant portions of the RFE is provided below:

You have been found inadmissible to the United States under Section 212(a)(9)(8) of the Immigration and Nationality Act (INA) because you had previously been unlawfully present in the United States in excess of either 180 days, or for one year or more.

To be eligible for a waiver under section 212(a)(9)(B)(v) of the INA, you must show that:

  • You have a U.S. citizen or lawful permanent resident spouse or parent or a U.S. citizen fiance(e) who petitioned for your K visa who would experience extreme hardship if you were denied admission, and
  • Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

Your application does not include sufficient evidence that your qualifying relative spouse would suffer extreme hardship if you are refused admission to the United States.

Although it appears your qualifying relative spouse is experiencing some type of hardship; we are unable to determine whether or not the hardship rises to the level of extreme hardship. An affidavit is not enough to establish extreme hardship because it lacks sufficient detail, is general in nature, and is absent accompanying documentation. The evidence should explain how the hardship is greater the common results of family separation due to a visa refusal.

An affidavit was not submitted by your qualifying relative spouse.  Therefore we do not have enough evidence to establish extreme hardship to your qualifying relative spouse.  Provide evidence to explain why it would be an “extreme hardship” for your qualifying relative spouse to be absent your financial support as well as evidence of any emotional problems you are experiencing that would rise to the level of an “extreme hardship” if you were not allowed to relocate to the U.S.  ln his affidavit he says that you will struggle on several levels; however, you did not submit any proof of financial obligations, a breakdown of your income and expenses and more detail of the hardship.

Absent from the record is an explanation of how traveling to visit you would rise to the level of an  “extreme hardship”.

The evidence does not indicate that your qualifying relative spouse is facing any one hardship that is extreme (in and of itself). It also does not establish that there are sufficient hardships (cumulatively) that would rise to the level of extreme in the aggregate. (If your spouse is facing additional hardships, please submit evidence of them.)

Note: Extreme Hardship is required for the approval of Form 1-601, not just hardship. Extreme hardship is a hardship that is unusual or beyond that which would normally be expected upon removal or exclusion.

Factors USCIS considers when determining extreme hardship include but are not limited to:

  • Health – Ongoing or specialized treatment required for a physical or mental condition; availability and quality of such treatment in the country to which removed; anticipated duration of the treatment; chronic vs. acute vs. 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 care for family members (elderly and sick 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 or grade; availability of special requirements, such as training programs or internships in specific fields.
  • Personal Considerations – Close relatives in the United States and country of removal; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
  • Special Factors – Cultural, language, religious. and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures (official or unofficial) for support, guidance, or protection.

1) Please submit a statement explaining in detail the hardships your qualifying relative would experience if you are denied admission to the United States. The statement should explain how the hardship is greater than the common results of family separation due to a visa refusal.

2) Please submit evidence to support the statements made. Such evidence may include but is not limited to:

  • Affidavits from the qualifying relative or other individuals with personal knowledge of the claimed hardships
  • Expert opinions
  • Evidence of employment or business ties such as payroll records or tax statements
  • Evidence of monthly expenditures such as mortgage, rental agreement, bills and invoices. etc.
  • Other financial records supporting any claimed financial hardships
  • Medical documentation and/or evaluations by medical professionals supporting any claimed medical hardships
  • Records of membership in community organizations, volunteer confirmation, and evidence of cultural affiliations
  • Birth/marriage/adoption certificates supporting any claimed family ties
  • Country condition reports
  • Any other evidence you believe supports the claimed hardships

Please note that USCIS will only consider hardships that affect the qualifying relative(s) upon which you are basing your eligibility. If you describe hardship to yourself or another individual, you must also explain how those factors affect the qualifying relative(s).

Your application does not include sufficient evidence that a favorable exercise of discretion is warranted in your case.

3) Please submit a statement explaining the favorable factors of your case and why you believe the favorable factors outweigh unfavorable factors in your case (including the initial inadmissibility finding).

4) Please submit any evidence to support your statement.

Favorable factors may include, but are not limited to:

  • Family ties in the United States and the closeness of the underlying relationships
  • Unusual hardship to yourself or to U.S. citizen or lawful permanent resident relatives and employers
  • Evidence of reformation and rehabilitation
  • Length of lawful residence in the United States and status held during that residence (particularly where the applicant began his or her residency at a young age)
  • Evidence of respect for law and order, good moral character, and intent to hold family responsibilities (such as affidavits from family, friends, and responsible community representatives)
  • Considerable passage of time since the activities occurred which were the basis of the inadmissibility finding
  • The absence of significant undesirable or negative factors

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id . at 566.

The Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 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.” Id.

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

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

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

As part of our response to the USCIS-issued Request for Evidence (RFE), we demonstrated that the US citizen suffers from both physical and psychiatric disorders that significantly impairs her daily functioning at home, work, and in the community.  We also highlighted the fact that she has suffered from psychiatric disorder since childhood, with a long history of anxiety, depression, and substance abuse, which also runs in her family.

We showed how the U.S. citizen is at serious risk of lapsing back into substance abuse without the daily physical, emotional, and psychological support provided by her husband.  We also analyzed her household income, expenses, and debt, and showed the financial disaster she would suffer should she be forced to relocate to her husband’s home country of Turkey; or alternatively, remain in the U.S. without her spouse and be subject to the inevitable consequences of her worsening psychological and physical health without his daily support.  We also presented a detailed country conditions report of Turkey, demonstrating how the specific circumstances of our client’s health, financial status, and background would be impacted by her possible re-location to Turkey.

As a result of our efforts in responding to a very difficult Request for Evidence (RFE), this I-601 waiver was approved and the couple now reside lawfully inside the U.S.

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