Waivers of Inadmissibility
The Honorable Wayne R. Iskra (Arlington, VA)
Mark Shmueli (Takoma Park, MD) – Moderator
Lisa Johnson-Firth (Manassas, VA)
Julia Toro (Washington, DC)
AILA DC Annual Fall Chapter
Waivers of Inadmissibility
Waiver of 3/10 year bar
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INA § 212 (a) (9) (B) (i) (I). 3 year bar: 180
days unlawful presence
INA §212 (a) (B) (i) (II) – 10 year bar: 365
days unlawful presence
INA §212(a)(9)(B) (v)
Standard: Extreme hardship
Qualifying relative: USC or LPR spouse or
parent
AILA DC Annual Fall Chapter
Waivers of Inadmissibility
Fraud Waiver
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INA § 212(a)(6)(C)(i): Any alien who, by fraud or
willfully misrepresenting a material fact, seeks to
procure (or has sought to procure or has procured)
a visa, other documentation, or entry into the
United States or other benefit provided is
inadmissible.
INA § 212 (i)
Extreme Hardship to USC or LPR Spouse or Parent
(children not included)
Does not waive marriage fraud or false claim to USC
AILA DC Annual Fall Chapter
Waivers of Inadmissibility
Crimes INA §212(h)
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Waives: INA §212(h)
CIMT Crimes of Moral Turpitude INA § 212 (a) (2)
(A)(i)(1)Refers to conduct which is inherently base, vile, or
depraved, and contrary to the accepted rules of morality and
the duties owed between persons or to society in general.
The offender’s evil intent or corruption of the mind is
important.
Prostitution
Single offense of Marijuana-less than 30 grams
AILA DC Annual Fall Chapter
Waivers of Inadmissibility
212(h) cont.
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The IJ balances the adverse factors, with the social
and humane considerations - Matter of Mendez, 21 I
& N Dec. 296 (BIA 1996).
If violent or dangerous crimes - must show
extraordinary circumstances 8 CFR §1212.7(d).
Standard: Extreme hardship
Qualifying relatives: Spouse, parent, child
If more than 15 yrs. since activities – only need to
show that admission not contrary to US national
welfare, applicant rehabbed, (except prostitution)
AILA DC Annual Fall Chapter
Waivers of Inadmissibility
Defining Extreme Hardship
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Depends on facts of each case. Matter of
Hwang, 10 I&N Dec 448, 451 (BIA 1964)
Factors include (Matter of CervantesGonzalez, 22 I&N Dec. 560, 565 (BIA 1999):
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LPR or USC ties in and out of US
Country conditions
Financial impact of removal from US
Conditions of health and unavailability of medical
care
AILA DC Annual Fall Chapter
Waivers of Inadmissibility
Key Arguments for Extreme Hardship
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Extreme hardship is from point of view of
qualifying relative in US and abroad
Argue in consideration of the waiver (e.g.,
how waiver would hurt qualifying relative)
Argue totality of circumstances
Argue for mitigating factors – Look to PD
memos in last two years – and against
aggravating factors
AILA DC Annual Fall Chapter
Waivers of Inadmissibility
Documenting Extreme Hardship
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Medical reports, psychological evaluations
Detailed declarations of personal impact
Country condition reports
Letters from employers and tax returns
Expert reports
School records of children
Home budget showing evidence of financial
status
AILA DC Annual Fall Chapter
Waivers of Inadmissibility
Working with Clients on Extreme
Hardship Cases
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Empathize but remain detached
Meet “human needs” – drink/bathroom
Good interpreter
Know client’s country conditions
Prepare to spend time on the application and
have multiple interviews
Explain why you are asking certain questions
Be sensitive to trauma and give breaks
AILA DC Annual Fall Chapter
Waivers of Inadmissibility
WORKING WITH EXPERTS
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When to use one:
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Always in cases requiring waivers
Timing in preparation of case key
How to find one:
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Inquire with colleagues
Check with Universities
Clients are not required to use who you
recommend; they are entitled to use their own
AILA DC Annual Fall Chapter
Waivers of Inadmissibility
WORKING WITH EXPERTS, cont’d.
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How to Liaise with experts:
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Explain the purpose your client needs to meet with them
Let them know that their report will be reviewed by CIS
or EOIR or ICE
Explain the application before immigration and the need
for a waiver and “extreme hardship”
Explain which family members need to meet with them for
their assessment and whose hardship matters
Explain any facts you are aware of that client should reveal
to them, and let them take it from there
Do not tell them what their assessment should contain
AILA DC Annual Fall Chapter
Waivers of Inadmissibility
WORKING WITH EXPERTS, cont’d.
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Privacy and Confidentiality concerns:
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Necessary for expert to maintain confidentiality, and
understand attorney client confidentiality
Testimony for Deportation Proceedings
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No preparation from you should be necessary
Ask expert to review their own assessment
Ask client to contact expert prior to trial to inform them
of any change in their situation or their family; if so, then
necessary for follow-up assessment
AILA DC Annual Fall Chapter
Waivers of Inadmissibility
Stateside Provisional Waiver
Proposed Program
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Who Would Be Eligible?
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Only ground of inadmissibility is unlawful presence
Beneficiary of approved I-130
Hardship to an immediate relative
Not in proceedings or subject to final order
Over age of 17
Physically Present in US at time of filing
Status of Program & Advising Clients
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Proposed rule published and comment period closed
Awaiting publication of final rule – USCIS has said it will be
published by end of calendar year 2012
AILA DC Annual Fall Chapter
Waivers of Inadmissibility
Appealing Denial of a Waiver
Jurisdiction: AAO or BIA
 Submitting a Brief in Support of Appeal
 Ability to Present Additional Evidence?
 Practice Pointer – refiling vs. appealing
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AILA DC Annual Fall Chapter
Waivers of Inadmissibility