Michael Cho Immigration Lawyer

What Is the Affirmative Relief Announcement?

On June 18, 2024, President Biden announced a series of immigration actions using the authority granted to him by our existing immigration laws. These actions will help certain undocumented individuals in the United States, including:

Spouses and children of U.S. citizens who have been living in the United States for at least 10 years.
You may be eligible to apply for your green card without leaving the United States, if, as of June 17, 2024:
• You are in the United States after entering without permission;
• You have lived in the United States for at least 10 years and have never left;
• You are legally married to a U.S. citizen or have a qualifying stepchild relationship with a U.S. citizen; and
• You do not have certain criminal history or pose a threat to national security or public safety.

If you meet these criteria, the government MAY grant you parole-in-place.
• Parole would be granted for a one-time period of three years.
• You may also be eligible for employment authorization for up to three years.
• If you are granted parole, you may apply for your green card within three years of approval.
• Eligibility is determined on a case-by-case basis.

College-educated DACA recipients and Dreamers who are qualified for nonimmigrant status, such as an H-1B specialty occupation visa.
• You may be eligible to apply for a temporary visa more easily, if:
• You have a degree from an accredited U.S. institution of higher education; and
• You have an offer of employment from a U.S. employer in a field related to your degree.

Please note that these programs have NOT YET begun. Details on how to apply are expected to be released by the end of the summer through a Federal Register notice. This means:
• You CANNOT submit an application at this time.
• An early-filed application WILL BE REJECTED.

You SHOULD NOT pay anyone a fee associated with filing an application at this time.

BE PATIENT and take the time to find the right help. The wrong advice could harm your chances of staying in the United States, getting lawful status, or becoming a U.S. citizen.

DO NOT BE FOOLED by notarios and other consultants who promise immediate results or special solutions in order to steal your money. Many unscrupulous individuals will cost more than licensed attorneys! If you are unsure if someone is qualified to help, ask for proof of their credentials and retain a copy of that evidence.

This program could also be legally challenged, which could impact its implementation. This makes it even more important to have a qualified, knowledgeable attorney.

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for the foreign husband of a U.S. citizen spouse who was subject to a life-time bar from being admitted to the United States for conviction of multiple crimes involving moral turpitude under INA Section212(a)(2)(A)(i)(I) and fraud/misrepresentationunder INA Section 212(a)(6)(C)(i).

The applicant’s U.S. citizen spouse contacted my office for assistance in obtaining a waiver of both INA Section 212(a)(6)(C)(i) and 212(a)(2)(A)(i)after their previously filed I-601 waiver application (prepared by their previous attorney) was denied. In that first denial, the applicant’s past criminal convictions (“Infliction of Bodily Injury on another Individual”) were deemed by USCIS to be a “violent or dangerous crime” (8 C.F.R.) § 212.7(d).

USCIS does not generally exercise favorable discretion to approve a waiver under INA § 212(h) in cases involving violent or dangerous crimes unless there are extraordinary circumstances present (8 C.F.R.212.7(d)), which include national security considerations; foreign policy considerations; or cases in which the refusal of admission would result in “exceptional and extremely unusual hardship”:

Criminal grounds of inadmissibility involving violent or dangerous crimes. TheAttorneyGeneral, in general, will not favorably exercise discretion under section 212(h)(2) of theAct(8 U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Immigration & Nationality Actin cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of theAct. 8 C.F.R. §1212.7(d)

In other words, not only did our client’s initial I-601 waiver prepared by their previous attorney get denied; their situation was made worse by the USCIS classifying the applicant’s crimes as being “violent or dangerous.”

We prepared a comprehensive I-601 waiver package including a 45 page legal memorandum arguing that the past criminal convictions of our client are neither “crimes involving moral turpitude” nor “violent or dangerous”; the extenuating circumstances surrounding our client’s failure to disclose these convictions on a prior ESTA application (which led to a finding of fraud/misrepresentation by the U.S. consular officer during his immigrant visa interview); and the exceptional and extremely unusual hardships and compelling discretionary factors present in this case.

As part of our immigrant waiver preparation process, we always provide a comprehensive waiver worksheet containinga thorough array of questions for our clients to answer about their lives. This allows us to “brainstorm” every relevant factor (such as medical, physical, psychological, financial, legal, or other hardships)that may apply. We then analyze each factor and decide upon the most effective way to present it to the USCIS in our waiver application.

Our waiver worksheet also contains along checklist of supporting documents to gather and present based upon our experience with successful waiver applications submitted during the past 20+ years.

Overall, our waiver preparation process is constantly improved upon since we regularlyprepare and submit winning immigrant waiver applications for clients who come from countries throughout the world. We are proud to receive multiple approvals on I-601, I-601A, I-212, and 212(d)(3) waiver applications filed on behalf of our clients every single month.

After our I-601 waiver package was submitted and our clients experienced an excessively long delay in receiving a decision from USCIS, I filed a Writ of Mandamus lawsuit against USCIS in the Federal District Court of the Central District of California on behalf of my client.

As part of the Writ of Mandamus lawsuit filed against USCIS, I negotiated with a Special Assistant United States Attorney from the U.S. Department of Justice to reach a favorable outcome for my client. As a result, USCIS not only approved our client’s I-601 waiver, but we were able to get attorneys at the U.S. Department of State to remove the prior finding that our client’s criminal convictions consistuted “crimes involving moral turpitude” altogether.

Section 212(a)(2)(A) of the INA states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admitscommitting acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . is inadmissible .

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age,and the crime was committed (and the alien was released from anyconfinement to a prison or correctional institution imposed for the crime)more than 5 years before the date of the application for a visa or otherdocumentation and the date of application for admission to the UnitedStates, or

(II) the maximum penalty possible for the crime of which the alien wasconvicted (or which the alien admits having committed or of which theacts that the alien admits having committed constituted the essentialelements) did not exceed imprisonment for one year and, if the alien wasconvicted of such crime, the alien was not sentenced to a term ofimprisonment in excess of 6 months (regardless of the extent to which thesentence was ultimately executed).

The Board of Immigration Appeals (BIA) held in Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992), that:

(M)oral turpitude is a nebulous concept, which refers generally to conduct thatshocks the public conscience as being inherently base, vile, or depraved, contraryto the rules of morality and the duties owed between man and man, either one’sfellow man or society in general.. ..In determining whether a crime involves moral turpitude, we consider whether theact is accompanied by a vicious motive or corrupt mind. Where knowing orintentional conduct is an element of an offense, we have found moral turpitude tobe present. However, where the required mens rea may not be determined fromthe statute, moral turpitude does not inhere .

We specifically highlighted in our I-601 waiver that determinations of whether a foreign conviction constitutes a Crime Involving Moral Turpitude (CIMT) requires a categorical analysis, one limited to the elements of the statutory offense, without reference to the specific acts of the individual that satisfy those elements.

This approach is codified in the Foreign Affairs Manual at 9 FAM 40.21(a) N2.1 “Evaluating Moral Turpitude Based Upon Statutory Definition of Offense and U.S. Standards.”

To render an alien ineligible under INA 212(a)(2)(A)(i)(I), the conviction must be for a statutory offense, which involves moral turpitude. The presence of moral turpitude is determined by the nature of the statutory offense for which the alien was convicted, and not by the acts underlying the conviction. Therefore, evidence relating to the underlying act, including the testimony of the applicant, is not relevant to a determination of whether the conviction involved moral turpitude except when the statute is divisible (see 9 FAM 40.21(a) N5.2) or a political offense (see 9 FAM 40.21(a) N10). The presence of moral turpitude in a statutory offense is determined according to United States law. (Emphasis in original).

The FAM list examples of specific offenses that qualify as CIMT including crimes involving fraud, larceny, and intent to harm persons or things. (9 FAM 40.21(a) N2.2). The manual also provides a list of offense which do not constitute CIMT, which list includes:

Assault (simple) (i.e., any assault, which does not require an evil intent or depraved motive , although it may involve the use of a weapon, which is neither dangerous or deadly) (9 FAM 40.21(a) N2.3-3(b); emphasis added).

We re-iterated in our review of the legal standard for classifying a foreign offense as a CIMT, that the USCIS must not consider any of the evidence of the underlying act. Rather, the USCIS must engage in an analysis of the elements of the foreign statutory offense. For a foreign offense to qualify as a CIMT, one of the elements of the offense must be a Mens Rea or specific intent on the part of the offender to cause harm to person or things, or, in the words of the BIA in Perez-Contreras, an intent showing “vicious motive or corrupt mind.” Id. at 617-18.

Thereafter, we analyzed the elements of the foreign criminal statute that our client was found guilty of, and proved that this statute does not contain the mens rea , or intent to inflict harm. Additionally, we noted that the Foreign Affairs Manual of the U.S. Department of State does not permit classification of a crime of “simple assault” as a CIMT. Rather, assaults criminalized by law may only be classified as a CIMT if an element of the offense “requires an evil intent or depraved motive.” (9 FAM 40.21(a) N2.3-3(b)).

In support of our legal analysis, we also included the legal opinion of a foreign criminal lawyer who noted that in the home country of the applicant, the disposition of a punishment of fine is imposed when the offense is not serious and very minor.

As a result of the detailed legal arguments made in our I-601 waiver application, along with my advocacy on behalf of my clients in federal court, the attorneys at the U.S. Department of State agreed that the applicant’s prior criminal convictions do not constitute crimes involving moral turpitude and withdrew that previous finding of inadmissibility.

INA Section 212(a)(6)(C) of the Act provides, in pertinent part:

(i) Any alien who, byfraud or willfully misrepresenting a material fact ,seeks toprocure (or has sought to procure or has procured)a visa, otherdocumentation, or admission into the United States or other benefit providedunder this Act isinadmissible .

The Attorney General (now the Secretary of Homeland Security (Secretary))may, in the discretion of the Attorney General (Secretary), waive theapplication of clause (i) of subsection (a)(6)(C) in the case of an alien who isthespouse, son or daughter of a United States citizen or of an alien lawfullyadmitted for permanent residence , if it is established to the satisfaction ofthe Attorney General (Secretary) that the refusal of admission to the UnitedStates of such immigrant alien would result inextreme hardship to thecitizen or lawfully resident spouse or parent of such an alien .

A waiver of inadmissibility undersection 212(i) of the Act is dependent on a showing that the bar toadmission imposesextreme hardship on aqualifying relative , which includes the U.S. citizen orlawfully resident spouse or parent of the applicant. If extreme hardship to a qualifying relative is established, the applicant isstatutorily eligible for a waiver, and USCIS then assesses whether afavorable exercise of discretion is warranted. SeeMatter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996) .

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but“necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10I&N Dec. 448, 451 (BIA 1964). In Matter of Cervantes-Gonzalez, the Board provided a list offactors it deemed relevant in determining whether an alien has established extreme hardship to aqualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawfulpermanent resident or United States citizen spouse or parent in this country; the qualifying relative’sfamily ties outside the United States; the conditions in the country or countries to which thequalifying relative would relocate and the extent of the qualifying relative’s ties in such countries;the financial impact of departure from this country; and significant conditions of health, particularlywhen tied to an unavailability of suitable medical care in the country to which the qualifying relativewould relocate. Id. The Board added that not all of the foregoing factors need be analyzed in anygiven case and emphasized that the list of factors was not exclusive. Id . at 566.

The Board has also held that the common or typical results of removal and inadmissibility do notconstitute extreme hardship, and has listed certain individual hardship factors considered commonrather than extreme. These factors include: economic disadvantage, loss of current employment,inability to maintain one’s present standard of living, inability to pursue a chosen profession,separation from family members, severing community ties, cultural readjustment after living in theUnited States for many years, cultural adjustment of qualifying relatives who have never livedoutside the United States, inferior economic and educational opportunities in the foreign country, orinferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec.880, 883 (BIA 1994);Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, theBoard has made it clear that “(r)elevant factors, though not extreme in themselves, must beconsidered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 21I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882). The adjudicator “mustconsider the entire range of factors concerning hardship in their totality and determine whether thecombination of hardships takes the case beyond those hardships ordinarily associated withdeportation.” Id.

The actual hardship associated with an abstract hardship factor such as family separation, economicdisadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the uniquecircumstances of each case, as does the cumulative hardship a qualifying relative experiences as aresult of aggregated individual hardships. See, e.g.,, 23I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch regarding hardship faced by qualifyingrelatives on the basis of variations in the length of residence in the United States and the ability tospeak the language of the country to which they would relocate).

For example, though familyseparation has been found to be a common result of inadmissibility or removal, separation fromfamily living in the United States can also be the most important single hardship factor inconsidering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998)(quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due toconflicting evidence in the record and because applicant and spouse had been voluntarily separatedfrom one another for 28 years).

Therefore, the AAO considers the totality of the circumstances indetermining whether denial of admission would result in extreme hardship to a qualifying relative .

The favorable factors we highlighted in this I-601 Waiver to obtain approval of the fraud/misrepresentation inadmissibility include the following:

• the U.S. citizen spouse was a member of the U.S. Armed Forces who was honorably discharged after having been awarded multiple medals and commendations
• the U.S. citizen spouse has major medical service-related disabilities and is considered 90% disabled by the Veteran’s Administration.
• The U.S. citizen spouse suffers from orthopedic ailments that limit her mobility and physical functioning and has been diagnosed with Post-Traumatic Stress Disorder.
• the U.S. citizen spouse is the primary care-taker of her elderly father who is a retired U.S. law enforcement officer and suffers from a variety of ailments.
• the foreign spouse has played a critical role in caring for the U.S. citizen spouse’s elderly and infirm father for many years
• the U.S. citizen spouse has been deteriorating steadily due to her myriad of ailments and likely to experience several financial hardship due to her inability to work

Due to our efforts on behalf of this family including a Writ of Mandamus lawsuit filed against USCIS in federal court, the I-601 waiver for the inadmissibility of fraud/misrepresentation was approved; the inadmissibility for conviction of crimes involving moral turpitude was removed; and this family can soon reside together in the United States.

Our office received approval of both the I-601 Waiver (Application for Waiver of Grounds of Inadmissibility) and I-212 Waiver (Application for Permission to Reapply for Admission) for the Mexican spouse of a U.S. citizen husband, both of whom presently reside outside the United States .

Note: It is important to keep in mind that under current guidelines for the submission of I-601 or combined I-601 and I-212 waiver applications, immigrant visa applicants must first be denied for an immigrant visa by the consular officer at the U.S. embassy or consulate abroad, before they are eligible to submit their I-601 or combined I-601 and I-212 waiver packages.

For practical purposes, when the I-601 “Extreme Hardship” waiver is filed together with the I-212 Waiver, preparing a winning I-601 waiver application (by demonstrating extreme hardship to the qualifying relative and presenting a situation that warrants favorable discretion by the adjudicating officer) allows the applicant to also meet the standard for approval of the I-212 waiver.

In other words, if your I-601 waiver is approved, then the I-212 waiver will generally be approved as well.

Our client was subject to the 5 year “expedited removal” ban due to being removed from the United States during her most recent attempted entry into the United States on a valid B-1/B-2 visa. During this incident, she was also charged with a life-time ban for fraud/misrepresentation under INA Section 212(a)(6)(C)(i) .

Section 212(a)(9)(A)(i) and (ii) of the Immigration and National Act , as added by IIRAIRA Section 301, provides that foreign nationals who have been ordered removed may not be readmitted to the United States until they have stayed outside the U.S. for a specified period of time:

• 5 years for individuals removed through summary exclusion or through removal proceedings initiated upon the person’s arrival in the U.S.;
• 10 years for those otherwise ordered removed after a deportation hearing or whodeparted the United States while an order of removal was outstanding ; and
• 20 years for a second or subsequent removal .

The I-212 waiver allows foreign nationals who wish to return to the U.S. prior to meeting the required amount of time outside the U.S. to file an application for permission to reapply pursuant to INA Section 212(a)(A)((iii).

In Matter of Tin , 14 I & N 371 (1973), and Matter of Lee , 17 I & N Dec. 275 (1978), the Board of Immigration Appeals established the standards to be considered in adjudicating applications for permission to reapply.

In Matter of Tin , the BIA stated that in determining whether consent to reapply for admission should be granted, all pertinent circumstances relating to the application should be considered including: 1. the basis for deportation; 2. recency of deportation; 3. applicant’s length of residence in the United States; 4. the applicant’s good moral character; 5. the applicant’s respect for law and order; 6. evidence of reformation and rehabilitation; 7. The applicant’s family responsibilities; 8. Any inadmissibility to the United States under other sections of law; 9. hardship involving the applicant and others; 10. the need for the applicant’s services in the United States; and 11. whether the applicant has an approved immigrant or non-immigrant visa petition.

In Matter of Lee , the BIA stated that INA 212(a)(9)(A)(iii) was intended to be remedial rather than punitive, explaining that the factor of “recency of deportation” can only be considered when there is a finding of poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience.

INA Section 212(a)(6)(C) of the Act provides, in pertinent part:

(i) Any alien who, by fraud or willfully misrepresenting a material fact ,seeks to procure (or has sought to procure or has procured) a visa, otherdocumentation, or admission into the United States or other benefit providedunder this Act is inadmissible .

The Attorney General (now the Secretary of Homeland Security (Secretary))may, in the discretion of the Attorney General (Secretary), waive theapplication of clause (i) of subsection (a)(6)(C) in the case of an alien who isthe spouse, son or daughter of a United States citizen or of an alien lawfullyadmitted for permanent residence , if it is established to the satisfaction ofthe Attorney General (Secretary) that the refusal of admission to the UnitedStates of such immigrant alien would result in extreme hardship to thecitizen or lawfully resident spouse or parent of such an alien .

A waiver of inadmissibility under section 212(i) of the Act is dependent on a showing that the bar toadmission imposes extreme hardship on a qualifying relative , which includes the U.S. citizen orlawfully resident spouse or parent of the applicant. If extreme hardship to a qualifying relative is established, the applicant isstatutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996) .

”Extreme hardship” has a special meaning under U.S. immigration law. The factors considered relevant in determining extreme hardship include:

• Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.
• Financial considerations:future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children; cost of caring for family members (i.e., elderly and infirm parents).
• Education: loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time in grade; availability of special requirements, such as training programs or internships in specific fields.
• Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
• Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
• Any other informationthat explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

Spouses must demonstrate that their relationship will suffermore than the normal hardship orfinancial inconveniencecaused by family separation.

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but“necessarily depends upon the facts and circumstances peculiar to each case.”Matter of Hwang , 10I&N Dec. 448, 451 (BIA 1964). InMatter of Cervantes-Gonzalez , the Board provided a list offactors it deemed relevant in determining whether an alien has established extreme hardship to aqualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawfulpermanent resident or United States citizen spouse or parent in this country; the qualifying relative’sfamily ties outside the United States; the conditions in the country or countries to which thequalifying relative would relocate and the extent of the qualifying relative’s ties in such countries;the financial impact of departure from this country; and significant conditions of health, particularlywhen tied to an unavailability of suitable medical care in the country to which the qualifying relativewould relocate. Id. The Board added that not all of the foregoing factors need be analyzed in anygiven case and emphasized that the list of factors was not exclusive. Id . at 566.

The Board has also held that the common or typical results of removal and inadmissibility do notconstitute extreme hardship, and has listed certain individual hardship factors considered commonrather than extreme. These factors include: economic disadvantage, loss of current employment,inability to maintain one’s present standard of living, inability to pursue a chosen profession,separation from family members, severing community ties, cultural readjustment after living in theUnited States for many years, cultural adjustment of qualifying relatives who have never livedoutside the United States, inferior economic and educational opportunities in the foreign country, orinferior medical facilities in the foreign country. See generallyMatter of Cervantes-Gonzalez , 22I&N Dec. at 568; Matter of Pilch , 21 I&N Dec. 627, 632-33 (BIA 1996);Matter of Ige , 20 I&N Dec.880, 883 (BIA 1994);Matter of Ngai , 19 I&N Dec. 245, 246-47 (Comm’r 1984);Matter of Kim , 15I&N Dec. 88, 89-90 (BIA 1974);Matter of Shaughnessy , 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, theBoard has made it clear that “(r)elevant factors, though not extreme in themselves, must beconsidered in the aggregate in determining whether extreme hardship exists.”Matter of O-J-O- , 21I&N Dec. 381, 383 (BIA 1996) (quotingMatter of Ige , 20 I&N Dec. at 882). The adjudicator “mustconsider the entire range of factors concerning hardship in their totality and determine whether thecombination of hardships takes the case beyond those hardships ordinarily associated withdeportation.” Id.

The actual hardship associated with an abstract hardship factor such as family separation, economicdisadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the uniquecircumstances of each case, as does the cumulative hardship a qualifying relative experiences as aresult of aggregated individual hardships. See, e.g.,Matter of Bing Chih Kao and Mei Tsui Lin , 23I&N Dec. 45, 51 (BIA 2001) (distinguishingMatter of Pilch regarding hardship faced by qualifyingrelatives on the basis of variations in the length of residence in the United States and the ability tospeak the language of the country to which they would relocate).

For example, though familyseparation has been found to be a common result of inadmissibility or removal, separation fromfamily living in the United States can also be the most important single hardship factor inconsidering hardship in the aggregate.Salcido-Salcido v. INS , 138 F.3d 1292, 1293 (9th Cir. 1998)(quotingContreras-Buenfil v. INS , 712 F.2d 401, 403 (9th Cir. 1983)); but seeMatter of Ngai , 19I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due toconflicting evidence in the record and because applicant and spouse had been voluntarily separatedfrom one another for 28 years).

Therefore, the AAO considersthe totality of the circumstances indetermining whether denial of admission would result in extreme hardship to a qualifying relative .

We prepared a detailed and comprehensive waiver package requesting approval of our client’s I-601 and I-212 waiver applications , including a 36 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship ,” together with a collection of 22 different exhibits to prove the essential elements of our case.

This was a particularly challenging case since both the U.S. citizen and foreign spouse presently reside in the country of Mexico. We therefore made sure to elaborate upon on the extreme hardships being presently suffered by the U.S. citizen spouse while living outside the United States; how these hardships are being presently exacerbated and continue to worsen due to his continued residence outside of the United States; and alternatively, how re-locating back to the United States without his spouse would also trigger extreme hardships that could jeopardize his psychological and physical health.

Relevant factors in this case included:

• The U.S. citizen spouse suffers from Generalized Anxiety Disorder and Persistent Depressive “Dysthymic” Disorder, with mental health issues including addiction that date back to childhood and have required psychotherapeutic treatment and medication.
• The U.S. citizen spouse attempted to reside in the United States while visiting his foreign spouse (who resides in Mexico) in the past, but the separation and stress proved psychologically devastating for him, and directly contributed to his relapse into addiction
• The U.S. citizen spouse presently resides in Mexico with his foreign spouse but still maintains his U.S.-based employment, leading to unreasonably long commute times every single day, causing deterioration of his fragile psychological and emotional state
• Re-location to Mexico has cut off the U.S. citizen spouse from his close family members, and prevents him from providing care and support for his seriously ailing father and grandfather. This is leading to psychiatric distress over being unavailable to provide the care and support his family members need, to whom he is very close.

Due to our efforts, our client was approved for both the I-212 waiver and I-601 waiver after submission to the USCIS. This family can now lawfully reside together inside the United States.

We recently received approval for a 212(d)(3) non-immigrant waiver prepared on behalf of a South Korean client who was subject to a life-time bar from entering the United States due to being charged with fraud/misrepresentationpursuant to INA Section 212(a)(6)(C)(i) and multiple convictions of Crimes Involving Moral Turpitude under INA Section 212(a)(2)(A)(i).

Our client previously attended middle school, high school, and university in the United States before returning to his native country of South Korea. He recently attempted to re-enter the United States as a temporary visitor to visit his family members and long-time friends, as well as pursue an entrepreneurial venture in partnership with a U.S.-based company.

He was denied entry due to being charged with fraud/misrepresentationunder INA Section 212(a)(6)(C)(i) and multiple convictions of Crimes Involving Moral Turpitude under INA Section 212(a)(2)(A)(i). He subsequently contacted my office for assistance in obtaining a waiver of both INA Section 212(a)(6)(C)(i) and 212(a)(2)(A)(i) , as well as approval of a B-1/B-2 visa to temporarily visit the U.S. in the future.

We prepared a comprehensive 212(d)(3) non-immigrant waiverin the form of a fourteen-page legal brief discussing the three legal factors set forth byMatter of Hranka, 16 I&N Dec. 491 (BIA 1978) . We also submitted twelve separate exhibits supporting all of the factors set forth in our memorandum including: numerous affidavits; financial documentation; police reports and court records; military service records; business presentations and documentation; along with other vital evidence we have found necessary to secure approval of the 212(d)(3) waiver.

In the case,Matter of Hranka , 16 I&N Dec. 491 (BIA 1978) , the Board of Immigration Appeals reversed a district director’s denial of a waiver application filed by a Canadian woman who had been deported for engaging in prostitution and admitted to previous heroin use. She filed her application only two years after having been deported. She requested entry to visit relatives and engage in various tourist activities.

In overturning the district director’s decision to deny the application, the BIA accepted as proof of rehabilitation letters from the applicant’s mother, and the principal of the high school the applicant had attended, who is a psychologist.It held that the applicant’s reasons for entering the United States need not be compelling . The BIA articulated three criteria for granting a waiver under INA 212(d)(3)

1. The risks of harm in admitting the applicant;

2. The seriousness of the acts that caused the inadmissibility; and

3. The importance of the applicant’s reason for seeking entry.

Both Department of State and the Foreign Affairs Manual specify thatany nonimmigrant may request a waiver as long as his or her presence would not be detrimental to the United States . They provide that“while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” See 22 CFR 40.301 Foreign Affairs Manual (FAM) 40.301 N3. Furthermore, the Admissibility Review Office has confirmed that it will follow and adhere toMatter of Hranka in adjudicating requests for INA 212(d)(3) waivers.

In our client’s case, we addressed each of the factors laid out byMatter of Hranka emphasizing the importance of our client’s reason for entering the U.S.: namely, the vital importance of allowing a prior student of the United States educational system to re-visit the U.S. and visit his long-time friends; allowing our client to visit his U.S. citizen relatives who he has not seen for over 7+ years; and to facilitate the growth of the U.S. economy and promote international trade by allowing our client to meet with a U.S. company that he has entered into a contractual business agreement with.

We emphasized the non-existent risk of our clientoverstaying or violating the terms of a B-1/B-2 visa, given his ownership and operation of a South Korean company that requires his day-to-day managerial and operational presence; his prior lawful presence in the United States as a foreign student on a valid F-1 visa; our client’s intimate support and long-term commitment to his parents, who rely upon our client for their overall care and payment of household expenses; and our client’s legitimate business need to meet with a U.S. company, with whom he has entered into a contractual agreement.

Based upon these factors, our client was first recommended for the 212(d)(3) waiver by the interviewing consular officer at the U.S. embassy; then later approved for the 212(d)(3) non-immigrant waiver by the Admissibility Review Office in Washington D.C.; and finally, for the B-1/B-2 Visitor Visa.

These types of cases are difficult to get approved due to the tendency of US consular officers to attribute “immigrant intent” to non-immigrant visa applicants and consequently, refuse recommendation of the 212(d)(3) waiver. This was especially so in this case because our client had multiple grounds of inadmissibility which he was subject to.

Due to our extensive preparation of the waiver and lobbying undertaken to ensure its adequate consideration and review by the U.S. consulate, our client is now able to enter the United States, visit his family members and long-time friends, and further the success of his entrepreneurial venture.

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a client who was subject to a lifetime ban from being admitted to the United States pursuant to INA 212(a)(2)(A)(i)(I).

Our client was charged and convicted of conduct which occurred between 1995 and 1997, for which offense he was fined over $10,000 USD and given a sentence of 31 months. These convictions triggered the lifetime inadmissibility bar pursuant to INA 212(a)(2)(A)(i)(I) “Crimes involving moral turpitude.” After being discharged from prison, he was removed from the United States and returned to his home country of Israel.

The waiver applicant’s U.S. citizen daughter contacted me after her father was denied admission to the U.S. following his immigrant visa interview at the U.S. embassy in Israel. We initiated work on this case after a detailed consultation by first sending the clients our Waiver Worksheets. Our Waiver Worksheets contain a comprehensive list of questions for our clients to answer along with a detailed checklist of supporting documents to gather – all for the purpose of eliciting every piece of information that will allow us to prepare a winning immigration waiver package on behalf of our clients.

A thoroughly researched and documented waiver memorandum and package was subsequently prepared by our office based on the fact that more than 15 years have passed since the applicant was convicted of criminal offense in the United States; the clear evidence that his admission would not be contrary to the national welfare, safety or security of the United States; and that he has been fully rehabilitated.

Legal Requirements of the §212(h) Waiver

Section 212(h) of the Immigration and Nationality Act provides a discretionary waiver for the following criminal grounds of inadmissibility:

• Crimes involving moral turpitude(subparagraph 212(a)(2)(A)(I))
• Multiple criminal convictions(212(a)(2)(B))
• Prostitution and commercial vice(212(a)(2)(D))
• Certain aliens who have asserted immunity from prosecution(212(a)(2)(E))
• An offense of simple possession of 30 grams or less of marijuana(212(a)(2)(A)(i)(II))

INA 212(h)(1)(A) provides that certain grounds of inadmissibility undersection 212(a)(2)(A)(i)(I)-(II), (B), and (E)of the Act may be waived in the case of an alien who demonstrates to the satisfaction of the Attorney General that:

• the activities for which she is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of status;
• the admission would not be contrary to the national welfare, safety, or security of the U.S.; and
• the alien has been rehabilitated;

INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who:

• has a parent, spouse, son, or daughter who is a U.S. citizen or lawful permanent resident of the UnitedStates; and
• the parent, spouse, son, or daughter would suffer “extreme hardship” on account of the alien’s ineligibility toimmigrate

Waiver applicants must also show that their application should be granted as a matter of discretion, with the favorable factorsoutweighing the unfavorable factors in his or her case.

In support of my client’s I-601 waiver application, I prepared a comprehensive legal brief going over how the facts and circumstances of his situation met the legal standards of both INA 212(h)(1)(A) and INA 212(h)(1)(B), including citations of existing case law favorable to my client’s case. In other words, we went beyond what was required by presenting both legal arguments and documentary evidence to demonstrate eligibility for the I-601 waiver under two separate provisions of the Immigration & Nationality Act.

I showed that my client is rehabilitated and his admission not contrary to the national welfare, safety, or security of the U.S., based upon his long-history as a successful small business owner; his charitable acts including regularly donating food to local religious-educational institutions; as well as his selfless dedication to the care and education of his U.S. citizen children. I argued that even while in prison serving his sentence, he took advantage of the educational opportunities afforded to him to earn his high school equivalency; completed a custodial skills training program; and obtained early release from prison for good behavior.

I presented in-depth evidence that he committed himself to being an ethical, law-abiding, and respected member of his community after his release from prison. His impeccable conduct for over 15+ years as well as a myriad of affidavits by friends and family proved that our client posed absolutely no risk to the safety or welfare of the U.S., and in fact, would substantially contribute to the U.S. if admitted as a permanent resident.

It is often important in waiver applications to demonstrate (when possible) an important turning point in an applicant’s life, which provides a marker that the USCIS officer can point to and remember has having effected a fundamental change in the applicant’s outlook and conduct.

We also discussed how the unique circumstances and dynamics of this family, and being unable to lawfully reside in the U.S., was presently causing extreme psychological, emotional, medical, and financial hardship to multiple U.S. citizen qualifying relatives. We presented arguments showing how these extreme hardship factors would worsen if our client is not admitted into the United States.

An extensive collection of fifteen separate legal exhibits also provided a variety of evidence in support of our client’s good moral character and rehabilitation, as well as a finding of extreme hardship that his qualifying relatives would suffer in the event his I-601 waiver was denied.

As a result of our efforts, our client was approved for the 601 waiver and will be receiving his lawful permanent residence to join his family in the United States.

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for the foreign fiancé of a U.S. citizen who is subject to a life-time bar from being admitted to the United States for conviction of a crime involving moral turpitude under INA Section212(a)(2)(A)(i)(I).

Our office was contacted by our clients after the foreign fiancé attended his consular interview; was denied and deemed inadmissible for not disclosing a previously expunged conviction; and given a “Foreign Service of the United States of America Refusal Worksheet.” This refusal worksheet will typically notify the applicant of the specific inadmissibility (under the Immigration & Nationality Act) that the applicant is subject to, and whether the applicant is eligible to apply for a waiver or not.

Section 212(a)(2)(A) of the Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admitscommitting acts which constitute the essential elements of-

(I) acrime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . .is inadmissible .

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age,and the crime was committed (and the alien was released from anyconfinement to a prison or correctional institution imposed for the crime)more than 5 years before the date of the application for a visa or otherdocumentation and the date of application for admission to the UnitedStates, or

(II) the maximum penalty possible for the crime of which the alien wasconvicted (or which the alien admits having committed or of which theacts that the alien admits having committed constituted the essentialelements) did not exceed imprisonment for one year and, if the alien wasconvicted of such crime, the alien was not sentenced to a term ofimprisonment in excess of 6 months (regardless of the extent to which thesentence was ultimately executed).

The Board of Immigration Appeals (BIA) held inMatter of Perez-Contreras , 20 I&N Dec. 615, 617-18 (BIA 1992), that:

(M)oral turpitude is a nebulous concept, which refers generally to conduct thatshocks the public conscience as being inherently base, vile, or depraved, contraryto the rules of morality and the duties owed between man and man, either one’sfellow man or society in general.. ..In determining whether a crime involves moral turpitude, we consider whether theact is accompanied by a vicious motive or corrupt mind. Where knowing orintentional conduct is an element of an offense, we have found moral turpitude tobe present. However, where the required mens rea may not be determined fromthe statute, moral turpitude does not inhere.

Section 212(h) of the Act provides, in pertinent part, that:

(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E).-TheAttorney General (now the Secretary of Homeland Security,“Secretary”) may, in (her) discretion, waive the application ofsubparagraphs (A)(i)(I) … of subsection (a)(2) if-

(B) in the case of,an immigrant who is thespouse, parent, son,or daughter of a citizen of the United States or an alien lawfullyadmitted for permanent residence if it established to thesatisfaction of the (Secretary) that the alien’s denial ofadmission would result inextreme hardship to the United Statescitizen or lawfully resident spouse, parent, son, or daughter ofsuch alien.

(2) the (Secretary), in (her)discretion , and pursuant to such terms,conditions and procedures as (she) may by regulations prescribe, hasconsented to the alien’s applying or reapplying for a visa, foradmission to the United States, or adjustment of status .

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but“necessarily depends upon the facts and circumstances peculiar to each case.”Matter of Hwang , 10I&N Dec. 448, 451 (BIA 1964). InMatter of Cervantes-Gonzalez , the Board provided a list offactors it deemed relevant in determining whether an alien has established extreme hardship to aqualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawfulpermanent resident or United States citizen spouse or parent in this country; the qualifying relative’sfamily ties outside the United States; the conditions in the country or countries to which thequalifying relative would relocate and the extent of the qualifying relative’s ties in such countries;the financial impact of departure from this country; and significant conditions of health, particularlywhen tied to an unavailability of suitable medical care in the country to which the qualifying relativewould relocate. Id. The Board added that not all of the foregoing factors need be analyzed in anygiven case and emphasized that the list of factors was not exclusive. Id . at 566.

The Board has also held that the common or typical results of removal and inadmissibility do notconstitute extreme hardship, and has listed certain individual hardship factors considered commonrather than extreme. These factors include: economic disadvantage, loss of current employment,inability to maintain one’s present standard of living, inability to pursue a chosen profession,separation from family members, severing community ties, cultural readjustment after living in theUnited States for many years, cultural adjustment of qualifying relatives who have never livedoutside the United States, inferior economic and educational opportunities in the foreign country, orinferior medical facilities in the foreign country. See generallyMatter of Cervantes-Gonzalez , 22I&N Dec. at 568;Matter of Pilch , 21 I&N Dec. 627, 632-33 (BIA 1996);Matter of Ige , 20 I&N Dec.880, 883 (BIA 1994);Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984);Matter of Kim , 15I&N Dec. 88, 89-90 (BIA 1974);Matter of Shaughnessy , 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, theBoard has made it clear that “(r)elevant factors, though not extreme in themselves, must beconsidered in the aggregate in determining whether extreme hardship exists.”Matter of 0-J-0- , 21I&N Dec. 381, 383 (BIA 1996) (quotingMatter of Ige , 20 I&N Dec. at 882). The adjudicator “mustconsider the entire range of factors concerning hardship in their totality and determine whether thecombination of hardships takes the case beyond those hardships ordinarily associated withdeportation.” Id.

The actual hardship associated with an abstract hardship factor such as family separation, economicdisadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the uniquecircumstances of each case, as does the cumulative hardship a qualifying relative experiences as aresult of aggregated individual hardships. See, e.g.,, 23I&N Dec. 45, 51 (BIA 2001) (distinguishingMatter of Pilchregarding hardship faced by qualifyingrelatives on the basis of variations in the length of residence in the United States and the ability tospeak the language of the country to which they would relocate).

For example, though familyseparation has been found to be a common result of inadmissibility or removal, separation fromfamily living in the United States can also be the most important single hardship factor inconsidering hardship in the aggregate.Salcido-Salcido v. INS , 138 F.3d 1292, 1293 (9th Cir. 1998)(quotingContreras-Buenfil v. INS , 712 F.2d 401, 403 (9th Cir. 1983)); but seeMatter of Ngai , 19I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due toconflicting evidence in the record and because applicant and spouse had been voluntarily separatedfrom one another for 28 years).

Therefore, the AAO considersthe totality of the circumstances indetermining whether denial of admission would result in extreme hardship to a qualifying relative .

Immediately after this case was opened, we initiated our comprehensive immigrant waiver preparation process that has allowed us to prepare winning I-601, I-601A, I-212, and 212(d)(3) waiver applications for the past 17+ years .

We provide our clients with a comprehensive waiver worksheet containinga thorough array of questions to answer about their lives. This allows us to “brainstorm” every relevant factor (such as medical, physical, psychological, financial, legal, or other hardships, along with any other persuasive argument)that may apply. We then analyze each factor and decide upon the most effective way to present it to the USCIS in our waiver application.

Our waiver worksheet also contains along checklist of supporting documents to gather and present based upon our experience with successful waiver applications submitted during the past 17+ years.

Overall, our waiver preparation process is constantly improved upon since we regularlyprepare and submit winning immigrant waiver applications for clients who come from countries throughout the world. We are proud to receive multiple approvals on I-601, I-601A, I-212, and 212(d)(3) waiver applications filed on behalf of our clients every single month.

The essential factors we highlighted in our 31 page legal memorandum (including 19 separate legal exhibits to prove every substantial element of our I-601 waiver case) include the following:

• The U.S. citizen fiancée lives near her aging U.S. citizen parents and assists her father as he copes with a multitude of medical conditions. In addition to caring for her father, the U.S. citizen fiancée also struggles to manage her own health as she suffers from diabetes and mitral valve prolapse, and battles depression and anxiety.
• The U.S. citizen fiancée harbors the emotional scars of a traumatic early life, and has been diagnosed with Generalized Anxiety Disorder and Persistent Depressive Disorder.
• The U.S. citizen fiancée’s mother manages the the condition of diabetes and arthritis.
• The U.S. citizen fiancée feels tremendous responsibility to care for her parents and continue to be physically present for them, especially as their health further deteriorates. She suffers immense anxiety at the possibility of re-locating abroad and being separated from her ailing parents, should the I-601 waiver application be denied
• The U.S. citizen fiancée maintains employment, but she has accrued substantial credit card debt paying for flights to visit her foreign fiance abroad. More importantly, the stress of her fiancé’s uncertain immigration status, coupled with her psychiatric conditions, has caused her work performance to be negatively impacted and she is fearful of losing her job. The mental anguish she is facing prompted her to receive a referral to a counselor through the Employee Assistance Program at her place of employment.

In these types of cases, it is always important to present and prove the hardships of close U.S. citizen or lawful permanent relatives whose well-being are intimately tied to that of the qualifying relative; and demonstrate how all of the parties involved would be impacted by the immigration consequences of their situation.

Due to our efforts on behalf of this family, the I-601 Waiver application was approved. The K-1 foreign fiancé may now lawfully enter the United States; the couple can get married within 90 days of his entry into the U.S; and the foreign applicant may proceed with his process to Adjust Status to Lawful Permanent Residence thereafter.

Our office received approval of both the I-485 Application to Adjust Status to Permanent Residence and the I-601 Application of Waiver of Grounds of Inadmissibility for a citizen of Pakistan. Our client was subject to a life-time bar from being admitted to the United States as a lawful permanent resident due to conviction of multiple crimes involving moral turpitude under INA Section212(a)(2)(A)(i)(I).

Our client was previously granted asylum and living lawfully inside the United States when he was convictedof two misdemeanor crimes over 15 years ago and sentenced to 11 months of probation. Our office was engaged by the client to prepare and file the I-485 Application to Adjust Status package based on his marriage to a U.S. citizen spouse, as well as prepare and submit the I-601 “extreme hardship” waiver due to his inadmissibility for conviction of multiple CIMT (“Crimes Involving Moral Turpitude”).

We provided the client with a detailed letter going over the the I-485 Adjustment of Status process, including a comprehensive checklist of documents for him and his spouse to gather and return to our office. We prepared all of the required USCIS forms; verified that every piece of information required by the USCIS was answered accurately; and submitted a meticulously prepared Adjustment of Status package to the USCIS while simultaneously preparing the I-601 “extreme hardship” waiver.

I initiated our firm’scomprehensive process for preparation of powerful and effective immigration waiverapplications . I forwarded ourExtreme Hardship Worksheet to my clients, which contains questions designed to elicit extreme hardships and other persuasive factors. I also recommended the couple to aclinical psychologist well-versed in preparing psychological evaluations for immigration waivers and who offers asignificantly discounted fee for my clients (please refer to my post on the elements of apowerful psychological evaluation for I-601 waiver applications for more details).

Once we identified the most important factors of the case, we prepared acomprehensive legal brief going over how the facts and circumstances of my client’s situation met the legal standards used to define “extreme hardship.” We prepared a 31 page legal memorandum thoroughly presenting relevant case law as well as the extreme hardship and discretionary factors relevant to this case . Adetailed table of exhibits providing objective proof ofevery crucial assertion made in our waiver was also included, as it is with all of our waiver applications.

Section 212(a)(2)(A) of the Immigration & Nationality Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admitscommitting acts which constitute the essential elements of-

(I) acrime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . .is inadmissible .

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age,and the crime was committed (and the alien was released from anyconfinement to a prison or correctional institution imposed for the crime)more than 5 years before the date of the application for a visa or otherdocumentation and the date of application for admission to the UnitedStates, or

(II) the maximum penalty possible for the crime of which the alien wasconvicted (or which the alien admits having committed or of which theacts that the alien admits having committed constituted the essentialelements) did not exceed imprisonment for one year and, if the alien wasconvicted of such crime, the alien was not sentenced to a term ofimprisonment in excess of 6 months (regardless of the extent to which thesentence was ultimately executed).

The Board of Immigration Appeals (BIA) held inMatter of Perez-Contreras , 20 I&N Dec. 615, 617-18 (BIA 1992), that:

(M)oral turpitude is a nebulous concept, which refers generally to conduct thatshocks the public conscience as being inherently base, vile, or depraved, contraryto the rules of morality and the duties owed between man and man, either one’sfellow man or society in general.. ..In determining whether a crime involves moral turpitude, we consider whether theact is accompanied by a vicious motive or corrupt mind. Where knowing orintentional conduct is an element of an offense, we have found moral turpitude tobe present. However, where the required mens rea may not be determined fromthe statute, moral turpitude does not inhere.

Section 212(h) of the Act provides, in pertinent part, that:

(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E).-TheAttorney General (now the Secretary of Homeland Security,“Secretary”) may, in (her) discretion, waive the application ofsubparagraphs (A)(i)(I) … of subsection (a)(2) if-

(B) in the case of,an immigrant who is thespouse, parent, son,or daughter of a citizen of the United States or an alien lawfullyadmitted for permanent residence if it established to thesatisfaction of the (Secretary) that the alien’s denial ofadmission would result inextreme hardship to the United Statescitizen or lawfully resident spouse, parent, son, or daughter ofsuch alien.

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