Harris Beach put its expanded immigration capabilities to work recently with a first – an appearance in Immigration Court.  Partner Jason Abrams brought 18 years of experience when he joined the firm in October 2020, but at that time the court system had resumed in only a limited capacity. 

Jason’s first hearing after the courts reopened, and the firm’s first ever, concerned a husband and father of three who has been in the U.S. for nearly 30 years.  He obtained permanent residence in 2014 through his U.S. citizen spouse, but did not reveal to Immigration that he had been ordered deported in another identity in 1996.  When he filed for U.S. citizenship in 2018, the officer on that case linked the two identities and placed him into removal proceedings to take away his green card.

This not-uncommon situation is one of the dilemmas in immigration law – true, this individual obtained permanent residence in 2014 through misrepresentation, but he has also established a life here and several people rely on him, including his ailing wife, his two daughters, and his son who just joined the military.  The law contains “waivers”, or means of qualifying to have various sins cured and benefits issued.  The waivers vary in difficulty depending on the nature of the transgression, the specific relatives to whom hardship is permitted to be established, the level of hardship required, and whether the individual is seeking permanent residence or has already obtained it.

Here, as our client was already a permanent resident, seeking to have a fraud waived, the relevant waiver is under INA 237(a)(1)(h), and its standard is the lowest in the law; rather than exceptional and extremely unusual hardship, or extreme hardship, the standard is that no hardship at all must be established!  The applicant must merely be “the spouse, parent, son, or daughter of a citizen of the United States or of [a permanent resident]”.

With no hardship to be established, why is a legal representation needed at all?  Why not show the marriage certificate and the children’s birth certificates, and be granted the waiver?  The answer is that all waivers have a discretionary analysis built in; despite being the spouse of a U.S. citizen and a parent to three U.S. citizens, our client could lose his case and be ordered removed if the judge feels that on balance his past unlawful acts outweigh the positive factors in his current situation.

At last week’s hearing, called the “Master” hearing and at which we had only a few moments to speak and to submit documents, we established our client’s baseline eligibility for the waiver, had the government agree there were no other grounds to remove his permanent residence, and submitted positive discretionary evidence to give the government a taste of the life he has created.  We look forward to the December 2022 hearing, at which we will submit further evidence, take testimony from the family, and fend off the attempts by the Department of Homeland Security to paint this Harris Beach client in any further negative light.

Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that companies are able to hire, transfer, and retain the brightest and best non-U.S. talent.