ILW.com recently published an interesting article by a former USCIS officer stationed at the London US Embassy, working on I-601 waivers. The question we all ask is whether officers exercise discretion when adjudicating 601 waivers, or are they following the law with respect to the extreme hardship standard.
Officer Heller explains: "When I was adjudicating I-601 waivers at the US Embassy in London my colleagues and I used to theorize on the element of discretion in waiver determinations. Some adhered to a strict constructionist view (discretion only comes into play once extreme hardship is established), others favored what I call a holistic approach (discretion, in a general sense, allows for a contextual assessment of hardship factors)."
He further stated: "In my experience, the holistic approach to 601 waiver adjudication was, in effect, a means of ratcheting the extreme hardship standard one way or another. As such, an individual deemed inadmissible on account of an overstay of one year and two months might enjoy a more relaxed standard than someone who overstayed five years. Similarly, an applicant who worked as a nurse might have an easier time of establishing extreme hardship than, say, a web designer (n.b. I said "applicant" and not "qualifying family member"). Considerations such as those suggested above are not really related to extreme hardship, but they are clearly relevant for assessing discretion."
When we prepare I-601 waivers we often consider that where extreme hardship is a totality determination, discretion is a balancing test (based on the record as a whole).
Some of the favorable factors found in case law are as follows:
Family ties in the United States and the closeness of the underlying relationship;
Unusual hardship to the applicant or to the lawful permanent resident or United States citizens, or relatives and employers;
Evidence of reformation and rehabilitation; Length of lawful residence in the United States and status held during that residence (particularly where the alien began his or her residency at young age);
Evidence of respect for law and order, good moral character, and intent to hold family responsibilities (such as affidavits from family, friends, and responsible community representatives);
Considerable passage of time since deportation or removal;
Deportation or removal for less serious reasons;
Absence of significant undesirable or negative factors; and
Eligibility for waiver of other exclusionary grounds.
Some of the unfavorable factors to consider are:
Evidence of moral depravity, or criminal tendencies reflected by an ongoing or continuing police record, the nature, recency and seriousness of the criminal violations, if any;
Repeated violations of immigration laws, willful disregard for other laws;
Likelihood of becoming a public charge;
Previous instances of fraud in dealings with US immigration authorities or false testimony;
Mandatory grounds of inadmissibility for which no waiver exists or for which the alien is not eligible;
Absence of close family ties or hardships;
Spurious marriage to a USC for the purpose of gaining an immigration benefit;
Serious violations of immigration laws which evidence a callous attitude without hint of reformation of character;
Nature and underlying circumstances of the exclusion ground at issue; and
The presence of other evidence indicative of an alien's bad character or undesirability as a permanent resident of this country.
Upon review of the record as a whole, the adjudicator must balance the positive and adverse factors to determine whether discretion should be favorably exercised.
Read the article
