CASE: I-601 Hardship Waiver of Inadmissibility
APPLICANT / BENEFICIARY: Argentinian
LOCATION: Washington, D.C.
Our client came to the United States from Argentina as an F-1 student, and later got a job after graduation, eventually getting an H-1B visa.
He later married a U.S. citizen wife and his wife filed an I-130 petition for him. He concurrently filed an I-485 adjustment of status application in 2012.
The I-130 petition was approved; however, the USCIS issued a Notice to Intent to Deny on December 8, 2012 and requested our client to submit an I-601 waiver application because he was found inadmissible due to his previous criminal conviction.
In 2007, our client was convicted of a minor drug possession case in the United States. This conviction made him ineligible for adjustment of status. As a result of this conviction, he was found to be inadmissible pursuant to Section 212(a)(2)(A)(i)(II) of the INA. (Criminal ground of inadmissibility).
After the Notice of Intent to Deny was issued, our client contacted our office in December 2012 to pursue his I-601 waiver. Based on his story and surrounding circumstances (hardship to his U.S. citizen wife if he is deported), our office determined that he had a good chance of winning. Eventually, he retained our office on December 12, 2012.
Section 212(h) of the Immigration and Nationality Act provides a waiver of INA § 212(a)(2)(A)(i)(II) if the crime relates to a single offense of possession of 30 grams or less of marijuana and the Applicant has a U.S. Citizen spouse who would suffer extreme hardship if he or she was denied admission into the United States. In Matter of Martinez-Espinoza, 25 I & N Dec. 118 (BIA 2009), the BIA held that a 212(h) waiver may be sought for a drug paraphernalia conviction that relates to a single offense of simple possession of marijuana. INA § 212(h) provides for a discretionary waiver of the criminal inadmissibility ground. To qualify for the waiver, the alien must establish that his or her U.S. Citizen or lawful permanent resident spouse would suffer extreme hardship if the alien were denied admission. INA § 212(h).
There is a seminal BIA case that deals with this waiver. In Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999), the BIA identified factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the alien were denied admission. Those factors include: the presence of LPR or USC family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.
Our client’s I-601 application had a good chance since our client’s U.S. Citizen wife suffers from the misalignment of her foot and related surgeries due to a past incident. In the I-601 brief and supporting documents, our office included extensive medical reports from his wife. We argued that if he was removed from the United States, extreme hardship to his wife is clearly foreseeable and evident. His wife needs consistent and continuous physical therapy to help deal with her pain and she would not be able to take care of her own needs and the bulk of their family chores, most importantly taking care of their infant child. Also, it would be extremely difficult for her to get the same level of physical therapy and satisfactory access to medical services in Argentina in case she joins our client there.
In our brief, we also argued that our client and his wife have maintained strong family ties in the United States, that his wife will have difficulty in finding the same level of employment in Argentina, that our client has good employment in the United States, and that his U.S. citizen child and his wife will face extreme financial and emotional difficulties if he is removed.
On December 18, 2012, we filed the I-601 waiver application which included the brief in support, his wife’s medical records, and other documents that demonstrated hardship to his wife if he is removed from the United States.
On May 15, 2013, his I-601 waiver was approved. Now, his I-485 green card application will be considered again and will likely be approved.
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