Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a citizen of the United Kingdom who was subject to a life-time bar from being admitted to the United States for conviction of a crime involving moral turpitude under INA Section 212(a)(2)(A)(i)(I).  Our client was previously convicted on five counts of shoplifting and was sentenced to 12 months, conditionally discharged.

Our office was contacted after the British wife and her U.S. citizen husband filed for the I-601 Waiver on their own after the applicant was deemed inadmissible at her consular interview which took place at the U.S. Embassy in London.  Their “self-prepared” I-601 Waiver was denied by the USCIS.

In order to overcome their I-601 Waiver denial, I initiated our firm’s comprehensive process for preparation of powerful and effective immigration waiver applications.  I forwarded our Extreme Hardship Worksheet to my clients, which contains questions designed to elicit extreme hardships and other persuasive factors.  I also recommended the couple to a clinical psychologist well-versed in preparing psychological evaluations for immigration waivers and who offers a significantly discounted fee for my clients (please refer to my post on the elements of a powerful psychological evaluation for I-601 waiver applications for more details).

Once I identified the most important factors of the case, I prepared a comprehensive legal brief going over how the facts and circumstances of my client’s situation met the legal standards used to define “extreme hardship.”  I also discussed and presented evidence of my client’s rehabilitation, good moral character, and her overall dedication as a wife and mother who was integral to the daily care of her ill U.S. citizen husband, his elderly lawful permanent resident parents, and their infant children who suffered from serious medical conditions.

I made sure every single facet of their case was documented and that the objections raised by the USCIS in their previous denial was fully addressed to maximize the chances of approval.

The reasons cited by the USCIS in its denial of the couple’s first and “self-prepared” I-601 Waiver Application are informative:

• The USCIS stated that the applicant’s assertion that her U.S. citizen husband could not operate his thriving U.S. business from the United Kingdom was insufficient.  It stated that while the applicant’s husband indicated that it would be: “more difficult and perhaps less profitable to continue to operate his business from outside the U.S., however it was not shown that it would be unprofitable, or that any loss of income would create an extreme hardship.  No evidence was presented that he could not employ person(s) in the U.S. as necessary.”

• The USCIS  found that: “No evidence was presented as to the extent of his financial support for you and his parents.”  The U.S. citizen husband lived in the United States with both of his elderly parents who are lawful permanent residents of the U.S. and paid for the household of his wife and two infant children in the United Kingdom.

• The USCIS also stated that statements from the applicant’s U.S. citizen husband that he is suffering ‘severe depression’ that is likely to affect his general health, together with a letter from a psychologist indicating that the U.S. citizen husband received supportive help in coping with his psychological depression and anxiety, were insufficient to prove extreme hardship.

• Specifically, the USCIS stated that the psychological letter contained no clinical diagnosis or prognosis for stabilization or improvement and did not indicate the severity of his psychological problems.

The USCIS concluded that that while denial of the applicant’s admission would have an adverse impact upon her family, this adverse effect is no greater than one would expect from a prolonged absence of a loved one due to inadmissibility.  It stated that the evidence presented by the couple did not demonstrate the U.S. citizen husband’s distress is beyond the emotional/psychological hardship which separation from loved ones typically presents in visa refusals, and did not rise to the level of extreme hardship either singularly or in the aggregate.

Extreme hardship is not a term of”fixed and inflexible meaning”; establishing extreme hardship is “dependent upon the facts and circumstances of each case.” Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999). The Board of Immigration Appeals (BIA) in Matter of Cervantes-Gonzalez lists the factors it considers relevant in determining whether an applicant has established extreme hardship. The factors include :

• Presence of a lawful permanent resident or U.S. citizen spouse or parent in this country;
• Qualifying relative’s family ties outside the United States;
• 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;
• 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. ld. at 565-566.

The BIA indicated that these factors relate to the applicant’s “qualifying relative.” ld. at 565-566.  In Matter of O-J-0-, 2 1 I&N Dec. 38 1, 383 (BIA 1996), the BIA stated that the factors to consider in determining whether extreme hardship exists “provide a framework for analysis,” and that the “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” It further stated that “the trier of fact must consider the entire range of factors concerning hardship in their totality” and then “determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” (citing Matter of lge, 20 I&N Dec. 880, S82 (BIA 1994 ).

To support its reasoning in the original denial of the couple’s I-601 waiver application, the USCIS cited and presented the the following case law:

In other cases of extreme hardship, it has been found that the mere loss of employment, the inability to maintain one’s present standard of living or to pursue a chosen profession, or separation of a family member or cultural readjustment do not constitute extreme hardship. Matter of Pilch, 2 1 I&N Dec. 627 (BIA 1996); Marquez-Medina v INS, 765 F.2d 673 (7th Cir. 1985); Bueno-Carillo v. Landon, 682 F2d 143 (7th Cir. 1982); Chokloikaew v INS, 60 I F.2d 2 16 (5th Cir. 1979), Banks v INS, 594 F.2d 760 (9th Cir. 1979; Matter of Kojoory, 12 I&N Dec. 2 15 (BIA 1967).

To overcome the previous findings of the USCIS, I prepared a 20 page legal memorandum discussing the extreme hardships and other persuasive factors of the case.  I presented our own case law that was relevant to the facts and circumstances of our case and supported approval of our waiver application.  Additionally, a table of exhibits referenced a variety of objective evidence in support of a showing of “extreme hardship” including:

• Proof of U.S. Lawful Permanent Residence of the U.S. Citizen Husband’s parents and the potential loss of this residence if they were forced to re-locate abroad with their son
• Medical Records of the U.S. Citizen husband’s father confirming his High Blood Pressure, Hypertension, Hernia Surgery, and upcoming Prostate Surgery
• Psychological Evaluation from an experienced clinical psychologist confirming the U.S. Citizen husband’s Dysthymic and Generalized Anxiety Disorders and vital need to remain in the U.S. for regular treatment
• Medical Records of the couple’s infant children who were pre-maturely born after only 23 weeks of gestation and suffer from life-threatening conditions including Chronic Lung Disease (bronchopulmonary dysplasia), Patent ductus arteriosus, feeding difficulties, Bacterial sepsis, Hypotension, Respiratory Distress, Pneumothorax, and Isolated Intestinal Perforation.
• Proof of financial contributions from the U.S. Citizen Husband for his British Wife and family
• Proof that the U.S. Citizen Husband’s business could not be operated from abroad and would suffer closure should he be forced to re-locate to the United Kingdom in order to be with his family
• Affidavits of Good Moral Character and Rehabilitation for the applicant by her friends and family

As a result of our efforts, the couple’s I-601 “Extreme Hardship” Waiver Application was approved and this family now lawfully resides together in the United States.