Smart Immigration Lawyer

I-601 Waiver Approved for Romanian Client Subject to 10 Year Unlawful Presence Bar

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I-601 Waiver Approved for Romanian Client Subject to 10 Year Unlawful Presence Bar

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a Romanian client who was subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B).

She entered the U.S. under the J-1 visa and was granted “duration of status” upon entry.  She then resided in the U.S. for approximately 7 years until she received a notice of J-1 exchange visitor status violation in 2009.  She was informed that  as of the date of the USCIS notice, she was considered out of status and unlawfully present in the U.S.  She was then granted voluntary departure during removal proceedings and returned to her home country of Romania.  The couple contacted my office after the wife was denied at her immigrant visa interview at the U.S. embassy in Bucharest due to being subject to the 10 year unlawful presence ground of inadmissibility.

Note: For non-immigrants admitted for Duration of Status, if the USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied.  If an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation, or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order.  It must be emphasized that the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which removal proceedings are initiated. See 8 CFR 239.3.

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.  A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

”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.

I prepared a comprehensive I-601 waiver application including a 15 page legal brief going over how the facts and circumstances of her husband’s situation met the legal standards used to define “extreme hardship.”  I also discussed and presented evidence of her rehabilitation, good moral character, and overall dedication as a wife and mother who was integral to the care and well-being of her ill U.S. citizen husband.

This case was particularly difficult because the U.S. citizen husband was born and raised in Romania himself.  He was residing in Romania with the wife at the time the waiver was filed and working for a U.S. company with wages sufficient to support the family. We had to overcome the presumption that a U.S. citizen of Romanian origin, who speaks the local language, was educated in the country, and already residing abroad with his wife and son, has adjusted to life abroad and is not suffering extreme hardship.

Given the location of husband and wife in Romania, I worked with a Romanian clinical psychologist to ensure that her psychological evaluation of the U.S. citizen husband conformed to the specific needs and requirements of the I-601 waiver. Additionally, I carefully analyzed the strengths and weaknesses of the case and put together a table of exhibits that supported a showing of “extreme hardship.”  The supporting documents included:

  • Letter and medical records from the physician of the U.S. citizen husband confirming his high blood pressure and hypertension.
  • Letter from a Romanian clinical psychologist confirming the U.S. citizen husband’s clinical anxiety disorder and the risk of escalation of the disorder due to the immigration consequences of his wife’s removal and subsequent inadmissibility.
  • Proof of bankruptcy and foreclosure filed by the U.S. citizen husband as a result of the financial consequences of caused by his wife’s removal from the United States and subsequent inadmissibility.
  • Evidence that his U.S. employment would be soon lost due to his diminished performance and extended absences caused by his wife’s removal and inadmissibility from the U.S.
  • Specific information from official sources on the country conditions of Romania including its poor health system
  • Proof of extended visits and household expenses in two countries that led to financial depletion of the U.S. citizen husband’s assets
  • Affidavits demonstrating my client’s good moral character and her past contribution to the welfare of the U.S. and its economy

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this family of mother, father, and son will be able to return to their lives back in the United States.

Client Approval: I-601 Waiver under 212(h) Approved for Client With Multiple CIMT and Controlled Substance Conviction

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Client Approval: I-601 Waiver under 212(h) Approved for Client With Multiple CIMT and Controlled Substance Conviction

Our office recently received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a client who was subject to a lifetime ban from being admitted to the United States pursuant to  INA 212(a)(2)(A)(i)(I) and  INA 212(a)(2)(A)(i)(II).  Our client has multiple criminal convictions in her background including a conviction for a crime involving moral turpitude which occurred in 1998 and a controlled substance conviction (possession of a cannabis bong) which occurred in 1997.  Our client is married to a U.S. lawful permanent resident husband with an approved I-130 immediate relative petition filed on her behalf.

She contacted me after filing the I-601 waiver on her own and receiving a notice from the USCIS stating that the waiver package she filed did not contain sufficient evidence that a favorable exercise of discretion was warranted in her case.

Legal Requirements of the § 212(h) Waiver

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))

INA 212(h)(1)(A) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), and (E) of the Act may be waived in the case of an alien who demonstrates to the satisfaction of the Attorney General that:

  • the activities for which she is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of status;
  • the admission would not be contrary to the national welfare, safety, or security of the U.S.; and
  • the alien has been rehabilitated;

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:

  • has a parent, spouse, son, or daughter who is a U.S. citizen or lawful permanent resident of the United States; and
  • the parent, spouse, son, or daughter would suffer “extreme hardship” on account of the alien’s ineligibility to immigrate

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.

”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.

How I Obtained Approval of the I-601 Waiver for My Client Who Had Multiple Convictions for Crimes Involving Moral Turpitude and a Controlled Substance Conviction

In support of my client’s I-601 waiver application, I prepared a comprehensive 21-page legal brief going over how the facts and circumstances of her situation met the legal standards for both INA 212(h)(1)(A) and INA 212(h)(1)(B) including citations of existing case law favorable to my client’s case.

I thoroughly outlined the the medical, financial, and psychological hardships of the case and presented persuasive evidence of my client’s rehabilitation and good moral character.  Not only did I show that my client was rehabilitated and her admission not contrary to the national welfare, safety, or security of the U.S., I also demonstrated that her overall dedication as a wife and mother was integral to the daily care of her ill U.S. citizen husband (who suffers from coronary heart disease and psychological disorders) and their three children (one of whom suffers from Attention Deficit Hyperactivity Disorder).  I also showed that the welfare of her husband and children depends on them remaining inside the United States together with their wife and mother.

An extensive table of exhibits also listed a variety of evidence in support of a showing of “extreme hardship” and rehabilitation.

As a result of our efforts, our client was approved for the 601 waiver within 4 weeks of submission and subsequently, received her lawful permanent residence to join her family in the United States.

Temporary Protected Status (TPS), Advance Parole, and Adjustment of Status under Arrabally

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Temporary Protected Status (TPS), Advance Parole, and Adjustment of Status under Arabally

Overview of Adjustment of Status

According to INA  Section 245(a), the status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

  1. the alien makes an application for such adjustment,
  2. the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
  3. an immigrant visa is immediately available to him at the time his application is filed.

Overview of the 3 and 10 Year Unlawful Presence Bars

INA Section 212(a)(9)(B)(i) is broken into two (2) sub-groups:

  • Section 212(a)(9)(B)(i)(I) of the Act (3-year bar). This provision renders inadmissible for three (3) years those aliens, who were unlawfully present for more than 180 days but less than one (1) year, and who departed from the United States voluntarily prior to the initiation of removal proceedings.
  • Section 212(a)(9)(B)(i)(II) of the Act (10-year bar). This provision renders inadmissible an alien, who was unlawfully present for one (1) year or more, and who seeks again admission within ten (10) years of the date of the alien’s departure or removal from the United States.

Section 212(a)(9)(B)(ii) of the Act defines “unlawful presence” for purposes of sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act to mean that an alien is deemed to be unlawfully present in the United States, if the alien is:

  • present after the expiration of the period of stay authorized by the Secretary of Homeland Security; or
  • present without being admitted or paroled.

Both the 3 and 10 year unlawful presence bars can be waived pursuant to section 212(a)(9)(B)(v) of the Act which states:

Waiver. – The [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 [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.

This waiver pursuant to 212(a)(9)(B)(v) is applied for through the I-601 “extreme hardship” waiver discussed extensively on this web site.

Triggering the Bar by Departing the United States and Matter of Arrabally

In the past, an alien who was not inspected and admitted or paroled into the United States was ineligible for adjustment of status (unless protected under INA Section 245(i)).  Such a person, when petitioned for permanent residence by a U.S. citizen spouse for example, had to leave the U.S. and attend a consular interview at the U.S. embassy abroad in order to complete the immigrant visa process.

By leaving the U.S. after accruing more than 180 days or one (1) year of unlawful presence, the 3-year or 10-year bar to admission under section 212(a)(9)(B) of the Act was triggered.  The I-601 waiver was subsequently required.

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the Board of Immigration Appeals held that an alien who leaves the United States temporarily pursuant to advance parole under section 212(d)(5)(A) of the Act does not make a departure from the United States within the meaning of section 212(a)(9)(B)(i)(II) of the Act.

Advance parole is an administrative practice derived from the general parole authority in INA § 212(d)(5), giving an individual who is in the United States advance authorization to enter the United States after temporary travel abroad.  U.S. Citizenship and Immigration Services (USCIS) has the authority to grant advance parole and issue a Form I-512L, an advance parole authorization document.  Form I-512L allows a Customs and Border Protection (CBP) or other immigration inspector at a U.S. port-of-entry to parole an individual into the United States.  Advance parole does not guarantee subsequent parole into the United States.  The inspecting immigration official may, in his or her discretion, deny parole at the port-of-entry.

In a series of AAO decisions citing Matter of Arrabally and Yerrabelly thereafter, applicants who entered without inspection and subsequently obtained Temporary Protected Status (TPS), were allowed to use advance parole obtained pursuant to section 212(d)(5)(A) to temporarily leave the U.S., re-enter the U.S., and pursue pending applications for adjustment of status.  They were deemed to have NOT made a “departure” from the United States for purposes of section 212(a)(9)(B)(i)(II) of the Act.

In other words, the 3 and 10 year unlawful presence bars were not triggered.  Accordingly, the applicants were not deemed inadmissible under section 212(a)(9)(B)(i)(I) and 212(a)(9)(B)(i)(II) of the Act.  Additionally, they were deemed to have been paroled into the United States, and now eligible for adjustment of status under INA Section 245(a).

In these cases, the applicants were allowed to proceed with their adjustment of status applications in the United States based upon their  marriage to a U.S. citizen spouse.  Just as importantly, the I-601 extreme hardship waiver  was deemed unnecessary since the 3 and 10 year unlawful presence bars were not triggered.

It should be noted that this “beneficial interpretation” using Matter of Arrabally and Yerrabelly would extend to any immediate relative of a U.S. citizen applying for adjustment of status (i.e. the spouse, child under 21, or parent of a U.S. citizen son or daughter over 21 years old).

In summary, this has been welcome news for those granted TPS since Matter of Arrabally and Yerrabelly was decided.  Those who entered the U.S. without inspection and overstayed for 6 months or longer, subsequently obtained Temporary Protected Status (TPS), and are married U.S. citizens, have been able to obtain advance parole, leave the United States, and re-enter the U.S. to proceed with their adjustment of status to permanent residence without need for the I-601 extreme hardship waiver.

Other Inadmissibility Considerations

Prior to traveling abroad under advance parole, it is important to determine whether other grounds of inadmissibility may apply. Keep in mind that Matter of Arrabally and Yerrabelly discussed above benefits those who are only subject to the 3 or 10 year bar upon their departure from the United States.  As such, the inspecting immigration officer may deny  entry into the United States for those holding advance parole if the officer finds that any of the other inadmissibility grounds apply.

For example, an applicant who has already triggered the unlawful presence bars under INA Section 212(a)(9)(B) or the permanent bar under INA Section 212(a)(9)(C) (by previously leaving and re-entering without advance parole) may still be subject to these bars.

Future travel under advance parole will not cure previously incurred bars.  Immigration-related fraud or misrepresentation and false claims to U.S. citizenship can also bar admission.  Thus, prior to departing the United States, applicants with advance parole must consider all other inadmissibility grounds including criminal inadmissibility grounds identified at INA Section 212(a)(2).

Unexecuted deportation or removal order. If such an order exists, and if the applicant were to depart the United States on advance parole, he or she likely would be found to have executed the deportation/removal order and may not be able to re-enter the United States for a prescribed period of time.

To avoid this, an applicant with an unexecuted removal order can submit a motion to reopen removal proceedings with the Immigration Court or the BIA.  Once removal proceedings are reopened, the removal order no longer exists.  The applicant can then move to administratively close or terminate the reopened proceedings.  If either termination of proceedings or administrative closure is granted, the applicant can travel on advance  parole without risking the consequences of an executed removal order.  I typically contact the relevant ICE Office of the Chief Council (OCC) to request that the parties  jointly move to reopen and then administratively close or terminate the removal proceedings.

I-601 Waivers for Physical or Mental Disorders with Associated Harmful Behavior

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Waivers for Physical or Mental Disorders with Associated Harmful Behavior

The USCIS has issued updated guidance to its adjudicating officers on the health-related grounds of inadmissibility and their associated waivers.  A common inadmissibility that I am contacted for involves INA 212(a)(2)(A)(iii), which deems an alien inadmissible if he/she is determined:

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others; or

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior;

The USCIS guidance referenced below is addressed to adjudicating officers.

Please keep in mind that waiver applicants should prepare and submit a comprehensive waiver application, that includes an up-to-date psychological evaluation; a statement from an approved U.S. facility or specialist agreeing to evaluate the applicant upon entry into the U.S. and agreeing to file a report with the CDC; evidence of medical insurance to pay for the costs of the mental disorder; among other supporting documents relevant to the case.

Physical or Mental Disorders with Associated Harmful Behavior

Applicants who have physical or mental disorders and harmful behavior associated with those disorders are inadmissible.  The inadmissibility ground is divided into two subcategories:

  • Current physical or mental disorders, with associated harmful behavior.
  • Past physical or mental disorders, with associated harmful behavior that is likely to recur or lead to other harmful behavior.

There must be both a physical or mental disorder and harmful behavior to make an applicant inadmissible based on this ground.  Neither harmful behavior nor a physical/mental disorder alone renders an applicant inadmissible on this ground.  Harmful behavior is defined as behavior that may pose, or has posed, a threat to the property, safety, or welfare of the applicant or others.

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USCIS Issues Field Guidance on I-601A Provisional Waiver Applicants with Criminal Arrests or Convictions

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USCIS Issues Field Guidance on I-601A Provisional Waiver Applicants with Criminal Arrests or Convictions

On March 4, 2013, the USCIS began a new provisional unlawful presence waiver program for immediate relatives of U.S. citizens whose only ground of inadmissibility is unlawful presence in the United States under section 212(a)(9)(B)(i)(I) and (II) of the Immigration and Nationality Act (INA).

The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all I-601A Provisional Waiver eligibility requirements and warrant a favorable exercise of discretion.

There are several circumstances that may render an individual ineligible for a provisional unlawful presence waiver.  For example, individuals with final orders of exclusion, deportation, or removal; individuals who are currently in removal proceedings that are not administratively closed at the time of filing; and individuals who have a pending application with USCIS for lawful permanent resident status are not eligible to apply for the provisional unlawful presence waiver.  Individuals for whom there is a reason to believe that they may be subject to grounds of inadmissibility other than unlawful presence at the time of the immigrant visa interview with a  Department of State (DOS) consular officer also are ineligible for the provisional unlawful  presence waiver. See 8 CFR 212.7(e) (2013).

If a USCIS officer determines, based on the record, that there is a reason to believe that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of his or her immigrant visa interview with a DOS consular officer, USCIS will deny the request for a provisional unlawful presence waiver. See 8 CFR 212.7(e)(4)(i) (2013).

Since the commencement of the I-601A Provisional Waiver program, the USCIS denied I-601A waiver applications when the applicant had any criminal history.  In these cases, if the record contained evidence that an applicant was charged with an offense or convicted of any crime (other than minor traffic citations such as parking violations, red light/stop sign violations, expired license or registration, or similar offenses), regardless of the  sentence imposed or whether the offense is a Crime Involving Moral Turpitude (CIMT), USCIS denied the I-601A waiver application.

The USCIS has now issued guidance to its officers to review all evidence in the record, including any evidence submitted by the applicant or the attorney of record.

If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication, or (2) is not a Crime Involving Moral Turpitude under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense.

The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful  presence waiver, including whether the applicant warrants a favorable exercise of discretion.

This news has been much-anticipated by potential waiver applicants who have certain convictions such as Driving Under the Influence (DUI) on their record.  Assuming the applicant’s criminal conviction(s) does not trigger a ground of inadmissibility, or their criminal conviction falls under the “petty offense” or “youthful offender” exception, waiver applicants may now proceed with their I-601A Provisional Waiver applications.

Keep in mind that it is extremely important for applicants with criminal conviction(s) in their background to prepare and submit a memorandum, together with their I-601A waiver package, clearly describing why their criminal conviction(s) does not trigger a ground of inadmissibility; or why their criminal conviction falls under the “petty offense” or “youthful offender” exception of INA section 212(a)(2)(A)(ii).

How to Prepare a Powerful Psychological Evaluation to Prove Extreme Hardship for the I-601 and I-601A Waiver

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How to Prepare a Powerful Psychological Evaluation to Prove Extreme Hardship for the I-601 and I-601A Waiver

Extreme Hardship Defined

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)(6)(C)(i) of the Act provides, in pertinent part, that:

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) of the Act provides, in pertinent part:

(I) The Attorney General [now the Secretary of Homeland Security (Secretary)] may, in the discretion of the Attorney General [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 Attorney General [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.

(**Please note that the I-601a Provisional Waiver requires a showing of extreme hardship to the U.S. citizen spouse or parent.  In other words, lawful permanent residents are not allowed to be the qualifying relative for I-601a Provisional Waivers).

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 of Immigration Appeals 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 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 lge, 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 lge, 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 (BI2001) (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).

The Psychological Evaluation

The psychological evaluation can thus be a powerful piece of evidence to demonstrate and prove the extreme hardship that the qualifying relative would suffer if he or she is separated from the applicant; or alternatively, if the qualifying relative leaves the U.S. and re-locates abroad in order to be with the applicant.  I will first go over an I-601 waiver application that was approved by the AAO to examine the characteristics of a successful and persuasive psychological evaluation.

The applicant in this case is a native and citizen of Mexico who was found to be inadmissible to the United States pursuant to section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), for fraud or willful misrepresentation of a material fact in order to procure an immigration benefit.  The applicant is married to a U.S. citizen and seeks a waiver of inadmissibility pursuant to Section 212(i) of the Act, 8 U.S.C. § 1182(i), in order to reside with her husband in the United States.

The qualifying relative (the U.S. citizen husband) was born in Texas.  He is 58 years old, and has 10 siblings, 4 children from previous relationships, and 3 grandchildren who all reside in the U.S.  He has a 88 year old elderly father.  He fears that he would not have a job if he moves to Mexico and consequently would not be able to afford visits to see his father.  He encountered a shoot-out between drug cartels and the Mexican military during a visit to see his mother-in-law during a visit to Ciudad Juarez, Mexico.  He and his nephew were stopped by armed men with machine guns who threatened their lives during a visit to see his mother-in-law in the state of Sinaloa, Mexico.  A letter from his sister-in-law confirms the violence in Los Mochis Mexico, and the general state of disrepair of the house there that the applicant and her U.S. citizen husband would have to live in.

The psychological report submitted as part of the I-601 waiver application expressly states the following:

  • The U.S. citizen husband was the middle child of eleven children who grew up in a home with a physically and verbally abusive alcoholic father.
  • The U.S. citizen husband watched and heard his mother being beaten and felt powerless to stop his father.
  • The U.S. citizen husband is very close to his siblings since they supported each other while growing up in order to survive.
  • The U.S. citizen husband grew up in Idaho where he felt a sense of discrimination and prejudice during his school years.
  • When the U.S. citizen husband was 23 years old, he was called back home from the U.S. Army because his mother had died, his father had left, and there was no one to care for his younger siblings.
  • The U.S. citizen husband’s first marriage was brief and they had a son together.  His ex-wife disappeared with his son and he was unable to find him until his son was 12 years old and complained that his mother abused him.  His son subsequently lived with him for two years.
  • The U.S. citizen husband’s physician prescribed him Prozac for his depression which dates back to his first marriage.
  • The U.S. citizen husband re-married and had two children with his second wife.  This marriage lasted 28 years.
  • When the U.S. citizen husband met his current wife (the I-601 waiver applicant), he felt there was new meaning in life.
  • He fears he will go into serious depression if she moves back to Mexico without him, and fears that if he moved to Mexico with her, he would deeply miss his children and siblings.
  • The U.S. citizen husband has a history of depression and anxiety.
  • The U.S. citizen husband has difficulty sleeping, feels anxious, and had had thoughts of suicide.
  • The U.S. citizen husband has been diagnosed with Dysthymia and Adjustment Disorder with Depression and Anxiety.
  • If the wife is not allowed to remain in the U.S., the U.S. citizen husband would experience serious psychological consequences and it his highly likely his depression would worsen to the point he would consider suicide.

In my experience, effective psychological evaluations should always include a detailed personal history of the person being examined (along with the waiver applicant and family members in general).  It should concisely and accurately detail the unique circumstances of the patient that makes him or her particularly vulnerable to hardship.

The psychological evaluation in support of a I-601 or I-601a waiver should summarize the psychological and medical history of the patient, including the length of time the patient has suffered from psychological disorders and medical illnesses; any treatments received including surgery; and the medications the patient has been prescribed.  This is particularly important because the USCIS can discount the credibility of psychological diagnoses prepared solely to support the I-601 or I-601A waiver application.  A discussion of a history of previously diagnosed psychological disorder(s) will go a long ways towards establishing credibility.

The psychological evaluation should describe the emotional impact of both separation and re-location.  In other words, it must discuss the psychological and emotional impact on the qualifying relative if he or she becomes separated from the applicant due to inadmissibility; as well as the psychological and emotional impact on the qualifying relative if he or she re-locates abroad in order to be with the applicant.

Since mental and physical well-being have been found to be closely related, the psychological report can also emphasize the physical consequences of patient’s current or future psychological state.  For example, if the patient suffers from coronary disease, then an aggravation of his or her psychological disorders could contribute to a fatal heart attack.

The psychological evaluation should state the methodology used to diagnose the patient.  It should specify all of the symptoms shown by the patient that led to a particular diagnosis.   If applicable, if should expressly state that separation from the applicant (and re-location abroad to be with the applicant) would make the psychological disorders worsen.   It should also state what the consequences will be for the patient if his or her psychological disorders worsen, including the possibilities of decompensation or suicide.

A well-written psychological evaluation should have a final section that summarizes the conclusions of the psychologist or psychiatrist.  It should emphasize all of the hardships that the patient is currently suffering from, as well as those that he will suffer (or that will grow worse) should the applicant not be admitted to the United States.

It is therefore essential that the psychological evaluation be prepared by a professional who has experience with the unique requirements of the extreme hardship standard used in I-601 and I-601a waiver applications.  If your chosen psychologist or psychiatrist does not have such experience, I suggest providing a link to this article and making sure they understand the importance of a well-written and detailed psychological report.

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.

I-601 Extreme Hardship Waiver Approved by AAO for 10 Year Unlawful Presence Bar

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I-601 Extreme Hardship Waiver Approved by AAO for 10 Year Unlawful Presence Bar

I-601 Waiver Legal News

The applicant is a native and citizen of Israel who was found to be inadmissible to the United States pursuant to INA Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(9)(B)(i)(II), for having been unlawfully present in the United States for more than one year and seeking readmission within ten years of his last departure from the United States.  The applicant entered the United States with a B-2 visitor’s visa.  He departed from the United States on a validly approved advance parole, received after filing for adjustment of status.  The applicant is the spouse of a U.S. citizen and seeks a waiver of inadmissibility to reside in the United States.

INA Section 212(a)(9)(B) of the Act provides, in pertinent part:

(B) Aliens Unlawfully Present.-

(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 such 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.

In Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565-66 (BIA 1999), the 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’s 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 BIA added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not an exclusive list.  Relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.  In each case, the trier of fact 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. Matter of 0-J-0-. 21 I&N Dec. 381, 383 (BIA 1996). (Citations omitted).

An analysis under Matter of Cervantes-Gonzalez is appropriate.  The AAO notes that extreme hardship to a qualifying relative must be established in the event that he or she accompanies the applicant and in the event that he or she remains in the United States, as a qualifying relative is not required to reside outside of the United States based on t he denial of the applicant’s waiver request.

The factors cited by the AAO as persuasive in approval of this I-601 waiver application are the following:

  • The applicant’s spouse has a history of severe problems with alcohol, has sought treatment for her illness, and attends Alcoholics Anonymous.
  • The applicant’t spouse does not have custody of her son (who resides with his father).
  • The applicant’s spouse recovered from her alcohol addiction through the help of the applicant, and after their marriage, began to see her son more often.  Her son has subsequently developed a close bond with the applicant.
  • The applicant’s spouse fears relapse into alcoholic abuse due to the stress of possible separation from her husband or relocation to Israel.
  • The applicant’s spouse has suffered from emotional instability since adolescence, has been admitted to hospital intensive care in the past, and her mother confirms that the applicant’s spouse is suffering emotionally due to possible separation from her husband.
  • The applicant’s spouse has never lived outside the United States, is not Jewish, does not speak Hebrew or any other foreign language, and all of her friends and relatives live in the United States.
  • The applicant’s spouse does not earn enough income to support a decent life for herself or allow her to help her son
  • A psychological evaluation of the applicant’s spouse confirms that she relies on the applicant for her emotional stability as she has been married three times before, with each marriage only lasting less than a year.
  • The psychological evaluation confirms that the applicant’s spouse fears she may drop back into her old drinking habits without her husband’s day-to-day support.
  • The psychological evaluation states that the applicant and his spouse are in a committed and complementary relationship.
  • The psychological evaluation finds that upon separation, the applicant’s spouse would face an emotional and medical crisis, as she has begun to adjust to being a responsible and functional spouse and to trust a male figure for the first time in her life.
  • The psychological evaluation states that substance abuse disorders are usually accompanied by a mood disorder which is either concomitant or the primary cause of the substance abuse.
  • Country condition information from the U.S. Department of State state that Israel has been experiencing violence and instability.

The key takeaway from this case is that the qualifying relative’s socio-economic, emotional, and psychological history should always be mentioned if it makes him or her particularly vulnerable to the extreme hardships brought upon by possible separation or relocation.

In this case, the U.S. citizen spouse has a history of emotional instability including alcoholism, and estrangement from her son.  She was hospitalized in the past, married three times before, and her psychological evaluation confirms that she has not been able to trust a male figure in her life until she met and married the applicant.  Only after her marriage to the applicant did her life improve, allowing her to recover from alcoholic abuse, manage her emotional instability, and begin a renewed relationship with her son.

Whenever possible, it is important to work with a psychologist or psychiatrist who has a history of treating you so that the evaluation carries more credibility in the eyes of the USCIS.  Psychological evaluations done solely for the purpose of the I-601 waiver can be discounted as less than credible by the USCIS.

However, a well-researched and properly drafted psychological evaluation, even one conducted primarily to support a I-601 waiver application, can be very helpful in several ways:

1. It can detail and confirm the unique background of the qualifying relative’s life that makes him or her particularly vulnerable to extreme hardship.  For example, a history of alcoholism, drug abuse, mental disorders, spousal abuse, growing up in a single-family home or as an orphan, and so forth.

2. It can help summarize medical conditions of the qualifying relative that are often difficult to obtain from physicians who routinely refuse to write letters on behalf of their patients.

3. When properly drafted by a psychologist or psychiatrist with experience in extreme hardship waiver cases, they help reinforce the psychological and emotional consequences of possible separation or relocation in a powerful way.

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