Adjustment of Status

Client Approval: I-601 Waiver for Fraud/Misrepresentation Approved for Same-Sex Couple

March 2, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a Chinese client who was subject to the fraud/misrepresentation ground of inadmissibility under INA Section 212(a)(6)(C)(i). He previously misrepresented the nature of his relationship with his same-sex partner during his application for a F-1 student visa. He did so because he feared that his same-sex relationship might become known to the Chinese government if it was disclosed to the US Dept. of State.

After entering the U.S. as an international student on a validly approved F-1 visa, he married his partner and applied for adjustment of status to permanent residence. The couple was denied at their adjustment of status interview when the facts of the prior misrepresentation became known to the interviewing USCIS officer. The same-sex couple contacted my office at that point to prepare their I-601 “Extreme Hardship” waiver and submit it on their behalf.

An I-601 Application for Waiver pursuant to INA Section 212(i) requires a showing that the applicant’s U.S. citizen spouse or parent would suffer “extreme hardship” if the applicant is refused admission into the United States.

”Extreme hardship” has a special meaning under U.S. immigration law. The factors considered relevant in determining extreme hardship include:

Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.

Financial considerations: future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children; cost of caring for family members (i.e., elderly and infirm parents).

Education: loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time in grade; availability of special requirements, such as training programs or internships in specific fields.

Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.

Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.

Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

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

In support of this couple’s I-601 waiver application, my office prepared a comprehensive 24-page legal brief going over how the facts and circumstances of the couple’s situation met the legal standards used to define “extreme hardship.” We also discussed and presented evidence of the special circumstances same-sex couples are subject to, including the discrimination, harassment, and intimidation of LGBT individuals in China. A table of exhibits also listed a variety of evidence in support of a showing of “extreme hardship” including:

Psychological evaluation by a clinical psychologist verifying the Generalized Anxiety Disorder and Dysthymic Disorder suffered by the U.S. citizen spouse, as well the critical emotional and psychological support provided by the foreign spouse (the waiver applicant)
The cultural and psychological background of the U.S. citizen spouse, including a substantial history of serious mental illness in his immediate family; and a life-long history of shame and loneliness due to his inability to come out to his friends and family
Medical confirmation of the debilitating physical symptoms suffered by the US citizen spouse including severe back pain, fatigue, and insomnia
A detailed discussion (substantiated by credible evidence) of the status of LGBT individuals in China and the repercussions this couple may suffer if they re-locate to China in order to be together
A detailed discussion (substantiated by credible evidence) of the lack of adequate mental health services in China and its potential impact on the US citizen spouse if he were to re-locate to China
A detailed breakdown of household expenses and debts, demonstrating the financial catastrophe that would result should the U.S. citizen spouse be unable to remain healthy and continue his professional work
The good moral character and rehabilitation of the applicant including the specific circumstances and motivation that led to the misrepresentation

As a result of our efforts, our client was approved for the I-601 waiver within 1 month of submission of the waiver by my office. The applicant was also subsequently approved for lawful permanent residence and now resides together with his spouse inside the U.S.

K-1 Fiancee Visa and Adjustment of Status Approved – Client Review by Robert Hanshew

February 17, 2015 By Michael Cho Immigration Lawyer Leave a Comment

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

Mr.Cho, Just would like to thank you for our success in bringing my girls both home to me, via, K-1 Visa and US Citizen born abroad.. and, our latest adjustment of status (after marriage) In the case of Hanshew-Padios we are very grateful to you..We shall be using you’re services again this year to remove the conditions on my wife’s permanent resident status. Best wishes to you and yours in 2015 (the year of the Ram)

-Robert Hanshew

Parole In Place and the I-601 Waiver or I-601A Provisional Waiver

November 15, 2013 By Michael Cho Immigration Lawyer Leave a Comment

The USCIS has release a policy memorandum concerning the parole of spouses, children and parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve.

INA § 212(d)(5)(A) gives the Secretary the discretion, on a case-by-case basis, to “parole” for “urgent humanitarian reasons or significant public benefit” an alien applying for admission to the United States. Although it is most frequently used to permit an alien who is outside the United States to come into U.S. territory, parole may also be granted to aliens who are already physically present in the U.S. without inspection or admission. This latter use of parole is sometimes called “parole in place.”

The basic authority for parole in place is INA § 212(d)(5)(A), which expressly grants discretion to parole “any alien applying for admission to the United States.” INA § 235(a)(1), in turn, expressly defines an applicant for admission to include “an alien present in the United States who has not been admitted.”

According the new policy memorandum issued by the USCIS:

“As noted above, the decision whether to grant parole under INA § 212(d)(5)(A) is discretionary. Generally, parole in place is to be granted only sparingly. The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, however, ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual. If USCIS decides to grant parole in that situation, the parole should be authorized in one-year increments, with re-parole as appropriate.”

Thus, for an alien who entered without inspection, a grant of parole under INA § 212(d)(5)(A) affects at least two of the eligibility requirements for adjustment of status. First, adjustment of status requires that the person be “admissible.” INA § 245(a)(2). Parole eliminates one ground of inadmissibility, section 212(a)(6)(A)(i). Second, adjustment of status requires that the alien have been “inspected and admitted or paroled.” INA § 245(a). The grant of parole under INA § 212(d)(5)(A) overcomes that obstacle as well.

The alien must still, however, satisfy all the other requirements for adjustment of status. One of those requirements is that, except for immediate relatives of United States citizens and certain other individuals, the person has to have “maintain[ed] continuously a lawful status since entry into the United States.” INA § 245(c)(2). Parole does not erase any periods of prior unlawful status.

Consequently, an alien who entered without inspection will remain ineligible for adjustment, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exemptions. Moreover, even an alien who satisfies all the statutory prerequisites for adjustment of status additionally requires the favorable exercise of discretion.

The practical effect of this memorandum is that immediate relatives of active or former members of the U.S. Armed Forces (or Selected Reserve of the Ready Reserve), who entered the U.S. “illegally” (without inspection or parole), can apply for adjustment of status inside the United States once parole in place has been granted. They no longer need to travel back to their home country to consular process for their permanent residence. This also means that the I-601A Provisional Waiver, or I-601 Extreme Hardship Waiver, is no longer required for this group of applicants, who would have been subject only to the unlawful presence ground of inadmissibility upon departure from the U.S.

Keep in mind that the I-601 waiver may still be required as part of the adjustment of status process for those subject to other grounds of inadmissibility, such as fraud/misrepresentation or conviction of a crime of moral turpitude.

I-601A Provisional Waiver May Not be Required for Some DACA Recipients

October 24, 2013 By Michael Cho Immigration Lawyer 2 Comments

The Legal Action Center has released a report which confirms a positive development for some DACA recipients who previously had only the option of applying for lawful permanent residence through the I-601A Provisional Waiver process. I excerpt the relevant portions below:

“On June 15, 2012, the Secretary of the United States Department of Homeland Security (DHS) issued a memorandum allowing individuals who entered the United States before turning sixteen and who meet certain guidelines to pursue Deferred Action for Childhood Arrivals (DACA). One of the benefits of DACA is that the recipient may seek permission to travel abroad temporarily for humanitarian, educational, or employment purposes. A DACA recipient who seeks to temporarily leave and re-enter the United States must apply for advance parole. If a DACA recipient travels abroad and returns under a grant of advance parole, then s/he is “paroled” into the United States within the meaning of INA §245(a), and may qualify for adjustment of status.”

“In Matter of Arrabally and Yerrabelly, the Board held that travel on advance parole does not constitute a “departure” for purposes of the 10-year-bar for unlawful presence under INA § 212(a)(9)(B)(i)(II). While Matter of Arrabally and Yerrabelly addressed advance parole in the context of adjustment applications, the USCIS Administrative Appeals Office (AAO) has since applied this analysis in at least several cases involving individuals holding Temporary Protected Status (TPS), each of whom left temporarily following the accumulation of more than one year of unlawful presence and then returned to the United States under advance parole. Based on Matter of Arrabally and Yerrabelly, the AAO found that these applicants were not inadmissible and that waivers of inadmissibility were not necessary.

Although there has been no formal written guidance on this issue yet, it appears likely that USCIS views Matter of Arrabally and Yerrabelly as applicable to DACA recipients traveling on advance parole. Indeed, some DACA recipients have received advance parole authorizations (Form I-512L) explicitly stating that traveling abroad under advance parole is not a departure within the context of INA § 212(a)(9)(B), pursuant to Matter of Arrabally and Yerrabelly.”

Thus, advance parole may make some DACA recipients gain the dual benefit of eliminating exposure to the 3 or 10 year unlawful presence bars they are subject to pursuant to INA § 212(a)(9)(B); and gaining eligibility for adjustment of status, thereby eliminating the need to consular process through the U.S. embassy in their home country.

This positive development ONLY applies for DACA recipients who are the spouses of U.S. citizens or children (unmarried and under 21 years of age) of U.S. citizen parents, who are not subject to any other grounds of inadmissibility (aside from the 3 or 10 year unlawful presence bar under INA § 212(a)(9)(B)). This group may no longer need to apply for lawful permanent residence through the I-601A Provisional Waiver process. Instead, they can now apply for advance parole; depart from the U.S.; and re-enter the country to proceed with their adjustment of status to lawful permanent residence within the United States.

Keep in mind that the inspecting immigration officer at the port of entry may deny entry into the United States if the officer finds that any of the inadmissibility grounds apply. Thus, even after being granted advance parole as a DACA recipient, you should make absolutely sure you are not subject to any of the other grounds of inadmissibility before departure from the U.S.

For example, there should be no outstanding orders of removal on file. You should not be subject to previously incurred immigration bars, such as the unlawful presence bars under INA § 212(a)(9)(B) or the permanent bar under INA § 212(a)(9)(C), based a prior departure before obtaining advance parole. You should not be subject to the criminal grounds of inadmissibility under INA § 212(a)(2) or for fraud/misrepresentation under INA § 212(a)(6)(C). It is important that an immigration lawyer with particular expertise in waivers and the immigration grounds of inadmissibility guide you through this process. Matter of Arrabally and Yerrabelly is not a precedent decision and you must proceed with caution.

Adjustment of Status Approved – Client Review by Frank D.

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

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

Our family used Michael’s counsel several years back for adjustment of status.

We weren’t going the route of those big name firms, loudly advertising on various media channels every 10 minutes. Other acquaintances reported of signing on with these firms, but complained they always felt they were an anonymous case, dealing with revolving paralegals time and again. Theirs were nightmares of being stuck in legal limbo for years — not making any progress at all, but that retainer still had to be renewed and paid. I definitely wasn’t taking my family that route.

After canvassing and interviewing many immigration law firms, all I can visualize on the other end of the receiver each time were cartoony dollar signs talking *at* me. I stopped when I reached Michael S. Cho. I didn’t hear the usual mumbo jumbo, his timeline was sensible and clear, and his up-front price seemed fair. After I checked out his pedigree (University of Chicago Law School) and read his other reviews, we decided to go with Michael S. Cho.

I cannot impress more how appreciative and grateful we were of how Michael managed our case. Michael is an adroit communicator and demonstrated a great deal of knowledge with current legislation. He stuck with the original timeline (less than a year), and was very responsive with all of our queries along the way. I usually received a response from him within 24 hours. And even better yet, I never spoke to a paralegal or an associate attorney; we dealt with our attorney, Michael S. Cho, directly each time. Not once did I ever feel that we were churning in some legal mill of a money pit.

It may sound oxymoronic — but I gathered that Michael S. Cho is an honestly decent immigration attorney. We never felt that he was beating around the bush or holding us out for even more money. Though we mainly communicated via phone and email, I always felt Michael exemplified good qualities of integrity and that he always treated us with dignity. He did the job, and he’s *very good* at what he does. Suffice to say, I highly recommend him now to friends and acquaintances when appropriate.

By Frank D. in San Francisco, CA

U.S. immigration benefits for same-sex legally married couples

July 3, 2013 By Michael Cho Immigration Lawyer Leave a Comment

Effective immediately after the U.S. Supreme Court decision holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, immigration visa petitions filed on behalf of a same-sex legally married spouse shall be reviewed in the same manner as those filed on behalf of an opposite-sex spouse.

Practically, this means that a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national may now sponsor his or her spouse for a family-based immigrant visa. U.S. citizens may also file for a K-1 Fiance Visa on behalf of their same-sex fiance. Further guidance from the USCIS is expected as it implements regulations to comply with the U.S. Supreme Court decision.

USCIS may waive interviews for certain adjustment of status applications

June 23, 2013 By Michael Cho Immigration Lawyer Leave a Comment

Pursuant to 8 CFR §245.6, the USCIS may waive interviews for certain adjust of status applications to be determined on a case-by-case basis. This was confirmed during a recent liaison meeting between representatives of the American Immigration Lawyers Association and the National Benefits Center. The cases where interviews may be waived based on standards set at the national level are petitions involving:

Unmarried minor children and stepchildren of U.S. citizens (IR7 and CR7) that are accompanied by original or certified copies of supporting documents;
Parents of U.S. citizens (IR0) that are accompanied by original or certified copies of supporting documents;
K1/K2 entrants— Fiancé(e)s of U.S. citizens and children of Fiancé(e)s (CF1/CF2);
Natives/Citizens of Cuba filing under 11/2/66 Act (also spouses/children of such individuals regardless of their citizenship and place of birth) (CU6/CU7);
Unmarried & Under 14 year old children of lawful permanent residents (F27);
Cases where the applicant has been interviewed in the course of an investigation or field examination, and the adjudicating examiner determines that further interview of the applicant is unnecessary;
Cases in which there is sufficient evidence contained in the record to support a denial of the adjustment of status application.

Please note that the NBC will NOT waive the interview for applicants who file:

With Supplement A to Form I-485, Adjustment of Status Under Section 245(i)
With an EWI class of admission
As part of a family packet; unless every application in the family packet meets the interview waiver criteria.

USCIS Lockbox Filing Tip

June 23, 2013 By Michael Cho Immigration Lawyer Leave a Comment

The USCIS Lockbox Facilities where immigration petitions are filed advises that exhibit tabs used by applicants are discarded before the filing reaches an officer for adjudication. Additionally, colored page dividers are sometimes moved to the back of the filing before the file reaches an officer for adjudication.

If exhibits are critical to the petition, such as EB-1 cases or waivers, the lockbox recommends that applicants annotate each page of their supporting documentation with the exhibit number and page number at the bottom of the page (for example “Exhibit #, Page # of #”).

This helps ensure that adjudicating officer can easily refer to the appropriate documents and pages outlined in the petition. In addition, it may be helpful to cross reference the exhibits in the employer support letter, attorney brief, or other similar submissions. A master “Exhibit List” may also be helpful in organizing petitions with extensive supporting documentation.

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