The following case study is provided for informational purposes only. Millie Anne Cavanaugh, Esq. had no involvement in the handling of this case.

In September 2009, the Administrative Appeals Office (AAO) of the USCIS upheld the decision of the local immigration officer in Mexico City denying a 601 waiver due to an EWI (enter without inspection) and subsequent 5 year overstay. The waiver was filed pursuant to INA 212(i) and 212(a)(9)(B)(v). Mexico waiver cases typically involve unlawful presence or visa overstay.

Mexico Green Card Denial

The green card applicant was a Mexican national, and the wife of a US citizen.  She had entered the US without inspection (EWI) in 2000. The husband filed an I-130 spousal visa application for her and, because she had entered without inspection, the wife had to return to Mexico to attend her green card interview at the US Consulate in Ciudad de Juarez (CDJ). Due to the five years of unlawful presence, the consular officer denied her green card application under INA 212(a)(9)(B)(i)(II), but informed her that she was eligible to file a 601 waiver to overcome the 10 year inadmissibility bar.

601 Waiver

Upon filing the 601 waiver, it was forwarded to Mexico City for adjudication. This is a common practice at CDJ, as the staffing levels are often inadequate to handle the volume of 601 waivers that are submitted there.  The USCIS district director in Mexico City denied the 601 waiver, finding that the applicant had failed to prove that her husband would suffer extreme hardship if her green card application was not approved.

In order to successfully obtain a 601 waiver, an applicant must prove that a qualifying relative (i.e. her US citizen husband) would suffer an extreme hardship if he were forced to live in the US without his wive and, in the alternative, that he would suffer extreme hardship if he were forced to move to Mexico to be with her. Extreme hardship suffered by the couple’s US citizen children is not relevant to the waiver evaluation, except to the extent that the children’s hardship would affect the husband. Typical extreme hardship factors include the husband’s ties to the US and Mexico, the financial ramifications of the visa denial and any major health issues that have a direct or indirect affect on the husband.

In support of the 601 waiver, the applicant had submitted both a brief prepared by her 601 waiver attorney and a hardship letter drafted by her husband. Although the AAO declined to publish the contents of the documentary evidence, the decision does seem to indicate what evidence was NOT submitted in support of the 601 waiver. For instance, the applicant failed to show that there were no family members in the US that could care for the children in her absence or that the husband could not afford to pay for child care on his own. Further, there was no evidence of the current conditions in Mexico to support arguments regarding hardship if the family relocated there, nor was there evidence of financial dependence on the applicant such as mortgage/rent bills, utility bills, credit cards bills, etc. While there applicant argued that there would be a lack of educational or health care opportunities for the children in Mexico, she failed to explain how this would be extreme hardship for her husband.

How could a 601 Waiver Attorney help this family?

Although a waiver in Mexico for simple unlawful presence is relatively easy to obtain, as compared to a waiver for criminal history or misrepresentation, this is not to say that the 601 waiver attorney need not submit any evidence to support the extreme hardship claim. In this case, the 601 waiver attorney submitted a brief and a hardship letter. However, a complete waiver package would have included evidence of financial hardship (budget, copies of bills, paystubs,), educational issues (school records, educational evaluations) and medical problems (health records, doctors notes).  If this couple came to me after receiving this AAO denial, I would encourage them to refile the Mexico waiver case with a comprehensive evidence package that supported each one of their extreme hardship claims. Unless this applicant has a criminal history or other significant immigration violations, obtaining approval of a 601 waiver is not an impossible endeavor.