I-212 Waiver and I-601 Extreme Hardship Waiver Approved for Montenegrin

I-212 Waiver and I-601 Waiver News

The applicant in this case is a citizen of Montenegro who entered the U.S. in 2002 using someone else’s passport.  He was subsequently removed from the U.S. in 2011.  He was deemed inadmissible based on Section 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for seeking to procure admission to the United States through fraud or misrepresentation; Section 212(a)(9)(B)(i)(II) of 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 Section 212(a)(9)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C.§ 1182(a)(9)(A)(ii) for seeking admission within five years of the date of his removal.

This is a common situation facing applicants who require approval of multiple waivers arising out of an entry into the United States based on fraud or misrepresentation, followed by an overstay of more than 1 year, followed by their removal.

1. In these types of situations, a waiver must be requested for each separate ground of admissibility.  In practical terms, a single waiver package consisting of the I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212), I-601 Application of Waiver of Grounds of Inadmissibility (Form I-601), and comprehensive legal brief (with supporting documentation) requesting waiver of the three separate grounds of inadmissibility would suffice.  Additionally, a showing of extreme hardship and favorable exercise of discretion on the I-601 waiver almost always means approval of the I-212 waiver.  This is because a grant of the “I-212 waiver” is a discretionary decision based on the weighing of negative and positive factors; and this analysis is already conducted for purposes of the I-601 “extreme hardship” waiver.

2. The misrepresentation or fraud can be waived pursuant to Section 212(i) of the Act, 8 U.S.C. § 1182(i).  The 10 year unlawful presence bar can be waived pursuant to Section 212(a)(9)(B)(v) of the Act, 8 U.S.C. § 1182(a)(9)(B)(v).  The “5 year bar” for having been previously removed can be “waived” pursuant to Section 212(a)(9)(A)(iii) of the Act, 8 U.S.C. § 1182(a)(9)(A)(iii).

3. A waiver of inadmissibility under section 212(i) of the Act and under section 212(a)(9)(B)(v) of the Act is dependent on a showing that the bar to admission imposes extreme hardship on a qualifying relative, which includes the U.S. citizen or lawfully resident spouse or parent of the applicant.

The only qualifying relative in this case is the U.S. citizen spouse of the Montenegrin.  The couple’s two children are not deemed to be “qualifying relatives” for purposes of the waiver of inadmissibility under Section 212(i) and Section 212(a)(9)(B)(v).  However, although children are not qualifying relatives under the statute, the USCIS does consider that a child’s hardship can be a factor in the determination whether a qualifying relative experiences extreme hardship.  If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and the USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez 21 I&N Dec. 296, 301 (BIA 1996).

What this means is that extreme hardship to the children should be detailed and documented, but always tied to how that would cause or increase extreme hardship to the qualifying relative.  In other words, when the children suffer, the mother suffers as a result.

4. The favorable factors in this case that led to approval of the I-212 and I-601 waiver are detailed below:

•  U.S. citizen wife is unable to work because she is caring for her parents.
• U.S. citizen wife was forced to move out of her house and rent the house in order to pay the monthly mortgage payments.
• Financial documentation indicates the Montenegrin husband and his U.S. citizen wife had a monthly mortgage payment of $1 ,285.44.
• A copy of the 2008 federal income tax return for the husband and his wife indicates that the couple had an adjusted gross income of $24,938, and that the occupation of the U.S. citizen wife was customer service.
• U.S. citizen wife became a stay-at-home mother after the birth of their second child in June 2008, in order to care for their two young children.
• In an affidavit dated April 11, 2011, the U.S. citizen wife states that she has no independent source of income.
• A psychological evaluation indicates that the U.S. citizen wife stated that her husband was the only provider in the family, and that she is now getting food stamps.
• U.S. citizen wife states that she was involved in a car accident in September 1998, in which she suffered broken bones and spinal damage. Medical documentation indicates that the U.S. citizen wife suffered lower back pain, numbness in the left hand and right leg, and temporomandibular joint disorder (TMJ) of the right jaw.
• Medical documentation indicates that the U.S. citizen wife was diagnosed with two lumps in her breast in 2012. Although the growths were not cancerous, her condition needs to be monitored with continued routine examinations
• U.S. citizen wife has a history of psychological problems. Following the car accident in September 1998, the aU.S. citizen wife was diagnosed with depression and post-traumatic stress disorder.
• In a letter dated April 12, 2011 from the psychiatrist who treated the U.S. citizen wife with her psychological problems following the car accident, the psychiatrist states that the U.S. citizen wife began seeing the doctor again in February 2011 for depression, and the psychiatrist prescribed Zoloft for her depression and insomnia.
• A psychological evaluation performed by a licensed psychologist, states that the U.S. citizen wife is diagnosed with Major Depressive Disorder, Severe, Recurrent. The psychologist states that the U.S. citizen wife is unable to handle her family responsibilities without the assistance of the applicant.
• U.S. citizen wife has resided in the United States since 1998, and both her parents are lawful permanent residents residing in the United States.
• Medical documentation for both parents of the U.S. citizen wife indicates the father of the U.S. citizen wife is disabled as a result of a car accident in 2006, and suffers from post-traumatic memory difficulty, post-concussion syndrome, post-traumatic stress disorder/mood disorder, post-traumatic neck and low back pain, periodic dizziness, headaches, and left hip pain.
• A doctor’s statement states that the U.S. citizen wife is the main care giver for her father.
• Medical documentation indicates that the mother of the U.S. citizen wife is suffering from fibromyalgia, depression, hypertension, and hyperlipidemia, and that she requires help and assistance from the applicant’s spouse.
• U.S. citizen wife has two brothers in the United States, and evidence shows that the older brother is currently incarcerated, and the younger brother entered college as a freshman in the Fall of 2011, thus neither brother is able to assist with providing care for the parents of the U.S. citizen wife in the United States.
• U.S. citizen wife was born in Montenegro, but is ethnic Albanian, she speaks the Albanian language, and does not speak the Serbo-Croatian language, as do the majority of the residents of Montenegro. Only 5.3% of the population of Montenegro speak Albanian, and this would limit chances for the U.S. citizen wife to find employment in Montenegro
• U.S. citizen wife and their two children tried to live in Montenegro with the Montenegrin husband during the summer months of 2011. Their children became ill and had to undergo medical treatment for acute entercolitis infections, and medical documentation was submitted to verify the condition of the their children.
• Evidence was submitted to show that the Montenegrin husband was unable to find employment in Montenegro to support his wife and children at the time of their stay in Montenegro.