Waiver Approvals - Page 6 of 9 - Smart Immigration Lawyer

Client Approval: I-601A Provisional Waiver Approved within 3 Months for Mexican Client

May 7, 2015 By Michael Cho Immigration Lawyer Leave a Comment

We recently received approval of the I-601A Provisional Waiver that we prepared and submitted for a Mexican applicant married to a U.S. citizen husband within 3 months of its submission to the USCIS.

Our I-601A Provisional Waiver application package prepared by our law firm included a complete set of USCIS forms requesting consideration of the I-601A Provisional Waiver; a 25 page waiver statement detailing relevant case law favorable to my client’s situation and presenting the extreme hardships that applied to this case; and a comprehensive collection of exhibits to prove the extreme hardships being presented.

To be eligible for the I-601A Provisional Waiver for Unlawful Presence, an applicant must fulfill ALL of the following conditions:

Be 17 years of age or older.
Be the spouse, child, or adult child of a U.S. citizen or lawful permanent resident.
Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
Have a pending immigrant visa case with the Dept. of State for the approved immediate relative petition and have paid the Dept. of State immigrant visa processing fee.
Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or lawful permanent spouse or parent.
Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
Not have been scheduled for an immigrant visa interview by Dept. of State before January 3, 2013.
You are inadmissible ONLY for unlawful presence in the United States for more than 180 days but less than 1 year during a single stay (INA Section 212(a)(9)(B)(i)(I)), or unlawful presence in the United States for 1 year or more during a single stay (INA Section 212(a)(9)(B)(i)(II).

An applicant is NOT eligible for the I-601A Provisional Waiver for Unlawful Presence if any of the following conditions apply:

You are subject to one or more grounds of inadmissibility other than unlawful presence.
You have a pending Form I-485 Application to Register Permanent Residence or Adjust Status with the USCIS
You are in removal proceedings, unless your removal proceedings have been administratively closed and have not been placed back on the Dept. of Justice, Executive Office for Immigration Review calendar to continue your removal proceedings at the time you file the Form I-601A.
You are subject to a final order of removal, deportation, or exclusion, or to the reinstatement of a prior order of removal, deportation, or exclusion
You are subject to a Dept. of Homeland Security (DHS) order reinstating a prior order of removal, deportation, or exclusion
Dept. of State initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.
You fail to establish that the refusal of your admission would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion

In this case, the applicant is a Mexican national who entered the U.S. without inspection at the age of 19 to find a more secure life in the United States. Since entering the U.S., she learned English, obtained gainful employment, and has remained law-abiding to the present day. She met her U.S. citizen husband, fell in love with him, and had a son together.

The favorable factors of this case discussed in detail in our I-601A Provisional Waiver application include:

The medical condition of the couple’s U.S. citizen son who suffers from anemia.
The medical condition of the U.S. citizen husband who suffers from Generalized Anxiety Disorder, partly as a result of the burden he has taken on to financially support his younger brother and his parents.
The financial crisis that this family is undergoing, including declaration of bankruptcy by the U.S. citizen husband’s parents. The parents subsequently rely upon the joint-income of their son and daughter-in-law (the U.S. citizen husband and his Mexican wife, respectively) who work to support the parents, themselves, their son, as well as the U.S. citizen husband’s younger brother.
The financial strain placed upon the U.S. citizen husband as he and his wife struggle to pay his parent’s mortgage for the family home where the entire family all reside
The employer-provided health insurance that the U.S. citizen husband and their infant son rely on to receive treatment for their medical conditions, and its termination should he be forced to re-locate to Mexico to be with his wife
The extensive family ties of the U.S. citizen husband in the U.S. including three brothers, two sisters, and an extended family of cousins, aunts, and uncles, all who reside in close proximity with each other.
The close-knit and interrelated relationships between the family members that would lead to a spiral of psychological distress upon the entire family should the applicant be forced to return to Mexico

This case is an important one because it demonstrates that cumulative hardships and individual circumstances can “add up” to meet the extreme hardship standard. While any single hardship in this case may not be considered “extreme” in and of itself, it was only by meticulously demonstrating how they interrelate with each other and create “downward spiral of expanding and worsening hardships” (my description) that we obtained approval of this I-601A Provisional Waiver.

Client Approval: I-601 Waiver for Crime Involving Moral Turpitude Approved in 11 Days

May 7, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a citizen of South Korea 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 of a crime involving insurance fraud and sentenced to one-year probation.

Our office was contacted after the South Korean wife and her U.S. citizen husband prepared and 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 Seoul. Their “self-prepared” I-601 Waiver triggered a comprehensive “Request for Evidence” from the USCIS stating that the couple had failed to adequately establish and prove “extreme hardship.”

This was a particularly difficult case because the U.S. citizen husband already resides in South Korea with his wife, thus requiring us to overcome the assumption that any hardship he is suffering is not extreme since he has already re-located outside of the U.S.

The Request for Evidence from the USCIS specifically stated the following:

This office may approve a waiver of the inadmissibility ground(s) under section 212(h) of the INA, if you can show that either:

• You have a qualifying relative who is a U.S. citizen or lawful permanent resident of the United States; and
• Your qualifying relative would suffer extreme hardship on account of your ineligibility to immigrate; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

In addition to the above requirements, if an applicant has been convicted of a violent or dangerous crime, USCIS will not waive the inadmissibility as a matter of discretion unless the individual can show an extraordinary circumstance, such as:

• One involving national security or policy considerations; or

• If the denial of your admission would result in exceptional and extremely unusual hardship.

Your application does not include sufficient evidence to establish that your qualifying relative spouse, your U.S.-born husband, [Name Withheld], would suffer extreme hardship if you are refused admission to the United States. Also, it has not yet been established that it would be an extreme hardship if your husband were to remain in the United States apart from you. And, it has also not yet been explained or established by your husband why it would be an extreme hardship for him to relocate outside of the United States to be with you and your infant daughter in South Korea. “Extreme hardship” is beyond that which normally does occur in any visa denial. Family separation and the loss of support, while undoubtedly difficult, are not, in and of themselves an “extreme hardship.”

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 ).

Beyond simply responding to the Request for Evidence, we prepared an entirely new I-601 “extreme hardship” waiver, including a thorough legal and factual discussion of the extreme hardships relevant to this case. A detailed table of exhibits providing objective proof of every crucial assertion made in our waiver was also included, as it is with all of our waiver applications. Our I-601 waiver was subsequently approved in 11 days to the enormous relief of our clients.

In order to overcome the initial opinion of the USCIS, 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).

We made sure every single facet of their case was documented and that the objections raised by the USCIS in their Request for Evidence was fully addressed to maximize the chances of approval.

Once we identified the most important factors of the case, we 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.”

We focused on the medical conditions of the U.S. citizen husband and his U.S. citizen mother, and how the U.S. citizen’s husband’s physical and psychological state would worsen in two scenarios: if he remained in the U.S. without his wife; or if he permanently re-located to South Korea to be with his wife, abandoning his ill U.S. citizen mother who has no one else to help care for her.

I also discussed and presented evidence of my client’s rehabilitation, good moral character, and her overall dedication as a wife and mother who is integral to the daily care of her ill U.S. citizen husband and their infant daughter.

The favorable factors in this case included the following:

The U.S. citizen husband suffers from Generalized Anxiety Disorder and Dysthymic Disorder, both major mental disorders recognized by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition
There is a long history of mental illness in the U.S. citizen husband’s family, especially with regard to his mother who has struggled with depression, manic depression, and anxiety most of her life.
The U.S. citizen husband developed two medical conditions, allergic asthma and allergic rhinitis, due to the high levels of air pollution in South Korea.
The U.S. citizen husband’s mother suffers from Stage 3 Lyme’s disease, as well as severe pain caused by fibromyalgia and degenerative disc disease of her spine. She also suffers from hypothyroidism caused by Hashimoto’s disease, a serious autoimmune disease. She has no one else to help take care of her aside from her son.
The U.S. citizen husband’s mother desperately needs to take strong antibiotics to treat the Lyme disease that continues to spread throughout her body, but cannot risk the side effects from the drugs without her son living nearby to aid her should the side effects incapacitate her.
The U.S. citizen husband and his South Korean wife do not earn enough to meet their monthly financial expenses. The U.S. citizen husband is thus unable to afford visits to the U.S. to take care of his mother as her physical and psychological state deteriorates.

As a result of our assistance, this I-601 waiver was approved and the family can now reside together in the U.S.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Client Approval: I-601 Extreme Hardship Waiver Approved for Mexican Wife

February 18, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 “Extreme Hardship” Waiver for a Mexican applicant married to a U.S. citizen husband. The U.S. citizen husband contacted my office after his Mexican wife attended her consular interview at Ciudad Juarez and was deemed inadmissible to the U.S. based on being subject to the “10 year unlawful presence bar” pursuant to INA Section 212(a)(9)(B).

Our I-601 Waiver application package included a complete set of USCIS forms requesting consideration of the I-601 Waiver; a 21 page waiver statement detailing relevant case law favorable to my client’s situation and presenting the extreme hardships that applied to this case; and a comprehensive collection of exhibits to prove the extreme hardships being presented.

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.

”Extreme hardship,” for purposes of the I-601 Waiver, has a special meaning under U.S. immigration law. The factors considered relevant in determining extreme hardship include:

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

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

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

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

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

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

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

I drafted a comprehensive 21 page waiver memorandum outlining the relevant case law favorable to my client’s situation. It also discussed in detail the medical, financial, emotional, and psychological hardships the U.S. citizen husband (and their children) are presently suffering from, and proved how they would worsen in the event of continued separation of this family. I also highlighted a variety compelling factors in the lives of the applicant and her family that I believed warranted an exercise of favorable discretion on the part of the USCIS.

Some of the relevant factors in this case included the following:

The U.S. citizen daughter suffers from Febrile Seizures, Epilepsy, Unconjugated Hyperbilirubinemia, and has a history of life-threatening incidents that required surgery and treatment. She also suffers from depressive disorder, aggravated by the absence of her mother from her life due to her mother’s inadmissibility to the U.S.
The other U.S. citizen daughter is hyperactive and has been injured numerous times due to her uncontrolled behavior, including plastic surgery needed for her most recent injury to her skull.
The U.S. citizen husband suffers from crippling Anxiety Disorder, overwhelmed by the burden of caring for two sick children while under imminent threat of termination by his employer due to his absences from work to take care of his children and visit his wife in Mexico.
The loss of his employment would terminate the medical insurance he receives through his Union-job, which helps pay for the medical expenses incurred by himself and his family
The loss of his employment would cause financial collapse given his existing financial debt including mortgage on the family home
The U.S. citizen’s extensive family ties to the U.S. including brothers and sisters
The country conditions of the region in Mexico where the wife resides (and where the family would have to re-locate to in the event she is not admitted), including specific instances of violent crimes that have recently occurred in her immediate vicinity

As a result of the I-601 Waiver prepared and submitted by my office, the waiver application was approved and this family can soon be re-united inside the United States.

212(d)(3) Non-Immigrant Waiver and Humanitarian Parole – Client Review by Stuart L.

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

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

I was concerned about using the internet to find a lawyer, but persuaded by the great reviews of Michael Cho’s work. The reviews are right on the mark. Michael called back immediately, and was careful to warn me that visa waivers are hard to get (the opposite of a hard sell). He is hard working, responsive and quite brilliant. I have never read work as well composed as his cover letter for the application I was working on. To top all of this, his fees are very reasonable. It looks like the application is now successful. I had paid a lot more in the past for poor quality work by a locally recommended firm. I appreciate Michael enormously and am so glad that I trusted internet reviews! A great lawyer.

Stuart L.

Client Approval: Humanitarian Parole Approved for Medical Emergency within 23 Days of Filing

October 12, 2014 By Michael Cho Immigration Lawyer Leave a Comment

Our office recently received approval of a Humanitarian Parole request filed on behalf of a client who is subject to the 10 year “unlawful presence bar” pursuant to INA Section 212(a)(9)(B)(2). She previously entered the U.S. on a B-2 visitor visa but remained out of status in the U.S. for over 3 years before departing back to her home country.

Parole is governed my numerous Public Laws and U.S. national policy that includes INA Section 212(d)(5) which states:

The Attorney General may, except as provided in subparagraph (B) or in section 1184 (f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

It is important to realize that parole is a discretionary authority that allows for the temporary entry of individuals into the United States for urgent humanitarian reasons or for significant public benefit.

It does not constitute “admission” to the United States and it does not convey any immigration benefits to the beneficiary. Common parole requests include medical emergencies, the unification of family members (particularly parents and young children), civil and criminal proceedings, as well as other emergent requests.

The USCIS, ICE and CPB exercise concurrent parole authority. The USCIS authorizes parole for aliens outside the United States for many reasons, including humanitarian. ICE authorizes parole for aliens outside of the United States for many reasons, including law enforcement and intelligence purposes as well as to release detained aliens from custody. CBP authorizes parole at United States ports of entry, including pre-flight inspection facilities.

Humanitarian Parole is an extraordinary measure that allows an otherwise inadmissible alien to come to the United States for a compelling emergency. Cases involving life-threatening medical emergencies, family unification, children under 16 years of age, and physically and/or mentally challenged individuals receive immediate expedited review.

Approximately 1200 Humanitarian Parole requests are received per year and only 25% are granted. The vast majority of Humanitarian Parole requests as thus denied.

I prepared a comprehensive Humanitarian Parole application package on behalf of my client that included:

A detailed point-by-point memorandum presenting the emergency, compelling, and urgent nature of her request
A discussion of my client’s strong, permanent, and irrefutable ties to her country of residence that refuted any notion of “immigrant intent”
A discussion of her rehabilitation from her previous violation of U.S. immigration laws, her good moral character, and that she poses no risk of harm to the United States upon her entry
A discussion of the life-threatening consequences to her U.S. citizen brother should she not be allowed immediately into the United States
A discussion of the significant public benefits to the United States and its citizens served by my client’s entry into the U.S.
A table of exhibits with objective evidence that documented every statement made in the memorandum

Within 23 days of submitting our Humanitarian Parole application package, our request was approved by the USCIS. Our client was granted parole authorization to enter the United States for 7 weeks despite being subject to the 10 year “unlawful presence bar.”

Client Approval: I-601 Waiver Approved for Crime Involving Moral Turpitude by Immigration Waiver Lawyer Michael Cho

October 8, 2014 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a 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.

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.

Client Approval: I-601A Provisional Waiver Approved by Showing of Extreme Hardship

September 30, 2014 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601A Provisional Waiver for a Guatemalan applicant married to a U.S. citizen wife. The clients contacted my office after their previous attorney erroneously filed for an adjustment status on behalf of the couple (a process which the applicant clearly did not qualify for).

I corrected the error by filing the I-824 Application for Action on an Approved Petition. The USCIS consequently forwarded the approved I-130 Petition for Alien Relative to the National Visa Center. The Affidavit of Support and Immigrant Visa Application Processing Fees were soon issued by the National Visa Center. By this time, the I-601A Provisional Waiver package was already completed by my office and ready for submission to the USCIS waiver adjudication unit.

Our I-601A Provisional Waiver application package included a complete set of USCIS forms requesting consideration of the I-601A Provisional Waiver; a 17 page waiver statement detailing relevant case law favorable to my client’s situation and presenting the extreme hardships that applied to this case; and a comprehensive collection of exhibits to prove the extreme hardships being presented.

The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in 8 CFR 212.7(e) and warrant a favorable exercise of discretion. To be eligible for the I-601A Provisional Waiver for Unlawful Presence, you must fulfill ALL of the following conditions:

Be 17 years of age or older.
Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
Have a pending immigrant visa case with the Dept. of State for the approved immediate relative petition and have paid the Dept. of State immigrant visa processing fee.
Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
Not have been scheduled for an immigrant visa interview by Dept. of State before January 3, 2013.
You are inadmissible ONLY for unlawful presence in the United States for more than 180 days but less than 1 year during a single stay (INA Section 212(a)(9)(B)(i)(I)), or unlawful presence in the United States for 1 year or more during a single stay (INA Section 212(a)(9)(B)(i)(II).

In this case, the applicant is a Guatemalan national who entered the United States without inspection. He married a U.S. citizen wife, is a devoted father to three children (two of whom are from a previous relationship of the US citizen wife), and also has a mother who is a naturalized U.S. citizen residing in the United States. The favorable factors of this case included some of the following:

Two children of the couple have visitation with their biological father under the terms of a legal custody agreement. If the U.S. citizen wife was forced to re-locate to Guatemala to be with her husband, her daughters would likely not be allowed to move out of the U.S. This is a powerful form of “legal hardship” which should always be highlighted and detailed on any I-601 Waiver and I-601A Provisional Waiver Application.
The family survives financially solely due to the income provided by the Guatemalan applicant. It is his income that allows this family to pay for its living expenses and medical bills.
The U.S. citizen wife has been diagnosed with Adjustment Disorder and Panic Disorder. She was prescribed medication for her conditions in 2010. A history of prior diagnoses and treatment is much more persuasive than a recent evaluation conducted solely for the purposes of an immigration application.
The U.S. citizen wife’s mother suffers from severe medical conditions of her own, and relies upon her daughter to watch over her health and assist in day-to-day tasks.
The Guatemalan applicant’s U.S. citizen mother suffers from Clinical Depression along with a number of severe medical conditions. She relies upon her son to take care of her including taking her to the hospital and making sure she takes the right medications.
The U.S. citizen wife is undergoing severe financial hardship including the filing of bankruptcy just several years ago. Without her husband’s financial assistance, she would be unable to take of her three children, afford medical treatment for her illnesses, or be able to afford rent on their family home.

It should also be noted that the way extreme hardships are presented, discussed, and proven often “make or break” an I-601A Provisional Waiver Application. Extreme hardships should be highlighted and elaborated upon in a realistic and credible manner. Every hardship should also be shown to exist and possibly grow worse in two scenarios: if the qualifying relative is separated from the applicant and if the qualifying relative has to re-locate to another country in order to be with the applicant. Every hardship statement made should be proven with objective evidence that is included in a List of Exhibits.

I am often asked to review waiver applications that were prepared and submitted by other attorneys and subsequently denied. Some of these applications that I review are missing detailed waiver memorandum drafted by the attorney altogether. Others have “cover letters” of 2-3 pages introducing the case, then an unmanageable number of exhibits that are likely to get ignored by the USCIS officer. In almost every case I am asked to review, I see significant ways the waiver application can be improved upon to more effectively convey the extreme hardships being suffered by the qualifying relative(s).

As a result of the comprehensive package we prepared and submitted on behalf of the Applicant, this I-601A Provisional Waiver application was approved.

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