Murthy Success Story: Complex MTR and Waiver Results in I-485 Approval01 Oct 2010
This article shares a Murthy success story about a particularly difficult case. This individual came to the Murthy Law Firm, engaging our services after the denial of her application for adjustment of status (Form I-485, or “green card”). The denial was due to a shoplifting incident. It is vitally important for foreign nationals to understand that shoplifting is taken quite seriously by merchants and U.S. authorities, and that the immigration consequences can be dire. As explained here, our firm was able to help this individual obtain an I-485 approval by filing a motion to reopen (MTR) as well as a waiver of inadmissibility. We thank our client for allowing us to share this case with our readers. The Murthy Law Firm keeps all client information confidential. No client details are ever shared without permission.
Background: Shoplifting Can Lead to Inadmissibility
As has been explained to MurthyDotCom and MurthyBulletin readers in past articles, including Holiday Shopping: Know the Law, retail theft or shoplifting can jeopardize a foreign national’s immigration status. These types of crimes can result in removability (formerly, deportability), inadmissibility, or both. Removability relates to individuals who can be forced to leave the United States. Inadmissibility refers to those who are not allowed to enter the United States. Form I-485 applicants are regarded as applying for admission to the United States. Thus, they must meet all requirements for admissibility in order to qualify for approval.
As MurthyDotCom and MurthyBulletin readers may recall from our article, Criminal Convictions with Possible Severe Immigration Consequences (25.Jan.2008), the definition of conviction for immigration purposes is broader than it is for most other purposes. In some cases, a foreign national can lose eligibility for immigration benefits due to the commission of a crime, even without a conviction. An individual who admits to having committed a crime involving moral turpitude (CIMT), can be found to be inadmissible, and prevented from becoming a green card holder. Thus, it is vital for a foreign national to get immigration advice if s/he is ever charged with a crime.
This individual came to our firm in despair. She knew her case was denied, based upon online case information, but had not received the written denial decision from the USCIS and did not know what options were available. She had filed her I-485 as a derivative beneficiary of her husband’s case. His case had been approved earlier; thus he was a U.S. permanent resident (green card holder).
By the time the denial arrived, only a week remained in the 30-day deadline to challenge the decision. The problem stemmed from a shoplifting incident, which had occurred after the filing of the I-485. The individual had not been given proper immigration advice about her shoplifting arrest. On her previous attorney’s advice, she agreed to a first offender program which, when completed, results in the dismissal of the charge. This is often a favorable result for those who do not have immigration considerations.
Murthy Law Firm’s Multiple Strategies Help Reverse Earlier I-485 Denial
Our strategy included filing a motion to reopen (MTR) the I-485, arguing that there were certain misinterpreted facts and a misapplication of the law. We also filed a request for a waiver of inadmissibility (Form I-601). The waiver request was based on the extreme hardship that would be suffered by our client’s permanent resident spouse if she had to leave the United States.
Murthy Files Creative MTR Challenging USCIS’s Earlier Denial of I-485
The Murthy Law Firm Special Projects Department prepared and filed the MTR and the waiver within a week, in order to meet the deadline. The basis for the MTR is a bit technical. The I-485 denial was based on certain statements about the commission of a shoplifting offense contained in the agreement signed by our client in order to participate in the first offender program. The USCIS interpreted these statements as an admission to committing a CIMT. As mentioned above, an admission can be enough to make a foreign national inadmissible.
In the MTR, we established that, under the law, statements must meet certain very specific legal requirements in order to be considered an effective admission to a CIMT. We argued that these requirements were not met in this instance and, accordingly, the I-485 denial was incorrect. We also advised that our client was seeking a waiver of the purported ground of inadmissibility, based upon the extreme hardship her husband would endure if she were forced to depart the United States.
Murthy Law Firm Demonstrates Extreme Hardship Factors
In hardship cases, all possible solutions and living situations must be explored. In order to succeed, there must be hardship under any possible scenario, including the relocation of the entire family abroad. The Murthy Law Firm’s Special Projects team worked with our client to analyze the medical, financial, emotional, and educational hardships that our client’s husband and child would endure if they remained in the United States without her, as well as the hardships they would suffer if they accompanied her abroad. While the basis of the waiver was the hardship to the client’s spouse, the issues regarding the child are interconnected.
Murthy Law Firm Helped Obtain Discretionary Waiver and I-485 Approval
Waivers of this nature are highly discretionary. We demonstrated that our client was deserving of a favorable exercise of discretion. We established that the incident was an aberration in a lifetime of positive contributions. It was committed during a particularly difficult time in her life, when she was struggling with gravely ill parents, her own health concerns, and her child’s health issues. Her momentary lapse is contrasted by a lifetime of educational and career achievement, as well as contributions to the community and charitable organizations. The family had lived in the U.S. for many years, and no longer had any close ties outside this country.
The USCIS agreed with our position, and reopened the I-485. They approved the waiver and, later, approved our client’s I-485. Our deserving client is now a permanent resident.
In this instance, the USCIS approved our client’s I-485 application and preserved the unity and overall welfare of this family. It should be noted that, while we were able act very quickly in this case, we cannot accept all cases on short notice. We are delighted with the positive outcome of this complex case for our client and her family. This effort required the availability and coordination of several attorneys, as well as the complete and prompt cooperation of our clients.
We urge MurthyDotCom and MurthyBulletin readers to avoid similar missteps with violations of any criminal laws. If such an incident occurs within one’s family, it is important to remember that it may have serious immigration consequences. Therefore, it is vital to consult with a knowledgeable immigration attorney at the time of the incident to minimize any related jeopardy to legally remaining in the United States.
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