SUCCESSFUL UNLAWFUL PRESENCE WAIVER CASE

·         Client: Ms. Huang

·         Applying for: I-601A Provisional Unlawful Presence Waiver

·         Nationality: Chinese

·         Marriage: Naturalized US Citizen husband

·         Number of Children: US citizen step daughter

·         Challenges:

o    Ms. Huang’s immigrant visa had been denied after two separate interviews at the US Consulate in Guangzhou, China.

o    The denial was erroneously issued because Ms. Huang had been the victim of fraud.

o    The interviewing officer wrongly assumed that Ms. Huang was responsible for committing fraud.

o    We had to explain that she was the victim of fraud, not the perpetrator of it.

Ms. Huang* came to Tsang and Associates strongly needing assistance in obtaining an I-601A Provisional Unlawful Presence Waiver. Without it, Ms. Huang would suffer tremendous losses of opportunity in the United States and would lose eligibility to come to the United States and leaving behind her U.S. citizen husband and step daughter. In this case, on June 29, 2011, the U.S. Consulate in Guangzhou denied Ms. Huang’s application for an immigrant visa.  Ms. Huang was first interviewed in April 2011 and appeared for a second interview in June 2011. The interviewing officer found Ms. Huang to be ineligible due to fraud/misrepresentation on the basis that Ms. Huang’s husband had found a joint sponsor for Ms. Huang through a newspaper advertisement. The officer deemed the advertisement by the potential joint sponsor to be fraudulent. Distressed, Ms. Huang sought our help in her waiver application that was previously denied. After sitting down with her and her family during a strategy session, we were able to compile evidence and submit the application on March 12, 2012 which was subsequently approved in early 2013.

KEYS TO SUCCESS

Victim of Fraud:

When Ms. Huang first came to us and explained her situation, we were confident that we could prove that should Ms. Huang be denied a waiver and face deportation, very dire consequences would occur. First, we needed to explain the fraud issue and how Ms. Huang and her family were not at fault, but rather were themselves the victims of fraud.

We were able to demonstrate that Ms. Huang was a victim of an unscrupulous individual who provided false information to Applicant and her husband in an effort to receive compensation for his services. Applicant and her husband naively “bought into” this individual’s false statements, and neither Applicant or her spouse had any knowledge that Mr. Chan had previously sponsored other applicants or had submitted any documentation that may have proved to be false or inaccurate.  Applicant simply fulfilled the joint sponsorship requirement through a paid service, which does not in itself render Applicant inadmissible. We were able to demonstrate this by assisting our client and her husband in the writing of personal affidavits. We were further able to help our client secure a new joint sponsor, by asking the petitioner’s husband’s coworker and wife. We also helped them prepare their documents.

We also presented the law in detail so as to demonstrate the interviewing officer’s errors. Prior law pertaining to the Affidavit of Support considered sponsorship to be a moral obligation that necessitated the affiant to be a family or friend.  However, the law currently defines sponsorship as simply a contractual obligation, which can be fulfilled by any affiant who is not necessarily a family member or a close friend. Since an affidavit of support does not require the potential joint sponsor to be a friend or to be related, as long as the affiant did not submit fraudulent documentation to include tax returns, employment letters, and earning statements, it is not material if the sponsor is found to consist of or be part of a paid service.

The sponsor must be a U.S. citizen or permanent resident and must have sufficient income to support not only his or her own family but also the immigrant and the immigrant’s accompanying family.  Most applicants who apply for U.S. permanent residence ("green card") status need a sponsor who is willing to sign an Affidavit of Support on their behalf. Often the sponsor is a close family member, or a spouse (who may have some legal obligation for support in any event). However, a joint sponsor may be any party who fulfills the legal requirements noted above.

Extreme Hardship:

According to USCIS regulation, the waiver would only be approved if we were able to show that extreme hardship would occur subsequent to the denial. Although extreme hardship is not explicitly defined by USCIS, some factors of interest include the presence of a lawful permanent resident or U.S. citizen spouse or parent in this country, the qualifying relative’s family ties outside the U.S., the conditions in the country or countries to which the qualifying relative would relocate and the extend of the qualifying relative’s ties in such countries, the financial impact of departure from this country, and significant conditions of health.

We showed that should Ms. Huang’s petition not be approved, her marriage with Mr. Yu would result in dissolution. We wrote in the affidavits that we drafted for them that Mr. Yu and Ms. Huang had talked about this devastating possibility since the June 2011 denial, and the only available choice for this particular family would result in the dissolution of the marriage.  Mr. Yu would likely not be able to return to China, because he would probably be unable to meet the requirements for citizenship in China, due to having abandoned his Chinese citizenship and having received U.S. citizenship through a prior application for asylum. According to Chinese law on this matter, foreign nationals who once held Chinese nationality may apply for restoration of Chinese nationality, but they must have a legitimate reason for their request and they shall not retain foreign nationality. In this scenario, we were able to show that Mr. Yu would likely not be deemed to have a “legitimate” reason for his request, as he left China on the basis of an application for asylum – a condition that would not yield any leniency or goodwill from the Government of China. Further, he would suffer the most grievous hardship of all – having to renounce his U.S. citizenship.

We also demonstrated that Mr. Yu’s daughter would be forced to abandon her lawful permanent resident status and leave the United States if the waiver is not granted. The daughter was an aspiring dancer, who was seeking to further her career in the United States. She had no financial capability to sustain herself in the United States, and if Mr. Yu were forced to return to China she would have to forfeit her schooling, and her dreams in the United States. In the event that Mr. Yu would be forced to quit his job, and halt his earning capacity, he would have been left with no other option but to stop funding and contributing to his daughter’s education, living expenses, and dreams.  Further, even if he were not to return to China, the depression of Mr. Yu’s daughter caused from being torn away from her mother would be exacerbated with the subsequent divorce between her two parents.  Any leftover income that would have been set aside for assisting his daughter would need to be used for attempting to meet Applicant’s spouse in China (if possible) or in a 3rd country, using up all of their minimal disposable income.

Thus, we established that every consequence of Ms. Huang’s potential departure from the United States would bring about significant and extreme hardship to both her immediate family and extended family as well. We proved that it would result in devastating problems and bring about emotional pains and financial suffering for her family. Ultimately, we proved that the social, financial, and familial ties for Ms. Huang were simply too strong to break apart; if they were broken, extreme hardship for the family members would be sure to occur.

 

OUTCOME

We filed the petition in March 2012 and was approved in June 2012 without any request for evidence. Our client was extremely grateful as she could continue living a blessed and joyful life with her family.

*Name has been changed to protect client identity.