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.