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  • Waiver of inadmissability

    Hello to everybody who reads my story!
    I have petitioned for my husband in 2004 as a spouse of Legal Permanent Resident. Just recently I have become a citizen, and I have submitted all necessary documentation to NVC to upgrade a status on a petition. My husband is barred for 10 years for being illegally in US. He came to US with tourist visa in March 2000, I-94 was extended through March 2001. He has left US in November 2003 "voluntarily". We have married in June 2004 and right after that I have applied for him. Our daughter was born in January 2005 in US (she is a US born child). In January 2006 my husband has made an attempt to enter US through JFK airport but was of course sent back to his country Israel (our daughter was sick at that time and he didn't notify anybody about his plans, his only hope was that his tourist visa in his passport was still eligible and that DHS officer would allow him a temporary "pass"); the papers that he signed and given copies of did not include the summary of exclusions, if to take into the consideration that he was given all the copies of the statement and etc. Now since I have become a US Citizen, it will take certain time to submit case to a consular office. I was advised that we will have to submit forms DS-230 (application for immigrant visa) and I-834 (affidavit of support) to an American consulate in Israel for the decision on immigrant. There are Q's on DS-230 that will definitely light out his illegal presence in US and his attempt to enter US with canceled visa (canceled but not in passport). When we should apply for a waiver - together with an application for a visa, or we should wait until the consul will make a decision of his ineligibility for immigrant visa
    based on a ground of his inadmissibility? And the most important question - what "EXTREME HARDSHIP" can we (me and my daughter) demonstrate to INS?

  • #2
    Hello to everybody who reads my story!
    I have petitioned for my husband in 2004 as a spouse of Legal Permanent Resident. Just recently I have become a citizen, and I have submitted all necessary documentation to NVC to upgrade a status on a petition. My husband is barred for 10 years for being illegally in US. He came to US with tourist visa in March 2000, I-94 was extended through March 2001. He has left US in November 2003 "voluntarily". We have married in June 2004 and right after that I have applied for him. Our daughter was born in January 2005 in US (she is a US born child). In January 2006 my husband has made an attempt to enter US through JFK airport but was of course sent back to his country Israel (our daughter was sick at that time and he didn't notify anybody about his plans, his only hope was that his tourist visa in his passport was still eligible and that DHS officer would allow him a temporary "pass"); the papers that he signed and given copies of did not include the summary of exclusions, if to take into the consideration that he was given all the copies of the statement and etc. Now since I have become a US Citizen, it will take certain time to submit case to a consular office. I was advised that we will have to submit forms DS-230 (application for immigrant visa) and I-834 (affidavit of support) to an American consulate in Israel for the decision on immigrant. There are Q's on DS-230 that will definitely light out his illegal presence in US and his attempt to enter US with canceled visa (canceled but not in passport). When we should apply for a waiver - together with an application for a visa, or we should wait until the consul will make a decision of his ineligibility for immigrant visa
    based on a ground of his inadmissibility? And the most important question - what "EXTREME HARDSHIP" can we (me and my daughter) demonstrate to INS?

    Comment


    • #3
      You should be prepared to submit a complete waiver application at the time of his visa interview. His visa will be denied, have the 601 waiver app completed and ready to give to the officer AT THE INTERVIEW.

      Comment


      • #4
        Also, check out:

        immigrate2us.net

        http://immigrate2us.net/forum/showthread.php?t=59

        Comment


        • #5
          Thank You very much. And what would you think about
          summary of exclusions - is there any possibility that INS has posted 5 years ban for his attempt to get to US?

          Comment


          • #6
            and what about extreme hardship - what can I demonstrate to get this waiver approved and what are the chances????

            Comment


            • #7
              The only way to find out how long he's barred is to read the papers he got. Whether it is 5 or 10 years, he still needs a waiver.

              LauraM, start with reading the extreme harship letters on the link NHF provided.. to get an idea what counts. We don't know your circumstences...

              Comment


              • #8
                Click Here to read entire article: I-601 Waivers And Extreme Hardship: Strategies For Writing A Convincing Narrative For An Application For Waiver Of Grounds Of Inadmissibility by Laurel Scott Esq. and Elizabeth Cannon

                "What are applicable legal arguments for an Application for Waiver of Grounds of Inadmissibility?

                All arguments for Applications for Waivers of Grounds of Inadmissibility are based on the precept that there is a qualifying relative who will suffer "extreme hardship" if the Alien's admission is denied. "Extreme hardship" is very vaguely defined as greater than the normal hardship the qualifying relative can be expected to experience if the Alien is denied admission. It is important to prove both why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the US without the Alien. It is not enough to say that the qualifying relative will miss the Alien's company as this is considered "normal" hardship, not extreme hardship.

                Below are some examples of Extreme Hardship arguments. Here they are separated into levels, with Level 1 being the strongest arguments and Level 4 being the weakest. At some USCIS offices abroad, one Level 3 argument and a few Level 4 arguments may be sufficient. At other USCIS offices, an approval will not be issued unless there is at least one Level 1 argument presented. For most offices, it's best to have at least one Level 2 and a few Level 3 arguments presented in the waiver. You are unlikely to win a waiver case with only Level 4 arguments, though that's not to say its impossible. For the purpose of this memo "Relative", is always the qualifying relative. The list below is by no means exhaustive. It is provided to give the reader an idea of what might be a stronger argument vs what might be considered a weaker argument.

                Level 1 arguments:

                (a) Relative has a MAJOR medical condition (e.g. brain tumor, multiple sclerosis, cerebral palsy) which makes Relative unable to move abroad and for which Relative absolutely needs Alien in the US to help take care of him/her,

                (b) Relative is caring for an elderly, chronically ill, or disabled relative who needs constant care and whose condition is bad enough that Relative either MUST live with the relative or Relative MUST spend at least an hour a day assisting the relative with things like hygiene or physical therapy, and this makes Relative unable to move abroad and makes him/her really need Alien in the US to help him/her care for his/her relative and manage his/her other responsibilities, or

                (c) Alien's country is in a state of active war or major political upheaval.

                Level 2 arguments include:

                (a) Relative is the primary caregiver for his/her child(ren) from a prior relationship and the child(ren)'s other parent will not allow the children to be taken out of the country AND the child(ren) have formed an emotional attachment to Alien

                (b) Relative has a serious medical condition that makes it very difficult for Relative to move abroad and Relative needs Alien to provide help (e.g. Relative needs to have major surgery sometime in the next year, with an expected recovery time of several months),

                (c) Relative is caring for a moderately disabled relative who normally can care for him/herself but occasionally has episodes in which he/she needs a lot of help from Relative and during those times Relative, in turn, needs help from Alien,

                (d) a relative is unusually financially dependent on Relative (e.g. Relative's mother has just gone through a nasty divorce with Relative's father in which she got nothing and because she has never worked, she doesn't qualify for social security, so Relative is supporting her in the entirety for the rest of her life),

                (e) Relative has a child that he/she is about to put through college (note, some offices consider this a stronger argument, some consider it a weaker one), or

                (f) Alien's country is on the verge of major political unrest or negative political change or the country is known for oppression of one sort or another (e.g. Relative is a Christian woman and Alien is from Saudi Arabia), or it is in the infant stages of post-war recovery.

                Level 3 arguments include:

                (a) Relative is the non-custodial parent of a child from a prior relationship and has an actual relationship with that child and the child's other parent will not allow Relative to take the child out of the country but Alien does not have a relationship with the child at this time,

                (b) Relative a significant condition that makes it inconvenient to move out of the country (e.g. severe asthma and Alien spouse lives in Mexico City),

                (c) Relative been diagnosed by a licensed psychologist/psychiatrist with clinical depression due to Alien's immigration problems – note: even thoughts of suicide do not raise this argument to Level 2,

                (d) Relative and Alien have young children together or Relative has full custody of Relative's child and can bring him/her abroad and Alien's home country has bad public health conditions and bad public education,

                (e) Relative's job requires a license in both the US and abroad and it will be very difficult to get licensed abroad (e.g. attorney, medical doctor),

                (f) Relative has job skills that are very specific to the US (e.g. a tax accountant with extensive familiarity with US tax law),

                (g) Alien's country has a very bad economy,

                (h) Relative has a close relative who is partially dependent on Relative financially (e.g. Relative's mom gets social security but needs Relative's extra $500 per month to stay in her present apartment) or physically (e.g. Relative's mother functions well now, but her health has been declining and it is expected she will need more of Relative's help in the near future).

                Level 4 arguments include:

                (a) Relative has debts they wouldn't be able to pay if they moved abroad,

                (b) Alien's country has a high unemployment rate,

                (c) Alien's country has a high crime rate,

                (d) Relative has been despondent due to the situation, but hasn't sought professional help,

                (e) Relative's parents are aging.

                I cannot stress enough that it is insufficient to prove that Relative has elderly or sick relatives. You must show the link between the medical condition and the waiver, i.e. you must prove that the elderly or sick person needs the qualifying Relative to remain in the US and, preferably, that the Alien is also needed in the US.

                Many clients who do their own research are advised by others on the internet to include a psychological self-scoring test, called Holmes-Rahe. In my opinion, this is not worth including. It is also probably not worth including the argument that the couple wants to have children in the future (but are not currently pregnant) and either the wife is getting older or the foreign country has a high infant mortality rate.

                Whenever a waiver claims a relative is dependent on Relative either for direct care or for money, Counsel must explain why no other relative such as one of Relative's siblings can provide the same care or support.

                The reality is adjudicators are currently each creating their own guidelines using only the case law for reference. The problem is that the case law is inconsistent, in my humble opinion. The case law generally says that because each case is unique, the adjudicator has broad discretion to decide what constitutes extreme hardship. Statements along these lines appear in many decisions. The statements effectively discourage USCIS from creating the kind of list I just presented.

                How much supporting documentation is sufficient?

                A waiver packet should include: forms, brief or attorney letter, and supporting documents. In some locations, the only form you need to file is the I-601. Other locations also require a G-325A for the applicant. Still other offices will require all vital records related to the case and police reports translated into English, even when the applicant has not criminal history. Check with the consulate in advance to see what will be required. The brief or attorney letter should be around 10-15 pages and the supporting documents should number 20-50 pages. That being said, there are attorneys that have repeat success with briefs shorter than 5 pages. If it is absolutely necessary to supply more than 50 pages of supporting documents, then do so, but at some point one will experience the law of diminishing returns where there is the risk of annoying the adjudicator with too much to read, thereby outweighing any or all benefits of including a given document. The catch is that the Administrative Appeals Office prefers to see more evidence than any initial CIS adjudicator wants and prefers for all evidence to have been submitted in the initial filing. Keep in mind that the intent is to convince the adjudicator the first time around, so aim to please the adjudicator, not the AAO. A shorter packet can receive approval if there are a few pieces of very good evidence and a very strong argument.

                What constitutes sufficient evidence?

                Any argument presented in the I-601 must be supported with good evidence. There should be non-personal documents, such as country reports, and personal documents such doctors' letters and psychologist letters. For non-personal documents it's best to cite US government sources, as the US government adjudicator will have more trouble dismissing them. Common sources are the Consular Information Sheets, the CIA Factsheets, and the National Institutes of Health medical encyclopedia. Bear in mind that for foreign filings, the OIC is most likely quite familiar with country conditions in the countries over which he/she has jurisdiction and really doesn't need to see a few hundred copies of the same country reports each month. Country reports are much more important for I-601 filings within the US and when filing a case for a national of a country from which the OIC may see fewer waiver applications (see Consulate Shopping below). Use newspaper articles and NGO reports sparingly when information needed cannot be found from a US government source. Certain adjudicators have openly 'dismissed' this attorney's non-US government sources in their denials, even when the reports come from reputable sources such as Amnesty International.

                For personal documents, confirm all letters are signed and dated. They do not need to be notarized unless it is hard to believe that the person signing the letter would make that statement. Attorney-certified photocopies may be sent, but sending the original and keeping the copy is preferable. Doctors' letters should describe the medical condition, the patient's physical limitations (e.g. no driving), the need for assistance, the need for continued medical care, and (if applicable) the physician's personal knowledge of the alien's prior role in providing direct assistance to the patient. Psychologist letters should describe the condition, how the psychologist arrived at that diagnosis, the relationship between the waiver process and the condition, the likely psychological effects of waiver denial, the frequency of the patient's visits, the medications the patient is on (if any), the plan for future treatment. Some attorneys include the doctor's or psychologist's resume. This attorney rarely finds this helpful or necessary. Some lab reports or medical notes may be appropriate depending on the case.

                Cases are proven with the supporting documents, not with the brief. The purpose of a brief is to make sense out of the supporting documents and place the case into legal context. Good supporting documents are paramount to getting approval. Make the legal section short for foreign filings. Most of what the OIC does is adjudicate I-601s. They are familiar with case law. For in-country filings where the adjudicators process the spectrum of applications, a legal section may be more important.

                The qualifying relative's letter is required. This attorney usually includes it as a supporting document. For personal documents in the form of a letter, guide the person in writing the letter, but don't write it for him/her; it needs to be in their own words. Beware of clients pulling letters off of the internet to use as a model for what they need to write. The OICs frequent the internet, too, and they are aware of the content of letters that have been publicly posted. If the OIC suspects the letter was copied off the internet, rather than authored by the person who signed it, the letter will be given less weight and the credibility of the entire packet may be at risk.

                What kind of evidence can I provide to prove rehabilitation for a criminal waiver?

                time since last conviction, generally more serious convictions and/or repeat offenses require more time since last conviction
                statements of the criminal court regarding chances of alien repeating the crime (sometimes the court actually comes out and says the defendant is unlikely to reoffend)
                expungements and pardons (don't get you out of ground of inadmissibility, but they're great proof of rehabilitation, 9 FAM 40.21(b) N4:1-3(b)(4) actually refers to them as "rehabilitative" statutes)
                letter from parole officer, policeman, judge or other law enforcement official stating that from their experience they 'know' when someone is likely to reoffend and this guy won't reoffend
                letter from psychologist stating that crime was result of psychological problem and now the person is better (this is especially useful for history of shoplifting without economic motivation)
                evidence of changed life conditions, e.g. alien committed offenses when he/she was young, foolish, unemployed, childless, and/or single, but now person is older, wiser, married, employed and/or has kids
                letter from clergy stating this person has changed
                evidence that alien is in position of trust with money (if financial crime) or trust with children (if violent or alcohol-related crime) and that the people who placed him in this position of trust KNOW the alien's criminal history
                evidence of successful completion of alcohol or drug treatment program if alcohol or drugs were a factor in the crime (BEWARE OF ADDICTION GROUNDS OF INADMISSIBILITY - ALIEN MUST BE CLEAN AND SOBER FOR THREE YEARS)

                for recent first-and-only offenses of a less serious nature, if the punishment was light, bring that up
                How much should I charge the client for this?

                If you prefer to charge a flat fee as I do, assume that this will take 20-40 attorney hours for most cases and charge accordingly. A well-prepared waiver application is a major undertaking.

                What can be expected from different Offices?

                The greatest factor in predicting whether a given waiver will be approved is where it's filed. This factor is more important than any hardship argument or the ground of inadmissibility. If a client is currently in the US and is trying to decide whether to attempt the I-601 process abroad counsel must consider where the I-601 is being filed in order to properly advise the client. Because the standard at the different offices can change depending on who is currently serving as the OIC, and because the OICs are replaced every few years, I have elected not to give descriptions of the different offices in this memo as the information may be outdated a week after it's posted. Nonetheless, it is very important to contact other attorneys to learn as much about a given office before preparing the waiver or before sending your client out of the country to voluntarily attempt the process. Some current information on the different offices may be found on my website www.visacentral.net."

                Comment


                • #9
                  Thank you, RationalE, for this letter. It is extremely helpful, yet it is extremely disappointing. I was hoping that the fact that our 2,5 years old daughter is being raised without a father is a valuable factor in consideration of a waiver approval. She is very verbal and we have seeked a psychotherapist's help, because we (my daughter and me) have already been through several emotional distresses that happened for the reason that her father is not with her and she wanted him either to go with us to certain errands or to attend classes with her. Isn't it obvious, that the child should have both parents by his side in order to grow physically and emotionally stable, and that the absence of one of the child's parents will have a permanent affect on his future life and relationship with others? Why this factor cannot be considered as the most important one?

                  Comment


                  • #10
                    the most obvious reason is: if we reward any dirtbag illegal by doling out a waiver merely because (a) he or she marries a village idiot and (b) they hammer out a kid or two, all that this does is say..."lie, cheat, steal or scam your way to the US and then marry somebody with an IQ less than 80, make a brat, and voila....you get a green card!!

                    No FN way, Jose.
                    We should eliminate ALL waivers, without exception and end sham marriages and bull$hit waivers for morons that do nothing more than do the horizontal mambo once or twice and produce a child, then ask for a reward....it is time to stop this lunacy...eff every illegal alien...make then go home, and stay home for the maximum penalty time....no exceptions, ever. Otherwise, we will keep reading about a-holes that have, by some miracle, a child with learning disabilities, relatives with medical problems that defy description, etc...(what an amazing coincidence)...so let's just cut off the nonsense by getting rid of ALL loopholes...close them all....of course, this would make immigration attorneys unhappy....which is GREAT NEWS!!

                    Comment


                    • #11
                      <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Thank you, RationalE, for this letter. It is extremely helpful, yet it is extremely disappointing. I was hoping that the fact that our 2,5 years old daughter is being raised without a father is a valuable factor in consideration of a waiver approval. She is very verbal and we have seeked a psychotherapist's help, because we (my daughter and me) have already been through several emotional distresses that happened for the reason that her father is not with her and she wanted him either to go with us to certain errands or to attend classes with her. Isn't it obvious, that the child should have both parents by his side in order to grow physically and emotionally stable, and that the absence of one of the child's parents will have a permanent affect on his future life and relationship with others? Why this factor cannot be considered as the most important one? </div></BLOCKQUOTE>

                      You are welcome, Laura.

                      May be you should contact the attorney who wrote the article (you can follow the link from the post), clarify your questions and have your options evaluated by professional who specialises on I-601 waivers.

                      There is yet another attorney I know of who may be able to assist you, you can visit his website at www.shusterman.com and schedule 'on-the-phone' consultation.

                      I can not comment on the reason why one or another individual circumstance meets or does not meet the standards of "extreme hardship".
                      I would note though that if you read the article carefully, it doesn't say definitely what constitutes or does not constitute an 'extreme hardship' under INA, because there is no universal, strictly worded definition of the same and therefore much depends on individual adjudicators' interpretation of what it is (and location, as written elsewhere).
                      "QUOTE"..the reality is adjudicators are currently each creating their own guidelines using only the case law for reference. The problem is that the case law is inconsistent, in my humble opinion. The case law generally says that because each case is unique, the adjudicator has broad discretion to decide what constitutes extreme hardship. Statements along these lines appear in many decisions. The statements effectively discourage USCIS from creating the kind of list I just presented. "END OF QUOTE"

                      IMHO, Level 1 in above copy-pasted article seems more like meeting the much higher standard of "extremely unusual" or "exceptional" hardship per BIA and Federal Courts' interpretation and you should be fine if meeting less stringent requirements, however you better consult a licensed, practicing attorney who specialises in such cases to minimize the guesswork and errors of judgement.

                      Don't take the above article (which is for general information only) nor my understanding of the case law as a legal advice.
                      I am not an attorney. For legal advice consult one.


                      Regards,

                      RationalE

                      Comment


                      • #12
                        be sure to wave good-bye to $5000 or more when you contact some immigration attorney,...they won't be handling your case out of the goodness of their hearts....they just want the cash.

                        Comment


                        • #13
                          No matter who needs what, this poster needs a competent legal advice and cost of it should be compared to the cost of separation with her husband.

                          Comment


                          • #14
                            Since filing the petition in 2004 I have an attorney that represents this case. But when I have delivered to her the news that I now am an American Citizen, she sounded very, and I repeat, very annoyed and pessimistic, stating that the problems are just about to begin!!!!! and that I should be aware of the fact that the "winning history" in approved cases is less than 30%. It did seem to me that she was either trying to (excuse my words) get rid of me (I mean the case) or at the time of our conversation she was just personally in a "bad mood". Anyways, I've made a decision to seek another legal advise, having a couple of consultations that actually have not brought to the point that "yes, here is the attorney that I can rely on 100%". Business is business, we all know that, but besides the $ sign there should be a will to help and/or to fight. And this is in response to Someone12' statements about sham marriages and "cheating, scamming, lie and etc.." - money is still not everything, there is moral somewhere in this world, and I guess Someone12 never been in this kind of situation, when you put your life on hold (literally) in order to achieve certain goals, in my case is ti have my husband and my baby-girl daughter with us physically, and not on the phone or on the web-cam. Thank you RationalE again, your advises are very helpful, and your support is obvious. Thank you. Also my mind is open to anyone's and any kind of opinion. That is a "freedom of speech"

                            Comment


                            • #15
                              <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Since filing the petition in 2004 I have an attorney that represents this case. But when I have delivered to her the news that I now am an American Citizen, she sounded very, and I repeat, very annoyed and pessimistic, stating that the problems are just about to begin!!!!! and that I should be aware of the fact that the "winning history" in approved cases is less than 30%. It did seem to me that she was either trying to (excuse my words) get rid of me (I mean the case) or at the time of our conversation she was just personally in a "bad mood". Anyways, I've made a decision to seek another legal advise, having a couple of consultations that actually have not brought to the point that "yes, here is the attorney that I can rely on 100%". </div></BLOCKQUOTE>

                              I fail to grasp her logic ("when I have delivered to her the news that I now am an American Citizen, she sounded very, and I repeat, very annoyed and pessimistic, stating that the problems are just about to begin!!!!!"), but leave it to you to reflect on it.

                              As to the rate of I-601 approvals, to my knowledge the highest rate is in Ciudad Juarez, MX (very busy, with 90%-95% of approval rates).
                              And those are not for overstays, but mostly for EWI's.

                              However, as it's noted in the article, each case is unique and there are different approval rates, different interpretations of "extreme hardship" from place to place.


                              Good luck

                              Comment

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