Immigrant Waivers
Presented by
Shelley Hennessee
Law Office of Shelley Hennessee, PLLC, Irving, Texas
Liset Lefebvre
Chavez & Valko, LLP, Baton Rouge, Louisiana
Amber Weeks
Noble & Vrapi, PA, Albuquerque, New Mexico
AILA Spring Conference, Santa Fe, New Mexico
April 23-25, 2015
Overview
• Waiver Availability and Expansion of
Provisional Waiver
• Preparing a Convincing Waiver Packet
• Practice Pointers: Managing Client
Expectations, RFEs and Denials
I.Waiver Availability and
Expansion of
Provisional Waiver
Waiver Basics
• INA § 212(a)(9)(B)(v) waiver for unlawful presence in the
U.S.
• INA § 212(h) waiver for certain crimes
• INA § 212(i) waiver for fraud or misrepresentation
• INA § 212(a)(9)(A)(iii) waiver for prior order of removal
• INA § 212(g) waiver for health-related grounds
Unlawful Presence
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Unlawful presence begins to accrue on April 1, 1997
> 180 days but < 1 year of unlawful presence = 3 year bar
1 year or more of unlawful presence = 10 year bar
Triggered upon departure and subsequent application for
admission to the U.S.
Waiver available if extreme hardship to a qualifying relative is
established.
Qualifying relatives are U.S. citizen and legal permanent
resident spouses and parents
Unlawful Presence
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Careful! Watch out for the INA § 212(a)(9(C)
“permanent bar” and be prepared to address this in the
event of a waiver denial.
• If your client has multiple entries and departures, be sure
to have supporting documentation available to present if
this finding is made in error.
Crimes
• Waiver available for:
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Crimes involving moral turpitude
Single offense of simple possession of marijuana of 30 g or less
Multiple criminal convictions with aggregate sentence to
confinement of 5 years or more
Prostitution and commercialized vice
Serious crimes in which individual asserted immunity
Crimes
• To qualify, applicant must show:
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Activities occurred more than 15 years ago; admission would not
be contrary to the national welfare, safety, or security of the
U.S.; and applicant is rehabilitated; OR
Qualifying relative, i.e., U.S. citizen or legal permanent resident
parent, spouse, or child, will suffer an extreme hardship if waiver
is denied; OR
Applicant is a VAWA self-petitioner. No hardship required.
Crimes
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Careful! Check the petty offense exception, juvenile
offense exception to ensure a 212(h) waiver is necessary.
• Watch out for the aggravated felon bar for LPRs, except
for the 4th, 5th, and 11th Circuits, if LPR adjusted in the U.S.
• No waiver available to LPRs who have not resided in the
U.S. continuously for at least 7 years immediately
preceding initiation of proceedings.
Fraud or
Misrepresentation
• Waiver available if applicant can show U.S. citizen or legal
permanent resident parent or spouse will suffer an
extreme hardship.
• Waiver available to VAWA self-petitioner if he/she can
show extreme hardship to self or U.S. citizen or legal
permanent resident parent or child.
Fraud or
Misrepresentation
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Careful! Verify that the elements of fraud or
misrepresentation have been met before conceding
inadmissibility.
• If a timely retraction of the fraud/misrepresentation is
made, argue that inadmissibility does not apply.
Health-Related
Grounds
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Communicable disease of public health significance may be
waived where the applicant is the spouse, unmarried son or
daughter, or minor unmarried lawfully adopted child who is a
U.S. citizen or LPR; or has a USC/LPR child; or is a VAWA selfpetitioner.
Lack of vaccinations may be waived.
Physical or mental disorder that may pose a threat to the
individual or others.
No waiver available for drug abusers and addicts.
Health-Related
Grounds
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Careful! A DWI could lead to a health-related ground
of inadmissibility.
• A referral to a panel physician will be made for:
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1 alcohol-related conviction within the last 5 years;
2 or more alcohol-related convictions within the last 10 years; or
If there is any other evidence to suggest an alcohol problem.
Prior Proceedings
• Waiver available for prior order of removal.
• No qualifying relative required to seek the waiver.
• Adjudication is based on a weighing of the equities.
Where I-601 is approved, I-212 will also, generally, be
approved.
Burden of Proof
• Prove extreme hardship by a preponderance of the
evidence, i.e., “more likely than not” or “probably true”
Provisional Waiver
• Available since March 4, 2013
• Allows for stateside processing of waiver for unlawful
presence
• Currently available to immediate relatives
• Filed on Form I-601A
Provisional Waiver
• Areas of Concern:
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Denials based on “reason to believe”
Template RFEs and denial letters
Overly narrow interpretation of “extreme hardship”
No appeal or motion to reopen/reconsider
Provisional Waiver
• Secretary Johnson’s November 20, 2014 Memo
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Directs CIS to expand its 2013 provisional waiver regulations to
include all statutorily eligible individuals – spouses and parents
of legal permanent residents and adult children.
Directs CIS to provide guidance that would allow broader use of
the waiver.
Directs CIS to create a presumption of hardship.
Provisional Waiver
• 11/20/2014 memo references the presumption found in
NACARA regulations.
• 8 CFR § 240.64(d) – Hardship shall be presumed to the
applicant, or USC/LPR spouse, parent, or child.
• A presumption of hardship exists in the case of a
widow(er) of a U.S. citizen. AFM § 10.21(c)(5).
Provisional Waiver
• AILA has submitted a letter of recommendation to DHS,
suggesting that USCIS recognize a presumption where:
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QR is USC or LPR spouse and couple has been married 3 years or
has at least 1 USC child; or
Applicant comes from a country with rampant gang activity,
natural disaster, or political upheaval; or
Spouses are of the same sex and the country of relocation does
not permit same sex marriage and is hostile toward LGBT
individuals.
Texas v. United States
• Expansion of the provisional waiver program, additional
guidance to broaden its use, and the creation of a
presumption of hardship are not impacted by Texas v.
United States.
II. Preparing a
Convincing
Waiver Packet
Hypothetical #1
Dana (USC) and Juan Pablo (Mexican citizen) are married and
have one child together. They consult with you regarding filing
an I-601A waiver. Dana is a loan officer who does not have any
medical issues. They do not own any property in the United
States. What do you do?
A. Advise them that their chances of success of a waiver are
low, but you will take the case as long as they acknowledge
that in writing.
B. Refer them to another attorney.
C. Dig deeper.
Additional Facts
Regarding Abuse
• Dana’s father was an alcoholic and would hit her. On one
occasion when he was disciplining her, he hit her on the
side with a wooden board, breaking the board in half. He
would tell her that she would never succeed at anything.
He would lock the door and make her sleep outside if she
ever came home late.
Additional Facts Regarding
Medical Issues
• Dana had gestational diabetes, and their son had to be
delivered early, resulting in his hospitalization. Their son
has been diagnosed with failure to thrive and asthma.
• Dana is at higher risk of suffering from gestational
diabetes again in future pregnancies and would need
frequent prenatal visits in any future pregnancies.
Additional Facts Regarding
Financial Issues
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Dana and Juan Pablo are trying to save money to buy their own home
and expand their family.
Dana experiences extreme anxiety at the prospect of losing Juan
Pablo’s income and having to incur credit card debt since, as a loan
officer, she fears that would damage their credit score to the point
that they would not be able to buy their own home.
Due to the anxiety over the immigration process, Dana has had
difficulty concentrating and her loan closure rate has gone down 15
percent, reducing her income.
Dana speaks only very limited Spanish and would likely have to give
up her career if she had to move to Mexico.
Finding the Story
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Childhood Trauma: Consider the Adverse Childhood Experiences (ACE) Test.
Therapist evaluation and psychological Issues
Medical issues of qualifying relative: Do not forget to ask about pregnancies, childhood
health issues, and undiagnosed health issues
Recovery from addictions
Child custody and childcare issues
Financial Issues: Home equity, business ownership, loss of income, language barriers to
obtaining a job in a foreign country
Disruption of education and career
Community ties and ability to practice religion
Violence, discrimination, economic, and social issues in foreign country
Telling the Story
• Include a Hook (attention grabber)
• Develop a Theme
• A Good Story Includes Villains, Victims, and Heroes
• Pay Careful Attention to the Beginning and the Ending
Mapping Out the
Waiver
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Hook: As a child, Dana’s father beat her to the point of breaking the
board with which he hit her, and she grew up questioning the reason
for living if even her own parents did not love her.
Theme: Juan Pablo was the first person whom Dana was able to talk
to about her abusive father, and Juan Pablo is helping her to recover
from her depression.
Villains: Father, Preeclampsia, Anxiety/Depression, Debt, Son’s
Health Issues
Victims: Dana, Son
Hero: Juan Pablo
Hypothetical #2
Matthew (USC) and Elena (Mexican Citizen) are married,
and Elena has one child from a previous marriage.
Matthew’s father contested paternity and abandoned him.
Matthew was diagnosed with ADHD as a child. Matthew
suffered from drug addiction in the past. Matthew and
Elena do not own any property in the United States.
Matthew is a janitor, and Elena works at Lotaburger.
Mapping Out the
Waiver
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Hook: The first time that Matthew met his father was in a
waiting room for a paternity test when he was 8 years old.
Theme: Elena has provided the one source of stability in
Matthew’s life in helping him to recover from the
abandonment by his father, overcome his substance abuse,
and manage his ADHD.
Villains: Father, ADHD, Substance Abuse
Victim: Matthew
Hero: Elena
III. Practice Pointers:
Managing Client
Expectations,
RFEs and Denials
Practice Pointers: Do’s and Do Not’s
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Discuss processing times with client
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Keep open lines of communication if you notice processing times increase
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CURRENT PROCESSING TIMES:
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I-601A  2.5 to 5 months
I-601  5.5 months
I-212  5 to 7 months
Discuss extreme hardship factors on more than one occasion
• Surprising what clients will share after the first meeting
Request client keeps you informed of any significant or insignificant changes
during preparation of their waiver and/or while waiver is pending
Client Expectations
Discuss the possibility of an RFE
• What should the client be doing while their
waiver is pending?
•Continue gathering evidence
•Keep all appointments with physician,
psychologist and counselor and/or schedule
follow ups
•Communicate any changes/new factors
throughout the process
Client Expectations
Discuss the possibility of I-601 denial
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Lack of Extreme Hardship finding
Abandonment
“Reason to Believe”
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Alien Smuggling,
212(a)(9)(c),
False name/DOB at entry
Discuss the possibility of denial at U.S. Consulate for separate ground
of inadmissibility
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Tattoos
Drug or Alcohol Abuse
Options: Pursue I-601/ AAO Appeal
Client Expectations
Discuss Delays in Adjudication after Waiver Approval
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I-601
 Depending on how long the I-601 was processing, your client may
have to go back to Consulate to take fingerprints, medical, reinterview, or obtain an additional police clearance letter.
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I-601A
 Must file DS-260, I-864, and other supporting documents
 Wait for interview, Biometrics/Medical Exam, IV Appointment
Client Expectations
DO NOT:
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Underestimate the work that goes into gathering documents
and evidence
Compare client A’s waiver to client B’s waiver
Underestimate the processing times
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Equip your client with the USCIS website so they are
involved in the process
Client Expectations
DO NOT
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Take RFE’s lightly
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Template/Blanket RFEs are common
Overlook updating previously submitted evidence
when responding to an RFE
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Updated expense chart
Updated bills
Updated doctor’s letter
Client Expectations
DO NOT
• Compromise with your client re: evidence they want
to provide vs. evidence that is necessary
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Client is busy
Clients are living abroad
• Despair if your I-601A or I-601 is denied for lack of
extreme hardship
RFE Practice Pointers
Responding to an RFE within 30 days
• Review RFE notice carefully
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Schedule a meeting with client to determine if any drastic
changes have occurred since filing the initial waiver
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Provide client fix deadlines to produce additional evidence
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Set critical times to respond
RFE Practice Pointers
Responding to an RFE within 30 days
• Focus on the highlighted sections, but address all others as well
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Legal memorandum should discuss previously submitted
evidence as well
Exhibits: Continue from last submission
• (Example: If you tabbed exhibits A-L, then your RFE should start
with Exhibit M – Z)
Re-evaluate
Extreme Hardship Factors
The Board of Immigration Appeals has listed the following nonexclusive factors deemed relevant in determining if an alien has
established extreme hardship to a qualifying relative:
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Presence of qualifying relatives in this country
The qualifying relative’s family ties outside of the U.S.
The conditions in the country or countries to which the
qualifying relative would relocate and the extent of the QR’s ties
in such countries
The financial impact of departure from this country, and
The significant conditions of health, particularly when tied to an
unavailability of suitable medical care in the country to which the
qualifying relative would relocate
Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999)
Re-evaluate Hardship Factors
Medical/Psychological
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Hospital/ER medical bill/record
New diagnosis
Updated psychologist report
Referrals to specialists
Exam results
Print out of prescriptions filled
Physical therapy visit slips
Physical therapy referrals,
MRIs, etc.
Re-evaluate Hardship Factors
Financial/Employment
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Current Employment
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Promotion/demotion
Increase in pay
Loss of benefits
Loss or Change of Employment
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Different schedule
Lengthier commute
Better or worse quality of life
Business/Career Loss
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Acquisition/expansion
Closing down/selling
Profit v. Loss
Require more personnel
Transfer business/career to other
country
Degree acceptable or requires
additional education or obtaining
a license
Re-evaluate Hardship Factors
Education
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New syllabus
Transcripts
Family & Community Ties
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Letter from
advisor/counselor
Proof of future
potential earnings
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Possible job offers
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Look for positions in
the field in the spouse’s
native country
Proof of Community
involvement
PTA
Religious groups
Country Conditions
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Loss or addition of
new family
Parent-Child Court
Orders
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Geographical
restrictions
Continue to pay
child-support
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Check the most recent
travel warnings
Obtain notarized letters
from people residing in
applicant’s home country,
police reports if they have
been victims of crime,
missing people ads
Reports on minimum
wage, poverty level ,
illiteracy rates, etc.
Wall Street Journal,
Economist,
Worldbank.org, CIA
reports, etc.
Re-evaluate Hardship Factors
Show WHY your client merits a favorable exercise of
discretion
Good Moral Character Evidence:
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Reference/character letters from non-family members
Income tax returns
High school diploma/college classes/ESL certificates
Letters from Teacher explaining he/she is involved in child’s
education
Certificates, awards, and accolades from participation in
community events, school or work
Re-evaluate Hardship Factors
Remind the adjudicator that he/she must “consider the
entire range of factors concerning hardship in their totality
and determine whether the combination of hardships takes
the case beyond those hardships ordinarily associated with
deportation.” Matter of O-J-O, 21 I&N Dec. 381, 383 (BIA
1996) (quoting Matter of Ige, 20 I&N Dec. at 882).
Strategies to Avoid Denials
Remind the adjudicating officer of the legal standard
• The Board in Matter of O-J-O- has made it clear that
"[r]elevant factors, though not extreme in themselves,
must be considered in the aggregate in determining
whether extreme hardship exists." See Matter of O-JO-21 I&N Dec. 381, 383(BIA 1996) (quoting Matter of
Ige, 20 I&N Dec. at 882)(emphasis added).
Strategies to Avoid Denials
• Make sure the supporting evidence is clear and
demonstrates how the standard is met
• Cite AAO case law
• AILA Infonet Doc. No. 14030449 (Posted 3/4/2014)
• Try to meet as many categories as possible (refer to
past evidence submitted)
I-601A Denials
Pursuant to 8 CFR 212.7 (e) , individuals for whom there is a reason to
believe that they may be subject to grounds of inadmissibility other
than unlawful presence at the time of the immigrant visa interview
are ineligible for a provisional unlawful presence waiver.
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On January 24, 2014, USCIS issued field guidance addressing the adjudication of I601A waivers in cases involving applicants with criminal history.
USCIS instructed officers to: Review all evidence in the record, including any evidence
submitted by applicant or the attorney of record. Also, determine if:
- (1) the criminal offense falls within the “petty offense” or “youthful offender”
exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication
or
- (2) is not a CIMT under INA section 212(a)(2)(A)(i)(I) that would render the
applicant inadmissible, then USCIS officers should not find a reason to believe
that the individual may be subject to inadmissibility under INA section
212(a)(2)(A)(i)(I) solely on account of that criminal offense.
Sua Sponte Motion to Reopen:
I-601A
• USCIS announced its intent to voluntarily reopen certain
denied I-601A waivers.
• Effective March 18, 2014, this applies to I-601A waiver
cases that were denied prior to January 24, 2014 and only
to those cases that were denied solely based on the
applicant having a history that included a prior criminal
offense.
“Reason to Believe”
“The essence of the reason to believe standard must be more than
mere conjecture or speculation –there must exist a probability,
supported by evidence, that the alien is not entitled to status.” 9
FAM 42.43 N2.1, Matter of U-H-, 23 I&N Dec. 355,356 (BIA 2002).
• Denials for violation of section 212(a)(9)(c)
• Denials for fraud/misrepresentation
• Denials for alien smugglers
• Denials for “unlawful activity” [212(a)(2)(C)]
Many recently issued denials under “reason to believe” are
lacking specificity therefore, it is important to communicate
with the CIS Ombudsman’s office and/or respond to USCIS
asking them to provide evidence or details to support their
Denial.
I-601A Denials – Contact
CIS Ombudsman's office
Options after receiving a denial
I-601A
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If denial is due to lack of extreme
hardship, REFILE with additional
evidence
If denial is due to a ground of
inadmissibility, you have the
evidence to show otherwise, then
refile with ample evidence and a
brief/legal memorandum
If denial is due to a ground of
inadmissibility you just discovered
(i.e., USCIS did!), then file a
regular I-601 abroad.
I-601
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If denial is due to lack of extreme
hardship, REFILE with additional
evidence.
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Usually better option than
pursuing AAO appeal (2-3 years)
If denial is due to a separate
ground of inadmissibility, then
seek waiver based on that ground
(212h, 212i, etc.)
In Removal Proceedings
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Request administrative closure if your client is in removal proceedings
and is eligible for consular processing with a stateside waiver (I-601A).
Once your case is administratively closed, then you can file the I-601A
with USCIS.
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Joint Motion to Administratively Close Proceedings
Once the waiver is approved, a Motion to Recalendar to terminate
removal proceedings should be filed with the court before your client
departs to attend IV interview.
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Seek agreement from OCC to avoid long delays depending on court ‘s docket
Terminating Prior to Departing
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Take steps immediately to have your client’s removal proceedings
formally terminated or dismissed by EOIR before your client departs
the United States to attend his/her immigrant visa interview.
If your client leaves the United States before his/her removal
proceedings are terminated or dismissed, they will experience delays
in the processing of their immigrant visa or risk becoming ineligible
for an immigrant visa based on another ground of inadmissibility.
Conclusion
QUESTIONS?
QUESTIONS?
QUESTIONS?