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Client Approval: I-601 Prostitution Waiver, I-601 Fraud Waiver, and I-212 Removal Waiver Approved for South Korean Client

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Client Approval: I-601 Prostitution Waiver, I-601 Fraud/Misrepresentation Waiver, and I-212 Waiver for Expedited Removal Approved for South Korean Client

Our office received approval of both the I-212 Waiver (Application for Permission to Reapply for Admission) and I-601 Waiver (Application for Waiver of Excludability) for the South Korean spouse of a U.S. citizen.  The South Korean wife was found inadmissible to the United States based on having admitted to previously engaging in prostitution in the United States; having committed fraud/misrepresentation in order to gain an immigration benefit; and having been expeditiously removed from the U.S. while attempting to enter the U.S. with a validly approved K-1 visa.

The U.S. citizen husband contacted my office after his fiancee’s removal from the United States due to our firm’s in-depth experience in securing I-601 “Prostitution Waivers” and I-601 “Fraud/Misrepresentation Waivers” over the past 12 years.  This was a particularly challenging case given the numerous grounds of inadmissibility that the South Korean wife was subject to: prostitution, fraud/misrepresentation, and a 5 year bar due to expedited removal from the U.S.

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.

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 (applied for using the I-212 Waiver): 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. hardship involving the applicant and others; 8. the need for the applicant’s services in the United States; and 9. whether the applicant has an approved immigrant or non-immigrant visa petition.

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).

In support of my client’s I-601 and I-212 waiver applications, I prepared a comprehensive legal brief going over how the facts and circumstances of my clients’ situation met the legal standards used to define “extreme hardship”; “rehabilitation” of the client; and that my client’s admission would “not be contrary to the national welfare, safety, or security of the U.S.”  

In other words, 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 husband including Dysthymic Disorder and Generalized Anxiety Disorder, both of which were being aggravated by the prolonged separation of the couple
  • Various physical illnesses and conditions suffered by the U.S. citizen husband, including Chronic Hepatitis B that required constant medical monitoring and treatment in the United States
  • Various physical illnesses and conditions suffered by the U.S. citizen husband’s parents, both of whom relied upon their son to support them financially and manage their medical care
  • Significant amounts of U.S. educational and mortgage debt of the U.S. citizen, all of which would be in danger of default should the U.S. citizen husband be forced to re-locate to South Korea (a country where he neither spoke the language nor would be qualified to practice his specialized profession)
  • Evidence of rehabilitation of the South Korean wife including educational courses undertaken and numerous affidavits written in her support

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 parents in the event of their son’s departure from the U.S., would in turn impact the U.S. citizen himself 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 qualifying relative plays an integral role in taking care of the close relative, either in daily care, financial support, and/or medical oversight.

As a result of the I-601 “prostitution waiver,” I-601 “fraud/misrepresentation waiver,” and I-212 “removal/deportation waiver” prepared and submitted by my office, the I-601 and I-212 waiver applications were all approved.  The couple now happily reside together inside the U.S.  The South Korean wife holds U.S. permanent residence and will qualify to apply for U.S. citizenship within three years.

Consular Recommendation of the 212(d)(3) Non-Immigrant Waiver Application to the CBP

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Relevant Factors for the 212(d)(3) Waiver

INA Section § 212(d)(3)(A) of the Immigration and Nationality Act states in relevant part:

Except as provided in this subsection, an alien (i) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General, or (ii) who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

INA §212(d)(3)(A) thus waives virtually all inadmissibility grounds for non-immigrants including:

  • health-related grounds (communicable disease, mental illness, drug abuser or addict);
  • criminal grounds (including crimes involving mortal turpitude, multiple criminal convictions, drug violations, and prostitution);
  • likelihood of becoming a public charge;
  • immigration violations (including failure to attend removal proceedings, misrepresentation, false claims of citizenship, alien smuggling, aiding and abetting unlawful employment, student visa abusers, and overstays subject to three– and ten-year bars);
  • grounds covering persons ordered removed upon arrival, unlawful voters, and U.S. citizens who renounced citizenship to avoid taxation; and
  • involvement in terrorist activities and association with terrorist organizations.

212(d)(3) non-immigrant waivers by visa applicants are generally filed at a U.S. consulate or embassy abroad.  Visa exempt nationals such as Canadians generally have to file in advance of their date of travel at a CBP-designated port of entry or pre-clearance office.  All 212(d)(3) waiver applications are then forwarded to the U.S. Customs and Border Protection’s Admissibility Review Office in Washington D.C.  Thus, it is not the U.S. Department State or the USCIS that ultimately makes the decision to approve or deny a 212(d)(3) waiver.  It is U.S. Customs and Border Protection.

The CBP ARO does consider the same factors used by the U.S. Department State when reviewing 212(d)(3) non-immigrant waiver applications but is not bound by them.  Specifically, the ARO will first look at whether the 212(d)(3) waiver was “recommended” by the U.S. consular officer.  In making a recommendation to CBP, State Department officers are instructed to include:

• The relevant humanitarian, political, economic or public relations factors;

• a statement (where applicable) that DOS is satisfied the alien has a residence abroad which he or she has no intention of abandoning;

• a statement that the alien is properly classified as a nonimmigrant;

• the officer’s precise recommendation and the reasons therefor.

Consular officers are also instructed that a 212(d)(3) non-immigrant waiver may be requested (except as precluded by statute) for any nonimmigrant alien whose presence would not be detrimental to the United States and that the law does not require that recommendations be limited to exceptional, humanitarian or national interest cases.

In fact, consular officers are instructed to exercise discretion and good judgment but may recommend waivers “for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.”

In my experience however, some consular officers are not familiar with the 212(d)(3) waiver process.  I have had cases where thoroughly prepared 212(d)(3) waiver packages were initially not accepted by the consular officer at the visa interview; only to be accepted a few days later after repeated inquiries by my office and another visit by the applicant to the consulate.  It is important to be clear, concise, and persistent in these matters.

Once the 212(d)(3) non-immigrant waiver is received by the ARO, the reviewing officer at the CBP considers all of the above and also considers that the Congress has deemed these aliens inadmissible to the United States.  In considering the waiver, the CBP officer will weigh the benefit, if any, to the United States should the waiver be granted.  In situations where the proposed visit is for the purpose of medical treatment, the CBP officer will consider whether such treatment is available to the alien abroad.  Above all, CBP officers are reminded that granting of waivers of inadmissibility grounds should not be routine and available just for the asking.  Thus, it is extremely important that every 212(d)(3) non-immigrant waiver application be well-prepared with a detailed legal and factual analysis and well-documented with essential support documents.

However, there may be instances where the consular officer refuses to “recommend” a waiver to the ARO in the first place.  This may occur when they believe a waiver recommendation is not warranted given factors such as the recency and seriousness of the crime or offense, type of disability, reasons for the proposed travel to the United States and the probable consequences, if any, to the public interests of the United States.  What many applicants (and lawyers) do not seem to realize is that there is a process in place for mandatory referrals of 212(d)(3) waiver applications to the Department of State Visa Office for consideration of a “recommendation” to the CBP ARO:

Mandatory referrals are required in the following situations:

  • Any case where it is requested by the alien or an interested party in the U.S. that it be forwarded;
  • Any case where the consular officer knows or has reason to believe that pertinent considerations not available at the post may be available to or through the Department;
  • Prior refusals;
  • Any case where the alien’s presence or activities in the U.S. might become a matter of public interest or of foreign relations significance;
  • Any case in which the Department has mandated an advisory opinion be sought;
  • The case of any alien who is a national of a country which the U.S. does not recognize or with which we have no diplomatic relations;
  • The case of any alien not classifiable under INA Section 101 (a) (15) (A) or (G) but destined on official business to the United Nations;
  • Cases of any SILEX or BUSVIS/SILEX alien and of certain CHINEX or BUSVIS/CHINEX aliens;
  • The case of any Soviet applying for an I visa;
  • Any case involving 212(a)(3)(B);
  • Any cases in which the consular officer recommends a term of greater than one year.

Having said that, the decision-making of consular officers are always given deference.  It is always better to present a strong 212(d)(3) waiver application from the beginning and communicate constructively with the consular officer to secure a recommendation to the CBP ARO.

Once a waiver is approved, they are typically approved for a one year period with multiple entries allowed.  After the first or second extension, a 5-year validity 212(d)(3) waiver can be given.  However, keep in mind that multiple entry waivers are not given to an alien who:

• Has a mental or physical disorder;
• Is a narcotic drug addict or a narcotic trafficker (multiples have been granted before in special cases with DEA/Customs/FBI involvement);
• Is afflicted with a communicable disease;
• Was convicted of a crime involving moral turpitude and is less than 5 years post-release;
• Has a prostitution related activity within 10 years of visa application.

Client Approval: 212(d)(3) Waiver Approved for Mexican Professional Requiring Corporate Training in the U.S.

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Client Approval: 212(d)(3) Waiver Approved for Mexican Professional Requiring Corporate Training in the U.S.

We recently received approval for a 212(d)(3) non-immigrant waiver prepared on behalf of a Mexican client who was subject to a lifetime bar from the United States due to a charge of fraud/misrepresentation pursuant to INA 212(a)(6)(c)(i).  Our client was also expeditiously removed twice from the United States and subject to the 20 years bar pursuant to INA 212(a)(9)(A)(i).

I 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 my client’s case, I addressed each of the factors laid out by Matter of Hranka while emphasizing the importance of my client’s role in the multinational company he now worked for; the critical nature of the training he needed to receive in the United States for his professional career as well as for his employer (which held direct ramifications for benefiting the economic welfare of the United States); previous Dept. of State error that directly led to his second expedited removal from the U.S.;  his ties to Mexico including his wife and children; and his history of law-abiding and ethical behavior which was supported by numerous affidavits from his colleagues and friends.

Based upon these factors, my client was approved for the 212(d)(3) non-immigrant waiver by the Admissibility Review Office in Washington D.C., and subsequently, for the B-1 Visitor Visa.  He is now able to enter the United States to participate in training mandated by his company and continue his successful career with a respected multinational corporation.

I-601 and I-212 Waivers and Deportation In Absentia

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I-601 and I-212 Waivers and Deportation In Absentia

Section 212(a)(6)(8) of the Immigration and Nationality Act sets forth the consequences of failure to attend a removal proceeding.  Specifically, it states:

(1) General. Any alien who, without reasonable cause, fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability, and who seeks admission to the United States within five (5) years of such alien’s subsequent departure or removal is inadmissible.

This “5 year bar” under Section 212(a)(6)(8) often becomes an issue for applicants who leave the United States to apply for the I-601 and/or I-212 waivers despite having had deportation ordered entered against them “in absentia.”  A deportation order in absentia can be entered when the alien fails to attend their removal hearing after receiving a Notice to Appear (NTA) from immigration court.  For these applicants, they must remain outside the United States for 5 years until they are eligible to apply for their I-601 and/or I-212 waivers.

Keep also in mind that you can be deemed inadmissible even if the judge did not enter a deportation order.  As long as you were given sufficient notice of your removal hearing and failed to appear, you may be deemed inadmissible under Section 212(a)(6)(8).

Those who have an order of deportation in absentia on their record must show “reasonable cause” for failing to attend their removal hearing, in order for their I-601 and/or I-212 waiver applications to be adjudicated.  This is not an easy task.  A review of the case law shows that only extraordinary circumstances such as a medical emergency will meet this standard.

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I-212 and I-601 Waivers Approved for Ukrainian by AAO

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I-212 and I-601 Waivers Approved for Ukrainian by AAO

I-601 Waiver and I-212 Waiver Legal News

The applicant in this case is a native of Russia and a citizen of Ukraine, who was found to be inadmissible to the United States under sections 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for procuring a visa by willfully misrepresenting a material fact, and pursuant to section 212(a)(9)(A)(i) of the Act, 8 U.S.C. § 1182(a)(9)(A)(i), due to her expedited removal from the United States.

The applicant applied for a waiver of inadmissibility (also known as the I-601 or “extreme hardship” waiver) and permission to reapply for admission (also referred to as the I-212 waiver) in order to reside in the United States with her U.S. citizen husband.

The take-away from this case is that when the I-601 and I-212 waivers are filed together, approval of the I-601 waiver upon finding of extreme hardship and exercise of favorable discretion, also means approval of the I-212 waiver.  This means that waiver applicants applying for the I-601 and I-212 waivers  together, should focus most of their efforts on proving extreme hardship to the qualifying relative as well as on demonstrating why a favorable exercise of discretion should be granted.

Section 212(a)(9)(A) provides, in pertinent part:

(i) Arriving Aliens. -Any alien who has been ordered removed under section 235(b)(l) or at the end of proceedings under section 240 initiated upon the alien’s arrival in the United States and who again seeks admission within 5 years of the date of such removal … is inadmissible.

(ii) Other Aliens. -Any alien not described in clause (i) who-

(I) has been ordered removed under section 240 or any other provision of law, or

(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien’s departure or removal … is inadmissible.

(iii) Exception. -Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien’s reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General [now, Secretary, Department of Homeland Security] has consented to the alien’s reapplying for admission.

Section 212(a)(6)(C)(i) of the Act provides, in pertinent part:

Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

Section 212(i)(1) of the Act provides:

The [Secretary] may, in the discretion of the [Secretary], waive the application of clause (i) of subsection (a)(6)(C) in the case of an alien who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien[ … ]. 

The favorable factors in this case cited by the AAO in finding extreme hardship to the U.S. citizen spouse are the following:

  • The U.S. citizen husband is 60-years old.
  • He has a number of medical conditions for which he receives regular treatment and monitoring including rheumatoid arthritis (generalized inflammation of the joints), osteoarthritis (localized inflammation due to wear and tear) of the hand/wrist, as well as hepatitis C and a latent form of tuberculosis (TB) infection.
  • While he has maintained an active lifestyle, the U.S. citizen husband has suffered painful flare-ups while overseas with his wife.
  • The U.S. citizen husband’s chronic infections are actively monitored by his physician with an eye toward offering his patient access to new therapies.
  • The Ukrainian wife’s presence in the U.S. spares the U.S. citizen husband from overseas visits to ease the pain of separation.  This thereby minimizes the chances that painful episodes experienced during visits to Ukraine and Mexico will reoccur.
  • The State Department advises that U.S. citizens who are ill or infirm not travel to the Ukraine, as “those with existing health problems may be at risk due to inadequate medical facilities.”
  • The State Department substantiates the U.S. citizen husband’s concerns for his wife’s personal safety and security by noting that street crime is a serious problem, corruption pervasive among the police, and emergency services far below western standards.
  • The U.S. citizen husband was married for 34 years before marrying the applicant in 2010.  He observes that he does not do well alone.  A psychotherapist concluded, based on targeted questionnaires and symptoms including sadness, crying, insomnia, loss of appetite/weight, headaches, and problems concentrating, that the U.S. citizen husband suffers from major depression stemming from prolonged separation from his Ukrainian wife.
  • The psychological report confirms that the U.S. citizen husband receives little relief from anti-depressant medication and sleep aids prescribed by his doctor, and supports the therapist’s conclusion that his psychological distress will continue to worsen in his wife’s absence.
  • The U.S. citizen husband’s second wife, with whom he shares custody of their six year old son, has conditioned granting full custody upon the Ukrainian wife’s presence as a homemaker to the household.  The U.S. citizen husband is eager to have his son live with him and his wife in a family unit.
  • The U.S. citizen husband has many ongoing expenses, including high fixed costs for his business; tuition and travel costs for his young son currently residing in Kentucky with his mother and attending school; travel expenses to visit with his wife abroad; and costs of maintaining regular communications with his wife to ease the pain of separation.
  • The U.S. citizen husband is struggling to maintain a home in Alaska and a Kiev rental apartment for his wife, while also paying for significant expenses associated with supporting his son in Kentucky.  The expense of maintaining two households have strained his financial resources and forced him to access retirement accounts to make ends meet.

The factors cited by the AAO in exercising favorable discretion in this matter are:

  • The extreme hardships the applicant’s husband would face if the applicant were to reside in Ukraine, regardless of whether he accompanied the applicant or remained in the U.S.
  • The applicant’s lack of any criminal record
  • Supportive statements and passage of nearly four years since the applicant’s misrepresentations
  • Her ready admission to and contrition about her misrepresentations.

As with all cases, a thorough overview of the case law, an in-depth and persuasive discussion of the relevant factors, along with a comprehensive array of supporting documents to prove the statements made, are required for approval of these types of applications.

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