FAMILY IMMIGRATION LAW

Transcription

1 Thursday, March 2, 2017 ICLE: State Bar Series FAMILY IMMIGRATION LAW 6 CLE Hours 1 Professionalism Hour 3 Trial Practice Hours Co-Sponsored By: Immigration Law Section Institute of Continuing Legal Education

2 Copyright 2017 by the Institute of Continuing Legal Education. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE. The Institute of Continuing Legal Education s publications are intended to provide current and accurate information on designated subject matter. They are offered as an aid to practicing attorneys to help them maintain professional competence with the understanding that the publisher is not rendering legal, accounting, or other professional advice. Attorneys should not rely solely on ICLE publications. Attorneys should research original and current sources of authority and take any other measures that are necessary and appropriate to ensure that they are in compliance with the pertinent rules of professional conduct for their jurisdiction. ICLE gratefully acknowledges the efforts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily reflect the opinions of the Institute of Continuing Legal Education, its officers, or employees. The faculty is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. This publication was created to serve the continuing legal education needs of practicing attorneys. ICLE does not encourage non-attorneys to use or purchase this publication in lieu of hiring a competent attorney or other professional. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. Although the publisher and faculty have made every effort to ensure that the information in this book was correct at press time, the publisher and faculty do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause. The Institute of Continuing Legal Education (ICLE) is the not-for-profit educational service of the State Bar of Georgia and is a consortium of the Bar and the Law Schools of the Universities of Georgia, Emory, Mercer, Georgia State, and John Marshall. It is fully self-supporting and receives all of its income from tuition charges and sale of publications. ICLE exists solely to serve the educational needs of practicing lawyers with any surplus revenues being devoted entirely to the improvement of CLE products and services. Printed By: Publication No

3 FOREWORD iii The Institute is especially grateful to our outstanding Seminar Chairperson(s) for providing the necessary leadership, organization, and supervision that has brought this program into a reality. Indeed a debt of gratitude is particularly due our articulate and knowledgeable faculty, without whose untiring dedication and efforts this seminar would not have been possible. Their names are listed on the brochure for this program and their contributions to the success of this seminar are immeasurable. I would be remiss if I did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us hope your attendance will be most beneficial as well as enjoyable. Your comments and suggestions are always welcome. March, 2017 Tangela S. King Interim Director, ICLE

4

5 TABLE OF CONTENTS v Foreword... iii PAGE CHAPTER Family Based Petitions F. Rocky Rawcliffe Family Based Relief from Removal Kristin Gledhill Williams and Grace Kennedy Introduction to Common Waivers with United States Citizenship and Immigration Services and the United States Consulate Zainab A. Alwan and Sarah W. H. Owings Professionalism in Family Immigration Law Nisha K. Karnani Appendix: Georgia Mandatory CLE Fact Sheet... 1 Postface... 2

6 vi TABLE OF CONTENTS Materials Were Not Submitted for the Following Presentations at the Time of Printing/Duplication: ISSUES IN FAMILY LAW IMMIGRATION CASES WITH A FOCUS ON MARRIAGE BASED PETITIONS, STEP-CHILDREN, AND ADOPTED CHILDREN Carol D. Williams, Carol Williams Law Group, Atlanta Erin Elliott, Elliott Immigration Law, LLC, Altanta COMMON ISSUES THAT TRIGGER DENIALS, INITIATION OF DEPORTATION PROCEEDINGS AND INADMISSIBILITY PROBLEMS WITH USCIS Zaira Solano, Solano Firm, LLC, Decatur FUNDAMENTALS OF NATURALIZATIONS Tracie Klinke, Klinke Immigration, LLC, Marietta

7 FAMILY IMMIGRATION LAW Family Based Petitions F. Rocky Rawcliffe Rojas & Rawcliffe Immigration, LLC Atlanta, Georgia

8

9 Chapter 1 1 of 6 FAMILY BASED PETITIONS Presented by: Rocky Rawcliffe Rojas and Rawcliffe Immigration, LLC PETITIONERS AND BENEFICIARIES Petitioners are the individuals filing the petition on behalf of their alien relative. Petitioners are either U.S. Citizens (USC) or Lawful Permanent Residents (LPR). Beneficiaries are the individuals being petitioned by their relative. Beneficiaries are classified as an Immediate Relative (IR) or as a Preference Category (PC)relative. Derivative Beneficiaries are the unmarried children under the age of 18 of a principal beneficiary of a preference category petition only. No derivatives on an immediate relative petition.

10 Chapter 1 2 of 6 BENEFICIARY CLASSIFICATIONS Immediate Relatives are beneficiaries for whom there is a visa immediately available upon approval of the petition. This means that these beneficiaries may immediately begin the process of applying for permanent residence. Preference Category beneficiaries are those for whom a visa is not immediately available upon approval and must wait for the approved petition to become current. The wait is determined by the specific preference category and country of origin. Each month the Department of State releases the Visa Bulletin which shows where the priority date is for each category. VISA BULLETIN

11 Chapter 1 3 of 6 I M A US CITIZEN. CAN I PETITION FOR My spouse Yes (Immediate Relative) My unmarried child under 21 y/o Yes (Immediate Relative) My parent (if I am over 21 y/o) Yes (Immediate Relative) My son or daughter Yes (Preference Category) My sibling (if I am over 21 y/o) Yes (Preference Category) I M A LAWFUL PERMANENT RESIDENT. CAN I PETITION FOR MY My spouse Yes (Preference Category) My unmarried child under 21 y/o Yes (Preference Category) Unmarried son or daughter over 21 y/o Yes (Preference Category) PRACTICE TIP Be very careful in advising clients about how a marriage will affect their status as a beneficiary. If a son or daughter marries they fall out of the petition which could have disastrous consequences for families.

12 Chapter 1 4 of 6 KNOW THE DEFINITIONS Child an individual can be classified as a child multiple ways: 1. biological in wedlock; 2. stepchild (provided the step relationship created prior to the child s 18 th birthday); 3. adoption while under the age of 16, or adopted under the age of 18 with a sibling under the age of 16; 4. out of wedlock (for fathers) if acknowledged, legitimated, and there exists a caring parent / child relationship) Son / Daughter over 21 years of age KNOW THE DEFINITIONS Parent a parent can be genetic, legal, adoptive, or step relative (provided child under 18 when relationship created); Marriage can be civil, registered, or common law (where applicable), and MUST BE A GOOD FAITH RELATIONSHIP; PRACTICE TIP If you even suspect a relationship is in bad faith, tell the potential client what you think. If the couple can t overcome your doubts then do yourself a favor and refer them elsewhere. People still get away with marriage fraud, but despite what people think it s tougher to do than you think.

13 Chapter 1 5 of 6 NOTABLE EXCEPTIONS Self Petitioner in certain instances an individual can self petition if they fall into a certain category (widow / widower, battered spouse of USC or LPR, special immigrant juveniles); Fiancées and their derivatives can only be petitioned for by a USC. Whether or not this is a route that will benefit the intending immigrant is a case specific factual determination. KNOW THE FORMS All forms can be found and downloaded for free from the USCIS website at uscis.gov; Form I-130 for all immediate relative and preference category petitions; Form I-129F for all fiancé petitions; Form I-360 for all self petitions; PRACTICE TIP know your forms cold. People can read and fill out forms just as well as you can. Aside from determining eligibility, the value you add is in being able to do it faster and not having to read the 20 pages of instructions for each form to know what the particular form requires.

14 Chapter 1 6 of 6 Don t do it; Don t assist in it; MARRIAGE FRAUD PRACTICE TIPS This business revolves around your reputation. Don t give in to the short term gain (people are willing to pay for your help in committing marriage fraud) because it is not worth it in the long run; Just because a couple doesn t have much documentary evidence of their relationship does not mean the relationship is in bad faith; Just because a couple has overwhelming documentation does not mean the relationship is in good faith; Don t be afraid to address this issue with a potential Client it will be beneficial to you both in the long run; If your client is caught they are done. It is virtually impossible to recover from a fraud finding; (there is a difference between a marriage fraud finding and a denial based on insufficient evidence of the bona fides of the marriage) If you are caught knowingly assisting you are done. You will be fined heavily and might be heading to prison; NEVER WORTH IT NO MATTER THE CIRCUMSTANCE CONTACT INFORMATION If you don t know something or are unsure call somebody before you give out advice. It may not seem like you re dealing with someone s life but that s exactly what you re dealing with. rrawcliffe@rojasandrawcliffe.com Telephone (678)

15 FAMILY IMMIGRATION LAW Family Based Relief from Removal Kristin Gledhill Williams The Gledhill Law Firm, LLC Chamblee, Georgia Grace Kennedy The Kennedy Immigration Firm, LLC Atlanta, Georgia

16 FAMILY BASED RELIEF FROM REMOVAL By Kristin Gledhill Williams, Esq. And Grace Kennedy, Esq. January 14, 2016

17 Chapter 2 i TABLE OF CONTENTS i. Introduction..1 ii. Lay of the land....1 iii. Family based forms of relief.. 3 Naturalization....3 Adjustment of status.4 Consular processing and I601A waivers....5 Cancellation of removal.6 VAWA self petitions/ VAWA cancellation of removal 7 Family based criminal waivers 8 Alternative Relief forms: admin closures, DACA, U visas, PD requests...9 iv. Conclusion.10

18

19 Chapter 2 1 of 11 i. Introduction This brief will cover many of the family based forms of relief from removal proceedings. We will cover the most common forms of family based relief in detail, while still touching on some lesser known waivers. We will also provide practice pointers that may assist new practitioners who are appearing in court for the first time. During the CLE, we will practice the ideas we have learned with hypotheticals. ii. Lay of the land Before we touch on relief from removal, it is important for you to have a general idea of what removal proceedings are and how to know if your client is in removal proceedings. Generally speaking, removal proceedings are an administrative process by which the U.S. government (represented by Department of Homeland Security attorneys) removes or deports an individual from the country. You will know that a client is facing removal proceedings when he or she has been served with a document called a Notice To Appear, or NTA. During removal proceedings, your client will have an opportunity to defend against his or her removal. In Immigration Court these defenses are commonly called relief from removal. There are many different forms of relief but again, the focus of this paper is on the family-based forms. 1. Stages of Removal Proceedings Removal proceedings are divided into two types of hearings, the first level being Master Calendar Hearings and the second level being Individual Hearings. A Master Calendar is much like an arraignment in criminal court where the client will be expected to plead to the charges contained in the NTA, and to state what forms of

20 Chapter 2 2 of 11 relief from removal they are seeking. The case is then set for an Individual Hearing, which is the trial stage of the proceedings. The client will be expected to argue the forms of relief at the Individual Hearing through testimony, witnesses, and evidence. 2. Key Players In court, you will see that your opposing counsel is the DHS attorney who represents the interests of the United States government. The whole proceeding is presided over by an Immigration Judge. You will usually also see a clerk seated next to the judge and a court interpreter. 3. Lingo As with any specialized area of law, immigration lawyers and judges have come up with their own lingo. It is important to familiarize yourself with common acronyms and vocabulary before you go to court so that you will understand what is being said. Here are some common terms you should know: IJ= Immigration Judge DHS= Department of Homeland Security ICE= Immigration and Customs Enforcement USCIS= United States Citizenship and Immigration Services Respondent= your client (the defendant) NTA= notice to appear INA= Immigration and Nationality Act BIA= Board of Immigration Appeals AOS= adjustment of status

21 Chapter 2 3 of 11 CIMT= crime involving moral turpitude CSPA= child status protection act USC= United States citizen LPR= lawful permanent resident iii. Family based forms of relief Now that you know your client is facing removal proceedings, you can begin to examine the case for potential forms of relief. As the name suggests, all family based forms of relief have one thing in common- a legal family member that forms the basis for the relief. Generally, the legal family member can be a spouse, parent, or child who is either a USC or an LPR. For the purposes of this paper, these are the relatives that we will focus on. On to the forms of relief! 1. Naturalization Always check the regulations to see if your client has any claims to US citizenship. This may sound obvious, but the naturalization laws are tricky and have changed extensively over the years. Both authors of this paper have seen cases where claims to citizenship were missed both by the attorneys involved and the courts. So, if your client has one or two USC parents, you should review the regulations to see if any apply to your client. Kurzban s has excellent reference charts for naturalization and citizenship in its appendices.

22 Chapter 2 4 of Adjustment of Status (AOS) AOS is the process by which a person obtains lawful permanent residence, or their green card. Your client must have a legal family member who is able, or has already, filed an I-130 petition for them. In this category, USC brothers and sisters can also count, in addition to spouses, parents, and children over the age of 21. Although, not all clients will qualify for their AOS paperwork to be filed in the US. Some clients are only eligible for consular processing, which means they will have to leave the country and get their green cards from a US embassy abroad. We will cover consular processing presently, but for now let s look more closely at AOS cases. The first example of AOS that we will cover is the overstay exception under INA 245(a). Hypothetical #1 Jorge is a native and citizen of Guatemala. He entered the United States in 1999 using a tourist visa. He was supposed to leave 6 months later but decided to stay. He is now married to a United States citizen, named Katherine. They have three children together- Rebecca, Jessica and Nathalie, ages 1, 4 and 6. His 4 year old suffers from cerebral palsy. On his way to church, Jorge was arrested for driving without a license in Gwinnett County. He is now in removal proceedings.

23 Chapter 2 5 of 11 The second example of AOS that we will cover is protection under INA 245(i) Hypothetical #2 ****Practice Pointer: If your client appears to be eligible for AOS, you should contact the DHS attorney and see if they will agree to a joint motion to terminate or dismiss the proceedings. This means that the removal proceedings would be closed, and the case would be sent back to USCIS for adjudication of the AOS application. 3. Consular Processing and I-601A waivers As mentioned above, not everyone qualifies to AOS inside the United States. Some must attend an interview at the US embassy abroad in order to get their green cards. Many of these consular processing cases will also require a waiver of unlawful presence, called the I-601 waiver, in order to be approved. We will focus on the I-601A waiver, which is a variation of the I-601 waiver. The I-601A waiver provisions have been expanded to include spouses and children of both US Citizens and LPRs. The I-601A waiver can be filed inside the United States, and the undocumented client can also remain in the United States while the waiver is being adjudicated. This is an improvement over the old I-601 waiver process which had to be filed at the US embassy abroad and which

24 Chapter 2 6 of 11 resulted in long separation periods. Once the I-601A waiver is approved, the client would then proceed to the US embassy abroad to receive their green card. Hypothetical #3 Jorge is a native and citizen of Guatemala. He entered the United States in 1999 illegally. He is now married to an LPR, named Cristina. Cristina filed an I-130 for Jorge that was approved in The priority date is now current. They have three children together- Rebecca, Jessica and Nathalie, ages 1, 4 and 6. His 4 year old suffers from cerebral palsy. On his way to church, Jorge was arrested for driving without a license in Gwinnett County. He is now in removal proceedings. ****Practice Pointer: Even though the client in this example is not eligible for AOS, you should still contact the DHS attorney to see if they will agree to a joint motion to administratively close the proceedings to allow your client to file an I-601A waiver. 4. Cancellation of removal A. EOIR 42B Cancellation of removal for non LPRs Use hypothetical #3 again. Jorge may also be eligible for non LPR cancellation of removal on Form EOIR 42B. The elements that the client must prove to the IJ at the Individual Hearing are as follows: (1) have a qualifying relative; (2) have not been convicted of an aggravated felony or CIMT; (3) have ten years of physical presence before the filing of the NTA; (4) be of good moral character and; (5) demonstrate exceptional and extremely unusual hardship to the qualifying relative.

25 Chapter 2 7 of 11 B. EOIR 42A Cancellation of removal for LPRs The elements that the client must prove to the IJ at the Individual Hearing are as follows: (1) have been an LPR for at least the last 5 years; (2) have not been convicted of an aggravated felony or certain other crimes; (3) have 7 years of physical presence after a lawful admission; (4) be of good moral character and; (5) not have been granted cancellation or certain other waivers before. 5. VAWA self-petitions/ VAWA cancellation of removal VAWA stands for the Violence Against Women Act, and applies to undocumented clients who have suffered substantial abuse or cruelty at the hands of a USC or LPR spouse or parent. These clients are afforded many special protections under the regulations such as exceptions to time limits on certain motions, fee waivers, unlawful presence waivers, and waivers of certain criminal convictions. Basically, there are two forms of VAWA relief available: 1) self-petitions and AOS on Form I-360, which can be filed concurrently, and 2) VAWA cancellation of removal from the IJ. Hypothetical #4

26 Chapter 2 8 of 11 ****Practice Pointer: If your client appears to be eligible for VAWA or U visa relief, you should contact the DHS attorney and see if they will agree to a joint motion to terminate or remand the proceedings. In the alternative, the DHS attorney may agree to a joint motion to administratively close. Most of the time, the DHS attorney will want to see an approved I-918 or I-360 before they will agree to this. 6. Family based criminal waivers INA Section 212 contains various waivers for criminal convictions that are based on a qualifying family relationship. For example, section 212(h) waivers can waive multiple criminal convictions, some marijuana convictions, CIMTs, among others. Most waivers under this section require a showing of extreme hardship to a qualifying relative. Another example is section 212(i) which can waive fraud or material misrepresentation if extreme hardship can be shown to a qualifying relative. The general rule on waivers is that they are stackable, although exceptions apply. In other words, you may be able to file two or more waivers at the same time for your client. Hypothetical #5 Hiba is a native and citizen of Iraq. She entered the United States as a lawful permanent resident in She got her green by marriage to a US citizen that she divorced immediately after she entered the United States. In 1994, she was convicted of a drug offence and three counts of forgery. She left the United States to attend a conference in Panama last year. When she reentered the United States she was questioned about her convictions and

27 Chapter 2 9 of 11 was placed in removal proceedings. She went to the first master calendar hearing on her own and the Immigration Judge told her that she has a terrible case and should prepare herself to return to Iraq. Hiba tells you that luckily, she met a man named Yasser at a party last weekend who seems great and he is willing to marry her. Yasser is a naturalized US citizen. She wants you to represent her at her next master calendar hearing. 7. Alternative Relief: DACA approvals, prosecutorial discretion Unfortunately, our alternative forms of relief and days of getting cases closed under prosecutorial discretion are slipping away from us. Under executive order by the President issued on January 25, 2017, deportation and removal priorities have now been greatly expanded to include almost all removable immigrants including, but not limited to, the following: have been convicted of any criminal offense; have been charged with any criminal offense, where such charge has not been resolved; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; have abused any program related to receipt of public benefits; are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or in the judgment of an immigration officer, otherwise pose a risk to public safety or national security." It is yet to be seen how this order will be applied in practice. At present, we await more firm directives from DHS. However, it appears that requests for prosecutorial discretion will be granted less frequently in light of the new priorities, if at all. It also appears that a great many

28 Chapter 2 10 of 11 undocumented clients will now be considered priorities for deportation, and this makes it even more important to formulate a solid game plan in removal proceedings. A quick word on DACA, which appears to still be in play at least for the time being. As a reminder, DACA is an Obama- era initiative which protected certain immigrants who were brought to the United States as children from deportation. This temporary shielding is granted in two year increments and comes with the benefit of a work authorization card. If your client appears to be eligible under the DACA program, you can move the Court to administratively close the proceedings. iv. Conclusion As you can see, there are many potential forms of relief from removal once you discover that your client has family ties to the United States. If you are not sure if your client qualifies, be sure to consult a knowledgeable colleague or other resource so as not to miss these important forms of relief. ****Additional Hypotheticals Jorge is a native and citizen of Guatemala. He entered the United States in 1999 illegally. On December 1, 2000, his LPR father filed an I-130 for him which was later approved. However, his priority date will not be current for another 5 years. He is now married to a United States citizen, named Katherine. They have three children together- Rebecca, Jessica and Nathalie, ages 1, 4 and 6. His 4 year old suffers from cerebral palsy. On his way to church, Jorge was arrested for driving without a license in Gwinnett County. He is now in removal proceedings.

29 Chapter 2 11 of 11 Maria is a native and citizen of Mexico. She entered the United States without inspection in She has a criminal record. She was arrested for simple battery in 2005, a DUI from 2007, a shoplifting from 2009 and fraud from She is legally married to a United States citizen but does not live with her husband because he is a violent alcoholic. Maria tells you that she is currently pregnant. Fred is the father of the baby. He s a US citizen and has served in the army in both Iraq and Afghanistan. They would like to get married. Maria tells you that she also has a 16 year old daughter named Jessica. Jessica is also present in the United States without documentation. Jessica was beaten up last year in a bar fight and has applied for U visa status. Even though Maria lives in Atlanta, she was apprehended by CBP in southern Texas last year. Maria doesn t seem to remember much about the circumstances of the apprehension. She has been scheduled to appear in immigration court next week for a master calendar hearing.

30

31 FAMILY IMMIGRATION LAW Introduction to Common Waivers with United States Citizenship and Immigration Services and the United States Consulate Zainab A. Alwan Georgia Asylum and Immigration Network Atlanta, Georgia Sarah W. H. Owings Antonini & Cohen Immigration Law Group Atlanta, Georgia

32

33 Chapter 3 1 of 24 INTRODUCTION TO COMMON WAIVERS WITH UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES AND THE UNITED STATES CONSULATE Table of Contents A. INTRODUCTION B. COMMON TERMS AND CONCEPTS C. THE WAIVERS (g) - health (h) - crimes (i) - fraud or misrepresentation (d)(11) - alien smuggling (a)(9)(A)(iii) - prior removal (deportation); the 212 waiver (a)(9)(B)(v) - unlawful presence D. A NOTE REGARDING VAWA E. PRACTICAL CONSIDERATIONS F. A SALUTE TO THE UNCOMMON WAIVER A. INTRODUCTION To put it in as plain terms as possible, people who are seeking to be allowed into the United States must prove that they are admissible and will not be allowed into this country if they are found to be inadmissible. Sometimes, a finding of inadmissibility is the end of the road. For example, findings of inadmissibility based on nazism, drug trafficking, and having made a false claim to being a United States citizen permanently prevent a person from being admitted to the United States. Other grounds of inadmissibility can be forgiven, and this forgiveness is referred to as a waiver. This paper will only address the most common waivers as determined by the authors. B. COMMON TERMS AND CONCEPTS Immigration and Nationality Act ( INA ) The INA lives in Title 8 of the United States Code. It is common practice within the immigration field to cite to the provisions of the INA directly (e.g. INA 212). First enacted in 1952, the INA has been amended many times, and as a result the sections of the Act are not aligned with the numbering of Title 8. Thus, for example, INA 212 is 8 U.S.C

34 Chapter 3 2 of 24 Qualifying Relative This is not a term defined in the law. Most waivers in immigration require the involvement of one or more relatives, and some require proof of hardship to one or more relatives. These are generically referred to as qualifying relatives. Son/Daughter versus Child The definition of a child essentially has two parts: the person, and the relation. First, the person has to be unmarried and under 21 years of age. Second, the person needs to have been born to married parents or else have a valid parental relationship as defined in the statute. INA 101(b). A son or daughter then is someone who has the relation part of the equation, but not the marital status or age part of the equation. Another way to think about it is that to be a son or daughter one needs to have been a child at some point. Extreme Hardship Extreme hardship to a qualifying relative is a required element in several different waivers. There is no definition of this term in the statute. According to the Board of Immigration Appeals, in general: extreme hardship means something more than the ordinary hardship one would suffer in being separated from a spouse, children, and other loved ones, or from a country and lifestyle one had become accustomed to. Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999). According to this same case, extreme hardship can be shown based on the following factors: the presence of lawful permanent resident or United States citizen family ties to this country; the qualifying relative s family ties outside the United States; 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; the financial impact of departure from this country; and, finally, significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Cervantes-Gonzalez, 22 I&N Dec. at Not all of the factors are required, but a balance of these factors illustrates the extreme hardship requirement under the law. Id. NOTE that the President s executive action in 2014/2015 MAY change this standard so be sure to check recent authorities on this, especially policy memos arising from the executive action.

35 Chapter 3 3 of 24 Violence Against Women Act ( VAWA ) The Violence Against Women Act ( VAWA ) was enacted in The Act addressed violence against women in many parts of federal law. Regarding immigration, VAWA touched many, many different provisions and created several waivers or modified existing waivers in ways meant to help victims of domestic abuse. C. THE WAIVERS (g) - health INA 212(a)(1)(A) makes a person inadmissible based on certain communicable diseases of public health significance, vaccination requirements, and mental/physical disorders with associated harmful behavior. Communicable disease of public health significance is defined to include chancroid, gonorrhea, granuloma inguinale, leprosy (infectious), lymphogranuloma venereum, syphilis (infectious stage), and active tuberculosis. 42 CFR 34.2(b). It also includes communicable diseases listed by Presidential Executive Order for quarantine and isolation (currently cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers, SARS, and flu that can cause a pandemic) and communicable diseases that may pose a public health emergency of international concern (e.g. a disease that requires notification of the World Health Organization). Id. Notably, as of January 4, 2010, HIV infection is no longer defined as a communicable disease of public health significance and does not form a ground of inadmissibility. The 212(g) waiver addresses the three subsections of 212(a)(1)(A) separately. Thus, the communicable diseases of public health significance ground is waivable based on a certain qualifying relatives (though no hardship is required) or VAWA status, the vaccination ground is waivable by getting the vaccination or demonstrating one of several acceptable reasons (medical or religious) to waive the requirement, and the mental/physical health condition with harmful effects is waivable based on separate regulations. The VAWA waiver merely requires that the applicant qualify as a VAWA self-petitioner. INA 212(g)(1)(C) (h) - crimes Section 212(h) waives inadmissability for a crime involving moral turpitude, multiple criminal convictions, prostitution or commercialized vice, a single conviction for simple possession of 30 grams or less of marijuana, and serious criminal activity committed by an individual who asserts immunity from

36 Chapter 3 4 of 24 prosecution. INA 212(a)(2)(A)(i)(I), INA 212(a)(2)(B), INA 212(a)(2)(D), INA 212(a)(2)(A)(i)(II), INA 212 (a)(2)(e). There are restrictions on this waiver and the terms of the waiver have been greatly affected by litigation. Accordingly, detailed discussion of this waiver is beyond the scope of this paper. Nevertheless, we will note that this is one of the waivers that requires showing extreme hardship to a qualifying relative. Qualifying relatives under section 212(h)(1)(B) are parents, spouses, and children who are United States citizens or LPRs. Generally, the alien must show that the favorable factors (rehabilitation, stability, positive contributions to society etc.) outweigh the negative factors. The standard that is used is found in Matter of Marin, 16 I&N Dec. 581 (BIA 1978) (i) - fraud or misrepresentation INA 212 (a)(6)(c)(i) makes inadmissible anyone who, by fraud or willfully misrepresenting a material fact, seeks to procure... a visa, other documentation, or admission into the United States or other benefit provided under [the INA]. This is generally interpreted broadly by the government. An alien is eligible to apply for a waiver of this ground under INA 212(i) if he or she is the spouse, son, or daughter of a United States citizen or lawful permanent resident. The alien must show extreme hardship to the qualifying relative. Extreme hardship is not a fixed term, therefore, it is pertinent to analyze all the surrounding facts and circumstances using the Matter of Cervantes- Gonzalez, factors (d)(11) - alien smuggling Noncitizens who smuggle aliens into the United States are inadmissible under INA 212(a)(6)(E)(i). This section states that an individual is inadmissible if he or she brings aliens into the country or encourages, induces, assists or aids the entry of individuals into the United States. The government is not even required to prove financial gain. However, to be found inadmissible, the individual must be aware of facts that would have caused a reasonable person in like circumstances to deduce that participation may result in the illegal entry of an alien into the United States. INA section 212(a)(6)(E)(i); Julie C. Ferguson, AILA s Focus on Waiver s Under the Immigration and Nationality Act 97 (2008). Section 212(d)(11) provides a LIMITED discretionary waiver of this ground of inadmissibility. Lawful permanent residents and other family-based immigrants who smuggle a spouse, parent, son, or daughter into the United States are eligible for the waiver. The waiver does not require hardship. Instead, the applicant must appeal to the government s discretion and argue that the applicant is deserving of the waiver for humanitarian purposes, to assure family unity or when it is otherwise in the public interest. INA 212(d)(11).

37 Chapter 3 5 of 24 To be eligible, the required family relationship must have existed at the time of the smuggling, not the time of application (d)(12) - the civil penalty for fraud INA 212(a)(6)(F) renders inadmissible anyone who is the subject of a final order for violating 8 U.S.C. 1324c (having to do with various forms of document fraud). Section 212(d)(12) provides a LIMITED waiver for this ground that only applies if it is the first and only such final order and the offense was committed solely to assist, aid, or support the alien s spouse or child (and not another individual). If eligible to seek this waiver, the applicant needs to persuade the government, in its discretion, that a grant is necessary for humanitarian purposes or to assure family unity (a)(9)(A)(iii) - prior removal (deportation); the 212 waiver Under INA 212(a)(9)(A) arriving aliens who have previously been ordered removed under INA 235(b)(1) (having to do with applicants for admission) or who have been previously ordered removed at the end of proceedings under INA 237 (removal proceedings before an immigration judge) or other aliens not in the arriving alien posture who have been ordered removed under INA 237 or any other provision of law and who seeks admission within 10 years, is inadmissible. An alien who left the United States with an order of removal outstanding and seeks admission within 10 years is inadmissible. Finally, if any alien, arriving or not, who has been removed twice or more, seeks admission within 20 years of that removal or departure, he or she will be found inadmissible, and the same goes for an alien convicted of an aggravated felony who at any time seeks admission. The so-called 212 waiver isn t really a waiver at all but an exception. Thus, the exception to the above bars is this: the above grounds of inadmissibility shall not apply to an alien seeking admission within a period if, prior to the date of the alien s re-embarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to the alien s reapplying for admission. We believe this is commonly called a 212 waiver because it is Form I-212 that one uses to seek this advance consent to reapply for admission (a)(9)(B)(v) - unlawful presence Under INA 212(a)(9)(B)(ii) an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United

38 Chapter 3 6 of 24 States without being admitted or paroled. There are exceptions for minors, asylum seekers, and for family unity and VAWA, and there is limited tolling for good cause. See INA 212(a)(9)(B)(iii)-(iv). Under INA 212(a)(9)(B)(i)(I), an alien unlawfully present in the United States for 180 days or more but less than 1 year who leaves the United States voluntarily and prior to removal proceedings, and then seeks to be admitted to the United States less than three years since leaving, will be found to be inadmissible. Under INA 212(a)(9)(B)(i)(II), an alien unlawfully present in the United States for 1 year or more and then after departing seeks admission less than 10 years after leaving is inadmissible. These grounds of inadmissibility are commonly referred to within the immigration community as the three and ten year bars and are often referred to together as the unlawful presence bars as they effectively result in a period of being barred from returning to the United States. Please note that these bars are not triggered until the person actually departs the country. There is a true waiver of these bars at INA 212(a)(9)(B)(v). It is a simple extreme hardship waiver: The Attorney General has sole discretion to waive [the above unlawful presence grounds of inadmissibility] in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. Other than the fact that this waiver depends entirely on the showing of hardship (defined and discussed above) it should be noted that the only qualifying relatives are spouses and parents who are United States citizens or Lawful Permanent Residents. This is quite narrow and greatly limits the number of aliens eligible to seek the waiver. This is striking given that this is probably the most common waiver sought by intending immigrants abroad. Another facet of this waiver that made it particularly frustrating for those who would have benefitted from it was that until recently one could not even seek the waiver unless one was already outside the United States. Add to this the uncertainties of how long the adjudication of the waiver might take, and it generally imposed significant hardship on the families of those eligible for the waiver. In March of 2013, a policy crafted by the Obama administration alleviated some of this hardship. Under the stateside processing or provisional waiver system, aliens who can show that there is no reason to believe that they are subject to any ground of inadmissibility other than the unlawful presence bars,

39 Chapter 3 7 of 24 who have an immediate relative petitioning for them, and who have a qualifying relative are eligible to ask United States Citizenship and Immigration Services to provisionally adjudicate their 212(a)(9)(B)(v) unlawful presence waiver. If the waiver is provisionally granted, it creates a strong presumption that the Department of State will approve the waiver when the alien departs the United States to complete the immigrant visa process at the consular office abroad. It is important to remember that if the alien is in removal proceedings the alien must have his or her case administratively closed prior to applying for the provisional waiver. The alien must also have paid the visa processing fees with the National Visa Center as well, which also means that the Form I-130 must already be approved with the National Visa Center prior to applying for the provisional waiver. Other than the shifts in timing and authority (granting USCIS jurisdiction to adjudicate the waiver) there shouldn t be anything different about the extreme hardship analysis whether applied abroad or domestically. Yet there have been controversies. The National Benefits Center has stated that between the October March 4 - September 14, 2013 period, there were 3,497 approvals (59%), 2,292 denials (39%), 103 admin closures, and the remaining 2% were returned for various reasons, e.g., filed on form I-601 instead of on form I-601A. This approval rate is much lower than the approval rating for unlawful presence waivers sought in Ciudad Juarez. It appears that the two major reasons for denial rate were reason to believe (48% of all denials) and failure to establish extreme hardship (41% of all denials). Other reasons for denial include abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and applicant subject to existing or final order of removal. Furthermore, practitioners initially noticed a rise in generic requests for evidence ( RFE ), leading many to believe the reviewing officer is not considering the submitting waiver package. In the fall of 2016 two important policy updates occurred. On August 29, 2016 stateside waivers were expanded to include spouses and children of lawful permanent residents as qualifying relatives. Then on October 21, 2016 USCIS released a Policy Alert regarding the extreme hardship standard. In this long awaited update, USCIS clarified the extreme hardship standard. Along with providing a list of factors that USCIS may consider when making determinations, the Policy Alert provides scenarios which guide advocates in determining if their client qualifies for the stateside waiver. Furthermore, the Policy Alert emphasized that the extreme hardship suffered must be greater than the hardship that usually results from denials of admission and that hardship of two or more qualifying relatives can be considered in the aggregate, i.e. even if no single qualifying relative alone suffers hardship that by itself is severe enough to be extreme.

40 Chapter 3 8 of 24 There is no mechanism to appeal a denial or seek reconsideration. However, the NBC can reopen a case on its own if it believes a denial was made incorrectly. A Final Note Regarding Unlawful Presence: It is very important to be aware that an alien who accrues one year or more of unlawful presence or who has been ordered removed, leaves the United States, and then re-enters the United States without being admitted, is inadmissible. Period. Only VAWA provides a waiver to this bar. This bar is sometimes referred to as an unwaivable bar. D. A NOTE REGARDING VAWA The primary immigration benefit created by VAWA is a process called a self-petition were certain aliens are permitted to apply for an immigrant visa by themselves (as compared to someone whose spouse applied for her, for example). The following waivers of inadmissibility (discussed above) include VAWA-specific waivers that are more generous than the non-vawa waivers: (1) INA 212 (g) - waiver for certain health-related grounds; (2) INA 212(h) - waiver for criminal conduct; (3) INA 212(i) - waiver for fraud or misrepresentation; (4) INA 212(a)(9)(B)(v) - waiver for unlawful presence; and (5) INA 212(a)(9)(C)(ii)- waiver of unlawful entry after previous immigration violations. The following are the applicable standards one must show to qualify for a waiver as modified by VAWA. The VAWA waiver for communicable disease of public health significance and for criminal conduct only require that the visa applicant qualify as a VAWA self-petitioner. INA 212(g)(10)(C);INA 212(h). The VAWA waiver for fraud or misrepresentation adds consideration of hardship to the petitioner herself and her children in addition to the usual qualifying relatives (spouse and parents who are citizens or LPRs). INA 212(i); the unlawful presence inadmissibility ground does not apply to VAWA selfpetitioners who entered the United States before April 1, 1997 and it does not apply to those that entered after April 1, 1997 if the petitioner can show that there is a substantial connection between abuse suffered and violation of the nonimmigrant visa. Very significantly, VAWA self-petitioners are permitted to seek a waiver of the otherwise unwaivable ten year bar due to unlawful entry after previous immigration violations (described above), though this waiver requires that the self-petitioners show a connection between the abuse suffered and the self-petitioner s removal, departure from the United States, re-entry or reentries, or attempted reentry. Id. It is important to note that VAWA Waivers are discretionary. Regardless of whether the statutory standard has been met, the adjudicating agency may deny the waiver. In Matter of Mendez, the Board of Immigration Appeals provides a comprehensive list of the equities taken into consideration in the adjudication

41 Chapter 3 9 of 24 process. Matter of Mendez, 21 I&N Dec. 296 (BIA 1996); Evangeline Abriel & Sally Kinoshita, The VAWA Manual: Immigration Relief for Abused Immigrants, Immigrant Legal Resource Center 7.2 (5th ed. 2008). E. PRACTICAL CONSIDERATIONS A form I-601 and supporting documentation must be filed for the following waivers: INA 212(h), INA 212(i), INA 212(a)(6)(C), INA 212(g), INA 212(a)(9)(B)(v), INA 212(a)(9)(C), INA 212(a)(3)(D), INA 212(a)(6)(C), INA 212(a)(6)(E). Each I-601 application should contain the following: form I-601, applicable check or money order, index, and evidence to fulfill the respective statutory standard. The form I-601 and supporting documentation must be submitted to the appropriate authority. There is of course a filing fee which at the time of this writing sits at $585. As submission locations are subject to change, please visit the following USCIS website to determine where to file the form I- 601: If the I-601 waiver is denied, the applicant may appeal to the Administrative Appeals Office (AAO). Form I-601A is the form to seek the stateside processing of the unlawful presence waiver. It should be filed with the extreme hardship evidence and a cover letter or brief. Currently there is no interview that goes with the adjudication of the I-601A, and currently there is no review of the decision on an I-601A although reopening may be possible. There is a $670 filing fee ($585 + $70 biometric fee). As submission locations are subject to change, please visit the following USCIS website to determine where to file the form I-601A: Finally, Form I-212 is used to seek advance permission to apply to enter the United States. This form should be filed in much the same way as Form I It also carries a $585 filing fee. As submission locations are subject to change, please visit the following USCIS website to determine where to file the form I-212: F. A SALUTE TO THE UNCOMMON WAIVER This paper has focused only on the waivers that we have arbitrarily identified as common. We have not addressed the following waivers, and possibly a few more that are even more uncommon: INA 209(c) - This waiver is only available to unadjusted refugees and asylees and waives everything other than drug trafficking and security related grounds (i.e. terrorism) for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.

42 Chapter 3 10 of 24 INA 245(l) - This powerful waiver that can forgive most of the common grounds of inadmissibility is only available to T-visa (victims of human trafficking) grantees. INA 245(m) - This powerful waiver that can forgive most of the common grounds of inadmissibility is only available to U-visa (victims of certain violent crimes) grantees. INA 212(k) - This waiver permits the Attorney General to waive inadmissibility based on a lack of immigration documents required at 212(a)(7)(A) (for immigrants) and 212(a)(7)(B) (for nonimmigrants) and essentially turns on proving a lack of intent. December 2016

43 Chapter 3 11 of 24 COMMON TERMS AND CONCEPTS

44 Chapter 3 12 of (g) - health makes a person inadmissible based on certain communicable diseases of public health significance, vaccination requirements, and mental/physical disorders with associated harmful behavior. Note HIV is no longer defined as a communicable disease of public health significance and does not form a ground of inadmissibility. 212(h) - crimes Section 212(h) waives inadmissability for a crime involving moral turpitude, multiple criminal convictions, prostitution or commercialized vice, a single conviction for simple possession of 30 grams or less of marijuana, and serious criminal activity committed by an individual who asserts immunity from prosecution. Waiver requires showing of extreme hardship to USC/LPR parent, spouse or child.

45 Chapter 3 13 of (i) - fraud or misrepresentation 212(i) - fraud or misrepresentation anyone who, by fraud or willfully misrepresenting a material fact, seeks to procure... a visa, other documentation, or admission into the United States or other benefit provided under [the INA].

46 Chapter 3 14 of (i) - fraud or misrepresentation inadmissible anyone who, by fraud or willfully misrepresenting a material fact, seeks to procure... a visa, other documentation, or admission into the United States or other benefit provided under [the INA]. eligible to apply for a waiver if he or she is the spouse, son, or daughter of a United States citizen or lawful permanent resident. Extreme hardship standard 212(d)(11) - alien smuggling

47 Chapter 3 15 of (d)(11) - alien smuggling to be found inadmissible, the individual must be aware of facts that would have caused a reasonable person in like circumstances to deduce that participation may result in the illegal entry of an alien into the United States. LIMITED discretionary waiver of this ground of inadmissibility. Lawful permanent residents and other family-based immigrants who smuggle a spouse, parent, son, or daughter into the United States are eligible for the waiver. Humanitarian Standard 212(a)(9)(A)(iii) - prior removal (deportation); the 212 waiver arriving aliens who have previously been ordered removed or who have been previously ordered removed at the end of proceedings under INA 237 or other aliens not in the arriving alien posture who have been ordered removed under INA 237 or any other provision of law and who seeks admission within 10 years, is inadmissible. An alien who left the United States with an order of removal outstanding and seeks admission within 10 years is inadmissible. Finally, if any alien, arriving or not, who has been removed twice or more, seeks admission within 20 years of that removal or departure, he or she will be found inadmissible, and the same goes for an alien convicted of an aggravated felony who at any time seeks admission. The so-called 212 waiver isn t really a waiver at all but an exception. Thus, the exception to the above bars is this: the above grounds of inadmissibility shall not apply to an alien seeking admission within a period if, prior to the date of the alien s re-embarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to the alien s reapplying for admission. We believe this is commonly called a 212 waiver because it is Form I-212 that one uses to seek this advance consent to reapply for admission.

48 Chapter 3 16 of 24 3 and 10 Year bars 3 Year Bar: an alien unlawfully present in the United States for 180 days or more but less than 1 year who leaves the United States voluntarily and prior to removal proceedings, and then seeks to be admitted to the United States less than three years since leaving, is inadmissible. 10 Year Bar: an alien unlawfully present in the United States for 1 year or more and then after departing seeks admission less than 10 years after leaving is inadmissible. Unlawful presence waiver (I-601 Waiver) Eligible if you are the spouse or son/daughter of a United States citizen or lawful permanent residence Extreme Hardship Standard Problem: Have to wait in home country while waiver is reviewed (anywhere from 4-12 months)!

49 Chapter 3 17 of 24 STATESIDE WAIVER (I-601A) March of 2013, a policy crafted by the Obama administration alleviated some of this hardship Must be 17 years of age or older. Must be an immediate relative of a U.S. citizen or Lawful Permanent Resident. Extreme hardship to qualifying relative standard Must be physically present in the United States to file your I-601A application for a provisional unlawful presence waiver and provide biometrics. Stateside WAIVER Process File Form I-601A Provide proof of payment of NVC fees If approved, continue with consular process and seek consular interview

50 Chapter 3 18 of 24 Positives: No longer have to wait outside the United States while waiver is processed. Negatives: Unlawful Presence Only Provisional approval Consular Process Still Required! Lower approval rate compared to I-601 unlawful presence waiver

51 Chapter 3 19 of 24 Recent Updates: Qualifying Relatives Expansion of Stateside waivers under August 29, 2016 Executive Action to include spouses and children of lawful permanent residents as Qualifying Relatives! Recent Updates: Extreme Hardship Standard On October 21, 2016 released a Policy Alert regarding the extreme hardship standard! Extreme hardship must involve suffering or loss that is greater than the hardship that usually results from denials of admission. Provides a non-exhaustive list of factors that USCIS may consider when making extreme hardship determinations. Hardship to two or more qualifying relatives may rise to the level of extreme in the aggregate, even if no single qualifying relative alone suffers hardship that by itself is severe enough to be extreme.

52 Chapter 3 20 of 24 Factors to be considered: Family separation; Economic detriment; Difficulties of readjusting to life in the new country; The quality and availability of educational opportunities abroad; Inferior quality of medical services and facilities; and Ability to pursue a chosen employment abroad. Processing Times The NBC has not published stated processing times! Estimates range from 2 months to 6 months. Advise clients at consultation regarding the different steps in the process in order to manage expectations.

53 Chapter 3 21 of 24 Are All Stateside waivers treated equally? There has been a spike in boilerplate RFEs. AILA filed a FOIA to request the statistics in December of Prepare your clients for the possibility of an RFE, even in strong cases. Encourage clients to continue saving documents until waiver adjudicated. Trends in Approvals and Denials of Stateside Waivers (Cont.) DENIALS reason to believe failure to establish extreme hardship Other reasons for denial include abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and applicant subject to existing or final order of removal.

54 Chapter 3 22 of 24 Clients in Removal Proceedings Removal Proceedings must be admin closed to seek I-601A. File joint motion to OPLA with proof of NVC fee payment. Nag them incessantly until you receive a decision. Once waiver approved, move to re-calendar and terminate for consular interview (this may involve more nagging). Scenario 1 (from USCIS Policy Alert) Tyler was admitted to the United States as a nonimmigrant 5 years ago. Three years after Tyler s entry, Tyler married Pat, a U.S. citizen spouse. Tyler seeks a waiver claiming that Pat would suffer extreme hardship if Tyler were denied admission to the United States. Pat submits a credible, sworn statement indicating that if Tyler is refused admission, Pat would relocate to Tyler s native country. Tyler and Pat have been married for 2 years. Pat is a sales clerk. A similar job in the country of relocation would pay far less than Pat earns in the United States. In addition, although Pat has visited the country of relocation several times, Pat is not fluent in the country s language and lacks the ties that would facilitate employment opportunities and social and cultural integration. Tyler is a skilled laborer who similarly would command a much lower salary in the country of relocation, but who was, prior to coming to the United States, gainfully employed. The couple is renting an apartment in the United States, does not own any real estate or other significant property, and has no children. Pat and Tyler do not have any other family, either in the United States or in the country of relocation. Analysis of Scenario 1 These facts alone generally would not favor a finding of extreme hardship. The hardships to Pat, even when aggregated, include only common consequences of relocation economic loss and the social and cultural difficulties arising mainly from Pat s inability to speak the language fluently.

55 Chapter 3 23 of 24 Scenario 3 (from USCIS Policy Alert) Assume the facts are the same as originally presented in Scenario 1 (without the additional facts from Scenario 2), but now with the added facts that Tyler also has LPR parents who live in the United States. Pat submits a credible, sworn statement indicating that Pat would relocate with Tyler and that Tyler s LPR parents would remain in the United States. Again, when analyzing the additional evidence under the totality of the circumstances, the evidence shows Pat will still relocate with Tyler. Tyler and Pat both have a close relationship with Tyler s parents, who are elderly and nonnative English speakers. Tyler regularly transports the parents to medical appointments, translates medical and other instructions, and offers them significant emotional support. As a result of the separation from Tyler and Tyler s spouse, Tyler s parents would suffer significant emotional hardship. Analysis of Scenario 3 Based on the totality of the evidence presented, the addition of these facts would generally favor a finding of extreme hardship. There are now 3 qualifying relatives (Tyler s U.S. citizen spouse and Tyler s two LPR parents). Although the aggregated hardships to Tyler s spouse alone (under Scenario 1) include only common consequences of a refusal of admission, aggregating those hardships with the hardships to Tyler s elderly parents, which include the potential disruption of their medical care, loss of ability to navigate their surroundings in English, and their significant emotional hardship resulting from the loss of their child s support, would generally tip the balance in favor of a finding of extreme hardship. Scenario 5 JK has lived continuously in the United States since entering without inspection 6 years ago. She married LM, her U.S. citizen husband, 2 years ago. JK seeks a waiver on the basis that LM would suffer extreme hardship if JK were denied admission to the United States. JK and LM live near LM s family and friends, and LM has spent little time traveling abroad. He does not speak the language of the country to which JK would return if she is denied admission, and LM s employment opportunities in that country would be less desirable than in the United States. Additionally, DOS has issued a travel warning that strongly advises against travel to specific regions in the country to which JK would return, including the region where her family lives. The region-specific warning affirmatively recommends against non-essential travel to that region, citing the high rate of kidnapping and murder. LM submits a credible, sworn statement indicating that due to his recent marriage, the difficulties JK would face in her country, and his commitment to supporting her however possible, he would relocate to remain with JK if she is denied a waiver. Analysis of Scenario 5 The totality of these circumstances generally would favor a finding of extreme hardship, significantly in light of the nature and severity of the DOS travel warning. Although the other hardships present in the case are common consequences of relocation, LM has also demonstrated that he will return to the region of a country that is the subject of the DOS travel warning, which advises against non-essential travel to that region. The travel warning recommending against travel to that particular region of that country to which LM would relocate is a particularly significant factor that would often weigh heavily in support of a finding of extreme hardship. If the travel warning were less severe or only temporary, the warning would not qualify as a particularly significant factor but would be another factor to be considered in the totality of the circumstances by the officer. Alternatively, in some circumstances where DOS has issued travel warnings with regard to a particular region of a country, the applicant and qualifying relative may relocate to a different region of the country that is not subject to a travel warning. In such a situation, the fact of the region-specific travel warning would not itself constitute a particularly significant factor; however, the hardships arising from relocating to another region of the country remains a factor to be considered and may result in a finding of extreme hardship, based on the totality of the circumstances. [22]

56 Chapter 3 24 of 24 A NOTE REGARDING VAWA VAWA waivers are all discretionary There are various waivers for many of the areas we discussed today Important Note: VAWA self-petitioners are permitted to seek a waiver of the otherwise unwaivable ten year bar. Must show a connection between the abuse suffered and the self-petitioner s removal, departure from the United States, re-entry or re-entries, or attempted reentry

57 FAMILY IMMIGRATION LAW Professionalism in Family Immigration Law Nisha K. Karnani Antonini & Cohen Immigration Law Group Atlanta, Georgia

58

59 Chapter 4 1 of 7 Nisha Karnani