CASE: I-601 Hardship Waiver of Inadmissibility
APPLICANT / BENEFICIARY: Mexican
LOCATION: I-130 petitioner is in Pittsburgh, PA and I-601 beneficiary is in Juarez, Mexico
Our client came to the United States from Mexico in February 2002 without inspection and admission. Later, he married his U.S. citizen wife in April 2012. In July 2012, his U.S. Citizen wife filed an I-130 petition for him and his biological children (Petitioner’s step-children) who were residing in Mexico. These I-130 petitions were approved on March 7, 2013. At the time of I-130 petition filing, they did not receive legal assistance from lawyers. Therefore, our client went back to Mexico to appear at his immigrant visa interview despite the fact that he had entry bar because of his unlawful presence and illegal entry to the U.S.
In February 2014, our client and his two children had an interview at the U.S. Consulate Office in Mexico. The step-children’s immigrant visas were approved. However, for our client, he was asked to file a 601 waiver of inadmissibility, due to his illegal entry in 2002 and illegal stay in the United States. To get legal assistance for this I-601 waiver for our client, our client’s wife contacted our office in February and retained our office on February 27, 2014.
Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States
INA § 212(i) provides for a discretionary waiver of the entry without inspection 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 § 212(i)(1). In addition to the equities presented, the USCIS may consider the nature of the inadmissibility ground.
There is a seminal BIA case that deals with this type of 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 wife suffers from a great degree of financial, medical, and psychological hardships. In the I-601 brief and supporting documents, our office included extensive documentation to support her hardship. We argued that if he was removed from the United States, extreme hardship to his wife is clearly foreseeable and evident. His wife has ongoing hardships and she would not be able to take care of her own needs and the bulk of their family chores. Also, it would be extremely difficult for her to get the financial ability in Mexico 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 Mexico, that our client has good employment in the United States, and that his U.S. citizen wife will face extreme financial and emotional difficulties if he cannot come back to the United States.
On April 16, 2014, we filed the I-601 waiver application which included a brief in support and supporting documents that demonstrated hardship to his wife if our client is not able to come back to the United States. However, on August 11, 2014, the USCIS issued a Request for Evidence (RFE) to our client and requested more supplemental documents to demonstrate the hardship that our client’s US citizen wife will face if he is barred to come back to the United States. In response to the RFE, our office prepared a detailed Response to RFE brief along with our client’s affidavit and other documents to show his wife’s hardships. Our office filed the Response to RFE to the USCIS on October 20, 2014.
Eventually, his I-601 waiver was approved on October 25, 2014.