Written by Michael J. Gurfinkel, Esq.

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 In an unpublished opinion, the Administrative Appeals Office (AAO) stated that the hardship suffered by an Òapplicant's domestic partner of 17 yearsÓ could be taken into account when evaluating "extreme hardship" in connection with a fraud waiver. In that particular case, the applicant was petitioned by his US citizen mother, but his adjustment of status application was denied because of fraud (He had presented false documents indicating he was a US citizen when he tried to enter the US from Mexico in 1993). He then applied for a fraud waiver, based on the Òextreme hardshipÓ his mother would suffer if the fraud waiver was not granted. The District Office in San Francisco denied the fraud waiver, concluding that the mother (who is considered a Òqualifying relativeÓ) would not suffer "extreme hardship" if her son was sent back to his home country. The denial was appealed to the AAO in Washington, which concluded that the mother would suffer extreme hardship, and therefore "sustained" the appeal, or effectively approved the case. What was significant about the case is that aside from considering the direct hardships endured by the mother, the AAO also took into account the emotional and physical hardship that the applicant's domestic partner would suffer. (Ordinarily, when a person has committed fraud, he or she must apply for a fraud waiver, and demonstrate that a "qualifying relative" would suffer "extreme hardship" if the waiver is not granted. A Òqualifying relativeÓ includes only a parent or spouse who is a US citizen or green card holder. Children and/or domestic partners are not considered qualifying relatives). In considering the emotional and physical hardship on the domestic partner, the AAO actually looked at the hardship the applicant's mother would suffer, knowing that her son would be separated from his life Ð long partner. Thus, the hardship and depression of the domestic partner caused emotional and physical hardship on the qualifying relative: "The AAO finds it reasonable to accept that the applicant's mother views her son's relationship with his domestic partner as a marriage, and it finds it equally reasonable to expect that she would experience an emotional impact due to her son being separated from his partner". Thus, the thought of her son being separated from his domestic partner depressed the mother even more, resulting in more "extreme hardship" to her. I know that people have, in the past, made mistakes and committed fraud and now must file a fraud waiver. However, the law states that you can only take into account the extreme hardship suffered by a spouse or parent. But as you can see from this case, arguments can also be made demonstrating that your qualifying relatives would suffer additional hardship based on the sadness or depression of non-Ð qualifying relatives, such as a domestic partner or even children. In other words, the sadness and depression of non-qualifying relatives makes qualifying relatives sad and depressed, thereby adding to their extreme hardship. If you are required to file a fraud waiver and have a qualifying relative, you should seek the assistance of an attorney who can fully evaluate the qualifying relativeÕs extreme hardship, and demonstrate the full extent of that qualifying relativeÕs extreme hardship, even if it is based on the emotional trauma suffered by others.

Michael J. Gurfinkel has been an attorney for over 30 years, and is an active member of the State Bar of California and New York, as well as the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. WEBSITE: www.gurfinkel.com Follow us on Facebook.com/GurfinkelLaw and Twitter @GurfinkelLaw TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465) Four offices to serve you: LOS ANGELES ¥ SAN FRANCISCO ¥ NEW YORK ¥ PHILIPPINES (This is for informational purposes only, and reflects the firm's opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)

Written by Michael J. Gurfinkel, Esq.

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Recently, a young person came to my office, brokenhearted, because she had filed for Deferred Action for Childhood Arrivals (DACA) on her own, and had received a request for evidence (RFE) from the USCIS, asking for further documentation and proof of her eligibility. Unfortunately, she will not be able to establish her eligibility for DACA (or the accompanying work authorization), and her application will be denied. What was her downfall? She arrived in the United States on June 24, 2007, when she was only 14 years old. She's lived in the US since then, went to school, and committed no crimes. So how come her case is doomed? One of the requirements for DACA eligibility is that the person must have resided in the US continuously since June 15, 2007. However, she arrived in the US on June 24, 2007, (or nine days too late to be eligible). She has her arrival/departure record (I Ð 94), which is the little white postcard stapled in a person's passport upon arrival, which clearly shows that she arrived on June 24, 2007. Even if she tried to lie, and say that she "lost" her I-94, DHS still has a record of a person's arrival in the US. (Remember, the I-94 is a long form, and CBP tears off the lower portion of the I-94 and staples it to your passport. The longer portion is retained by CBP, and the information is entered in their database. So, even if a person lost his or her I-94, Homeland Security can still check its data base, and verify information from its own records. In another DACA case, the child had arrived in the US before June 15, 2007. The problem was that the child arrived one week after his 16th birthday. DACA requires, among other things, that the child arrived in the US before his or her 16th birthday Ð not one week after. So, this child also would not be qualified. The basic requirements for eligibility for DACA are that the applicant: 1. Was under the age of 31 as of June 15, 2012; 2. Came to the United States before reaching his or her 16th birthday; 3. Has continuously resided in the United States since June 15, 2007, up to the present time;?? 4. Was physically present in the United States on June 15, 2012, and at the time of making his or her request for consideration of deferred action with USCIS; 5. Entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012; 6. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and 7. Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety. In the above cases, the person resided in the US after the June 15, 2007 deadline or after his 16th birthday. Therefore, their applications will be denied and they will lose their $465 filing fee. If you think you (or your child) are eligible for DACA, including eligibility for work authorization, I would advise that you seek the assistance of an attorney, who can evaluate your situation and determine if you truly are eligible, and help you gather the appropriate proof and documentation and package the case, to greatly increase the chances of success. Our office has already had several DACA cases approved, and I can tell you that these young people are overjoyed at now having work authorization, driverÕs license, etc., instead of living in the shadows, as they did for all the previous years.

Michael J. Gurfinkel has been an attorney for over 30 years, and is an active member of the State Bar of California and New York, as well as the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. WEBSITE: www.gurfinkel.com Follow us on Facebook.com/GurfinkelLaw and Twitter @GurfinkelLaw TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465) Four offices to serve you: LOS ANGELES ¥ SAN FRANCISCO ¥ NEW YORK ¥ PHILIPPINES (This is for informational purposes only, and reflects the firm's opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)