CASE: I-601 Hardship Waiver of Inadmissibility
APPLICANT / BENEFICIARY: Indian
LOCATION: Mumbai, India (Applicant) / North Carolina (I-130 Petitioner / Applicant’s US Citizen wife)
Our client first came to the United States on a valid F-1 visa in May 2007 to attend college in the U.S. Unbeknownst to him, he fell out of status in November 2007. After he found out about this in 2009, he immediately applied for F-1 reinstatement and filed Form I-539 to the USCIS Vermont Service Center in 2009. The USCIS approved his application and reinstated his F-1 status.
After his studies were over, our client was employed and his employer petitioned him for H-1B status in February 2011. The Petition was approved and he started working and paying taxes in accordance with the terms and conditions of his H-1B.
Our client then married his U.S. Citizen wife in India in November 2011.
In February 2012, our client went to the U.S. Consulate in Mumbai, India for his H-1B visa stamping. Over there, the consular officer denied his H-1B visa stamping on his passport and gave him a 221g form, asking for some documents such as tax returns, an approved I-797C letter from H-1B status, and pictures of the work place, pay stubs, and etc. Our client submitted all of the requested documents, however, when he appeared for his second visa stamping interview, the consulate officer denied his visa and gave him a letter which states that he is inadmissible under the INA Section 212(a)(6)(c), alleging that our client submitted fraudulent documents to obtain immigration benefits or a visa.
Our client did not commit fraud, but instead of appealing the decision, he planned to file a waiver of inadmissibility to re-unite him with his U.S. citizen wife faster. Our client’s wife retained us on April 9, 2013 for the I-601 waiver for her husband. Our firm thoroughly analyzed whether the I-601 waiver application will likely be successful. Based on our client’s story and surrounding circumstances (hardship to U.S. citizen wife) if our client is barred to come to the United States), our office determined that her husband has a good chance of winning the I-601 application as long as it is extensively prepared.
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 wife (U.S. Citizen) recently had surgery. Also, our client’s wife has always encountered various diseases whenever she goes back to India. She had typhoid and chickenguniya when she visited India in 2011 and 2012. She also suffers depression, anxiety, and insomnia due to the hardship of not having a husband to help with her expenses and provide for her needs. In the I-601 brief and supporting documents, our office included extensive medical reports of our client’s wife. We argued that if our client is barred to enter the United States, extreme hardship to her is clearly foreseeable and evident. Our client needs consistent and continuous medical check-ups with her doctors for her recent surgery and its related symptoms. Also, it would be extremely difficult for our client’s wife to get the same level of medical care and satisfactory access to medical services in India in case our client’s wife joins our client there.
In our brief, we also argued that our client has maintained strong family ties in the United States and that she will have difficulty finding the same level of employment in India.
On January 2, 2014, we submitted our I-601 waiver application to the USCIS which included a brief in support, our client’s medical records, and other documents that demonstrated hardship to our client’s wife if our client is barred to come to the United States. The I-601 waiver for our client was approved on February 7, 2014. Now, without the inadmissibility ground, our client is eligible for an immigrant visa.