Marie
06-28-2007, 06:19 PM
For the sake of the immigration laws, most people here obviously need an I-601, or an I-212 waiver. These waivers are not adjudicated in the same manner. While an I-601 waiver package could consist of a 212(h), 212(i) or a 212(a)(9)(B)(v) waiver in these subsections of the INA under the ACT 212, The I-212 waiver relates only to deportations and specifically section 212(a)(9)(A)(iii).
While An I-601 waiver is granted based on the showing of extreme hardship to a USC, there is confusion/misunderstanding surrounding the proof of hardships being reviewed on this site. Hence the Inconsistencies in approvals. Please note that for:
UNDER I-601
A waiver under 212(i) of the INA would cover fraud/misrepresentation but not a false claim of citizenship which has no waiver.
Extreme Hardship is taken into consideration for USC or LPR Spouse or Parent and Children
A waiver under 212(h) of the INA would cover CIMT or drugs but not trafficking drugs
Extreme Hardship is taken into consideration (Sometimes Actual great/Prospective Injury), for USC or LPR Spouse or Parent and Children. OR automatically approved after 15 years since incident.(h)(1)(A)(i). And/or Contests of Proof of Rehabilitation required.
A waiver under 212(a)(9)(B)(v) would cover unlawful presence/Overstay
Extreme Hardship is taken into consideration for USC or LPR Spouse or Parent, But NO Children – Useless to even mention for waivers for ONLY Overstay!!!. In all circumstances proof of extreme hardship must be demonstrated to be approved, especially to prove that USC depends on Alien in the U.S. other wise if relocation as well. But, Emotional, regular stress, and family separation, financial detriment by themselves do not count and you will be denied. Please note who the hardship is to above in each case.
There are several other ways to demonstrate Extreme Hardship. If you don’t have any life threatening diseases etc. The BIA held in Matter of Cervantes-Gonzales that extreme hardship mush be to a qualifying relative LPR/USC and determined five factors to which extreme hardship would exist. You must show at least all these five and document them distinctively in your hardship letter. Remember they must interact with each other...
Pursuant to Matter of Cervantes-Gonzales, therefore, the factors deemed relevant in determining extreme hardship to a qualifying relative include, but are not limited to, the following:
(1) the presence of lawful permanent resident or USC family ties in the U.S.;
(2) the qualifying relative’s family ties outside the U.S.;
(3) the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries;
(4) the financial impact of departure from this country; and
(5) significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.
In addition, if there was CIMT even if dropped, the intent was there in the first place. You would have to show some rehab - try to get people/church/business to write letters contesting your good moral character and submit these as well. Giving something back to the community is a favorable factor.
Finally you can claim extreme emotional distress beyond the normal separation, but is has to be ongoing with lots of documentation and prescriptions etc.
Adjudicators will dissect every little claim you make and use it against you. So you must provide proof even if you can site it. Don't give them a reason to. Now you can see why an Overstay could be denied if HARDSHIP is to the incorrect USC/LPR subject.
UNDER I-212
A waiver under 212(a)(9)(A)(iii) of the INA would cover Deportation. Extreme Hardship is not taken into consideration. Rather, the Balancing of Favorable vs. Unfavorable equities involving:
Unfavorable Factors
- Fraud/Misrepresentation
- Entry without Inspection
- Crime Involving Moral Turpitude
- Employment without Authorization
- Unlawful Presence
- What ever else you did wrong
Favorable Factors
- Considerable Family Ties in the United States
- U.S. Spouse and Children
- Approved I-130 Petition for Alien Relative
- Prospects of General Hardship to Family - does not have to be extreme
- Letters Attesting Good Moral Character have letter attesting, Never did drugs or aggrav felony
- Rehabilitated No more crimes since last conviction
- Responsible Parenthood
- Paid Taxes Althouh Employment without Authorization
- Fullfilled my sentencing and Bonds Sanctions, \r\n- Existence of Property and Business Ties
- Evidence of Value and service to the community
Please document this in hardship letters!!!
see this adjudication involving I-212 waiver: http://uscis.gov/graphics/lawsregs/admindec3/h4/2005/apr2705_05h4212.pdf
Note: Most cases that require an I-212 also need an I-601. So the adjudication of the I-601 takes place, then If approved, the I-212 will most likely be approved and you'll never see it in the BIA Decisions since the conditions of excludability are first removed by the approval of the I-601 and only deportation/I-212 is left to adjudicate - It will get approved since the bar is already removed. If the I-601 is denied, in some cases and especially in an Appeals case, they still try to adjudicate the I-212 using balancing of favorable vs. unfavorable equities.
One could be denied under the old laws section 241(a)(5) for having two deportations or 212(a)(9)(C) under the new law.
Examples of BIA Decisions 2005
Look for similar cases like yours to see why they were denied - Look at first page under APPLICATION for the statute. I will say that some of these decisions are going to make you really sick like it did me, but use this to your benefit:
Take the time to read all H2 Cases/Denials general class 212(i), 212(h)
http://uscis.gov/graphics/lawsregs/admindec3/h2/2005/
Take the time to read all H3 Cases/Denials Involving foreign Residence Requirement
http://uscis.gov/graphics/lawsregs/admindec3/h3/2005/
Take the time to read all H4 Cases/Denials mainly involving I-212 waiver combinations
http://uscis.gov/graphics/lawsregs/admindec3/h4/2005/
I have read almost all the decisions and it is clear that denials are for two main reasons: 1) The ineligibility for the waiver in the first place. This is more prominent among waivers filed in the U.S. since the applicant was unaware of the fact that he/she did not qualify for one. An embassy would normally prove if you require one or not. 2) Failure to show proof of EXTREME Hardship section 291 INA - The Burden of Proof remains entirely on the applicant.
I certainly hope this clarifies yours I-601/I-212 situation a bit better.
Regards,
Knight
While An I-601 waiver is granted based on the showing of extreme hardship to a USC, there is confusion/misunderstanding surrounding the proof of hardships being reviewed on this site. Hence the Inconsistencies in approvals. Please note that for:
UNDER I-601
A waiver under 212(i) of the INA would cover fraud/misrepresentation but not a false claim of citizenship which has no waiver.
Extreme Hardship is taken into consideration for USC or LPR Spouse or Parent and Children
A waiver under 212(h) of the INA would cover CIMT or drugs but not trafficking drugs
Extreme Hardship is taken into consideration (Sometimes Actual great/Prospective Injury), for USC or LPR Spouse or Parent and Children. OR automatically approved after 15 years since incident.(h)(1)(A)(i). And/or Contests of Proof of Rehabilitation required.
A waiver under 212(a)(9)(B)(v) would cover unlawful presence/Overstay
Extreme Hardship is taken into consideration for USC or LPR Spouse or Parent, But NO Children – Useless to even mention for waivers for ONLY Overstay!!!. In all circumstances proof of extreme hardship must be demonstrated to be approved, especially to prove that USC depends on Alien in the U.S. other wise if relocation as well. But, Emotional, regular stress, and family separation, financial detriment by themselves do not count and you will be denied. Please note who the hardship is to above in each case.
There are several other ways to demonstrate Extreme Hardship. If you don’t have any life threatening diseases etc. The BIA held in Matter of Cervantes-Gonzales that extreme hardship mush be to a qualifying relative LPR/USC and determined five factors to which extreme hardship would exist. You must show at least all these five and document them distinctively in your hardship letter. Remember they must interact with each other...
Pursuant to Matter of Cervantes-Gonzales, therefore, the factors deemed relevant in determining extreme hardship to a qualifying relative include, but are not limited to, the following:
(1) the presence of lawful permanent resident or USC family ties in the U.S.;
(2) the qualifying relative’s family ties outside the U.S.;
(3) the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries;
(4) the financial impact of departure from this country; and
(5) significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.
In addition, if there was CIMT even if dropped, the intent was there in the first place. You would have to show some rehab - try to get people/church/business to write letters contesting your good moral character and submit these as well. Giving something back to the community is a favorable factor.
Finally you can claim extreme emotional distress beyond the normal separation, but is has to be ongoing with lots of documentation and prescriptions etc.
Adjudicators will dissect every little claim you make and use it against you. So you must provide proof even if you can site it. Don't give them a reason to. Now you can see why an Overstay could be denied if HARDSHIP is to the incorrect USC/LPR subject.
UNDER I-212
A waiver under 212(a)(9)(A)(iii) of the INA would cover Deportation. Extreme Hardship is not taken into consideration. Rather, the Balancing of Favorable vs. Unfavorable equities involving:
Unfavorable Factors
- Fraud/Misrepresentation
- Entry without Inspection
- Crime Involving Moral Turpitude
- Employment without Authorization
- Unlawful Presence
- What ever else you did wrong
Favorable Factors
- Considerable Family Ties in the United States
- U.S. Spouse and Children
- Approved I-130 Petition for Alien Relative
- Prospects of General Hardship to Family - does not have to be extreme
- Letters Attesting Good Moral Character have letter attesting, Never did drugs or aggrav felony
- Rehabilitated No more crimes since last conviction
- Responsible Parenthood
- Paid Taxes Althouh Employment without Authorization
- Fullfilled my sentencing and Bonds Sanctions, \r\n- Existence of Property and Business Ties
- Evidence of Value and service to the community
Please document this in hardship letters!!!
see this adjudication involving I-212 waiver: http://uscis.gov/graphics/lawsregs/admindec3/h4/2005/apr2705_05h4212.pdf
Note: Most cases that require an I-212 also need an I-601. So the adjudication of the I-601 takes place, then If approved, the I-212 will most likely be approved and you'll never see it in the BIA Decisions since the conditions of excludability are first removed by the approval of the I-601 and only deportation/I-212 is left to adjudicate - It will get approved since the bar is already removed. If the I-601 is denied, in some cases and especially in an Appeals case, they still try to adjudicate the I-212 using balancing of favorable vs. unfavorable equities.
One could be denied under the old laws section 241(a)(5) for having two deportations or 212(a)(9)(C) under the new law.
Examples of BIA Decisions 2005
Look for similar cases like yours to see why they were denied - Look at first page under APPLICATION for the statute. I will say that some of these decisions are going to make you really sick like it did me, but use this to your benefit:
Take the time to read all H2 Cases/Denials general class 212(i), 212(h)
http://uscis.gov/graphics/lawsregs/admindec3/h2/2005/
Take the time to read all H3 Cases/Denials Involving foreign Residence Requirement
http://uscis.gov/graphics/lawsregs/admindec3/h3/2005/
Take the time to read all H4 Cases/Denials mainly involving I-212 waiver combinations
http://uscis.gov/graphics/lawsregs/admindec3/h4/2005/
I have read almost all the decisions and it is clear that denials are for two main reasons: 1) The ineligibility for the waiver in the first place. This is more prominent among waivers filed in the U.S. since the applicant was unaware of the fact that he/she did not qualify for one. An embassy would normally prove if you require one or not. 2) Failure to show proof of EXTREME Hardship section 291 INA - The Burden of Proof remains entirely on the applicant.
I certainly hope this clarifies yours I-601/I-212 situation a bit better.
Regards,
Knight