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CASE:  Adjustment of Status, I-601 Hardship Waiver of Inadmissibility



Our client entered the U.S. in 2000 as a tourist.  Later, she married to U.S. citizen husband and her husband filed an I-130 petition for her and she concurrently filed an I-485 adjustment of status application in 2010.  Our client also filed an I-601 hardship waiver application with her adjustment of status with the help of her previous immigration lawyer.  She needed to file an I-601 waiver because she was found inadmissible due to her previous immigration law violation.

In 1992, our client tried to come to the United States from Canada with someone else’s passport.  She encountered the border patrol officer and the officer denied her entry.  As a result of her this, she was found to be inadmissible pursuant to Section 212(a)(6)(C)(i) of the INA.  (Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible).

In 2010, her green card application was denied due to this fraud, and because the I-601 that should have waived the fraud inadmissibility was denied.  The denial pointed out that there was not enough hardship to meet the standards for the I-601 waiver application. She filed an appeal to AAO and this was denied as well.

Our client contacted our office in January 2011 to pursue her I-601 waiver once again. She was not yet in removal proceedings so she re-filed her green card application. Our firm thoroughly analyzed why her previous I-601 waiver application was denied.  Based on her story and surrounding circumstances (hardship to her U.S. citizen husband if she is deported), our office determined that she has a good chance to win I-601 application as long as it is extensively prepared.  Our client already re-filed her I-485 adjustment of status application, but she sought legal assistance from our office for her I-601 waiver.  Eventually, she retained our office on February 8, 2011.

If someone is found to be inadmissible under Section 212(a)(6)(C)(i) of the INA, INA Section 212(i) provides for a discretionary waiver of the fraud or misrepresentation inadmissibility ground.  To qualify for the waiver, the alien must establish that his or her US Citizen spouse would suffer extreme hardship if the alien were denied admission.  INA Section 212(i)(l).  In addition to the equities presented, the USCIS may consider the nature of the fraud or misrepresentation.

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 the 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 husband suffers from chronic severe pain in his bone muscles due to an past incident in which he was shot in the leg. In the I-601 brief and supporting documents, our office included extensive medical reports of her husband.  We argued that if she was removed from the United States, extreme hardship to her husband is clearly foreseeable and evident.  Her husband needs consistent and continuous physical therapy to help deal with his pain. Also, it would be extremely difficult for him to get the same level of physical therapy and satisfactory access to medical services in Grenada in case he joins our client there.  Our office also included the U.S. Department of State Travel Advisory Section for Grenada to highlight the extremely poor medical services in Grenada.

In our brief, we also argued that our client and her husband have maintained strong family ties in the United States, that her husband will have difficulty in finding the same level of employment in Grenada, and that her LPR daughter and her husband will face extreme financial and emotional difficulties if she is removed.

In April 2011, our client had her second I-485 adjustment of status interview in New York.  On April 7, 2011, the CIS NY office requested our client to submit an amended extreme hardship statement and supporting documents for her I-601 waiver application.  On April 22, 2011, our client submitted our I-601 waiver application which included the brief in support, her husband’s medical records, and other documents that demonstrated hardship to her husband if she is removed from the United States.

Her I-601 waiver and I-485 green card application were approved on September 14, 2011. She is finally a green card holder and her inadmissibility has been completely waived.


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