ANOTHER KENYAN I-601 WAIVER SUCCESS STORY AND THE CONCEPT OF "EXTREME HARDSHIP"

Innocent errors or omissions on non-immigrant visa applications to the United States can sometimes lead to incredibly serious consequences later in an alien's attempt to adjust his or her status to Lawful Permanent Residence (LPR) in the United States.  So it was for a client of mine from Kenya who I have had the privilege of representing since January 2013.

The case was to be a straightforward adjustment before USCIS where the alien is married to a US Citizen (USC) and is immigrating on that basis.   However, a wrinkle developed after the interview wherein we were notified that USCIS believed that the alien had made a fraudulent representation on the visa application.  We found however that what was alleged to have been a fraudulent misrepresentation, was nothing more than the alien's innocent failure to update the visa application at the visa interview, with new and relevant information which had come to pass after the visa application had been filed, but before such visa interview.

Nevertheless, we were forced to file an I-601 waiver application and relevant documentation in support of that application in an attempt to waive the alleged visa fraud.  In this process we are required to demonstrate that the removal of the alien would cause "extreme hardship" to the USC spouse.  The term "extreme hardship" is subject to the discretionary interpretation of the adjudicator on a case by case basis. However, 8 C.F.R. 1240.58 lists 14 factors to examine in the analysis of whether the alien has demonstrated such hardship as follows:

1.  The age of the alien, both at the time of entry to the United States and at the time of application;
2.  The age, number and immigration status of the alien's children and their ability to speak the native language and to adjust to life in the country of return;
3.  The health condition of the alien or the alien's children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned;
4.  The alien's ability to obtain employment in the country to which the alien would be returned;
5.  The alien's length of residence in the United States;
6.  The existence of other family members who are or will be legally residing in the United States;
7.  The financial impact of the alien's departure;
8.  The impact of a disruption to educational opportunities;
9.  The psychological impact of the alien's deportation;
10.The current political and economic conditions in the country to which the alien would be returned;
11. Family and other ties to the country to which the alien would be returned;
12. Contributions to and ties to a community in the United States, including the degree of integration into society;
13. Immigration history, including authorized residence in the United States; and
14. The availability of other means of adjusting to permanent residence status.

This list is by no means exhaustive and there may be other factors which are peculiar to a family or couple and their circumstances which might well qualify the alien for the waiver.  However, "extreme hardship" is thought to be something beyond the common inconveniences or hardships normally associated with deportation, and economic hardships alone are usually insufficient to qualify the alien for the waiver.  A combination of hardships however, in aggregate, could well warrant approval.  It is also wise to pay particular attention to what the USC family member would suffer if the alien is deported.

In our case there were unique hardships which were revealed to both the alien and USC spouse, which were able to successfully articulate in the waiver application and its attachments, and which we felt would be persuasive.

On July 7, 2014, my office was advised by e-mail that the 601 waiver and adjustment of status had been approved.  The client should be receiving formal approval notices and the green card in a matter of weeks.

Congratulations to this client and gratitude as always, to USCIS.

By: Duane M. Hamilton