p. S. Citizenship and Immigration Services

MATTER OF P-M-

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAY 12,2017

APPEAL OF TAMPA, FLORIDA FIELD OFFICE DECISION

APPLICATION: FORM 1-601, APPLICATION FOR WAIVER OF GROUNDS OF INADMISSIBILITY

The Applicant, a native of Belgium and citizen of Canada, seeks a waiver of inadmissibility for fraud or misrepresentation. See Immigration and Nationality Act (the Act) § 212(i), 8 U.S.C. § 1182(i). A foreign national seeking to be admitted to the United States as an immigrant or to adjust status to that of a lawful permanent resident must be admissible or receive a waiver of inadmissibility. U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver if refusal of admission would result in extreme hardship to a qualifying relative or qualifYing relatives.

The Director of the Tampa, Florida Field Office denied the application. The Director det~rmined that the Applicant was inadmissible for fraud or willful misrepresentation under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i). The Director then concluded ·that the Applicant had not established extreme hardship to his spouse, the only qualifying relative.

The matter is now before us on appeal. In the appeal, the Applicant submits additional evidence and claims that the Director erred in finding him inadmissible for fraud or misrepresentation and for concluding that his qualifying relative would not experience extreme hardship if the waiver is denied.

Upon de novo review, we will dismiss the appeal.

I. LAW

Section 212(a)(6)(C)(i) of the Act renders inadmissible any foreign national who, by fraud or I

willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under the Act.

Section 212(i) of the Act provides for a waiver of this inadmissibility if refusal of admission would result in extreme hardship to the United States citizen or lawful permanent resident spouse or parent of the foreign national.

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Matter of P-M-

Decades of case law have contributed to the meaning of extreme hardship. The definition of extreme hardship "is not ... fixed and inflexible, and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case." Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999) (citation omitted). Extreme hardship exists "only in cases of great actual and prospective injury." Matter of Ngai, 19 I&N Dec. 245, 246-47 (BIA 1984). An applicant must demonstrate that claimed hardship is realistic and foreseeable. !d.; see also Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968) (finding that the respondent had not demonstrated extreme hardship where there was "no showing of either present hardship or any hardship ... in the foreseeable future to the respondent's parents by reason of their alleged physical defects"). The common consequences of removal or refusal of admission, which include "economic detriment ... [,] loss of current employment, the inability to maintain one's standard of living or to pursue a chosen profession, separation from a family member, [and] cultural readjustment," are insufficient alone to constitute extreme hardship. Matter of Pilch, 21 I&N Dec. 627 (BIA 1996) (citations omitted); but see Matter of Kao and Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which the qualifying relatives would relocate). Nevertheless, all "[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists." Matter of Ige, 20 I&N Dec. 880, 882 (BIA 1994) (citations omitted). Hardship to the Applicant or others can be considered only insofar as it results in hardship to a qualifying relative. Matter of Gonzalez Recinas, 23 I&N Dec. 467, 471 (BIA 2002).

II. ANALYSIS

The issues on appeal are whether the Applicant is inadmissible for fraud or misrepresentation, and if so, whether -he has demonstrated that his spouse would experience extreme hardship if the waiver is denied and that he merits a favorable exercise of discretion.

On appeal, the Applicant submitted a letter from his former attorney and business incorporation documents. With the Form 1-601, the Applicant submitted affidavits from himself and his spouse, documents relating to his ownership of business entities, and letters of support. The entire record was reviewed and considered in rendering this decision.

We find that the Applicant is inadmissible under section 212(a)(6)(C)(i) of the Act for seeking admission as a TN nonimmigrant through fraud or misrepresentation and requires a waiver of this inadmissibility. The evidence in the record is insufficient to establish that the claimed hardships to the qualifying relative rise to the level of extreme hardship when considered both individually and cumulatively. Because there is no showing of extreme hardship, we will not address whether the Applicant merits a waiver as a matter of discretion.

A. Inadmissibility

The Director determined that the Applicant was inadrp.issible for fraud or willful misrepresentation. Specifically, in 2008, the Applicant attempted to enter the United States with a North American

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Matter of P-M-

Free Trade Agreement (NAFTA) professional nonimmigrant visa, also known as a TN visa, by claiming he intended to work for a U.S. company as a consultant when he intended to be self­employed for a company he owned.

NAFT A created special economic and trade relationships for the United States, Canada, and Mexico. The TN visa allows citizens of Canada and Mexico, as N AFT A professionals, to work in the United States in prearranged business activities for U.S. or foreign employers. Canadian citizens applying for a TN visa may establish eligibility for the TN classification at the time they seek admission to the United States by providing a letter from their prospective employer detailing the professional capacity in which they work and their educational qualifications. . The TN visa is not available to individuals who will be rendering services to an entity that they own. In addition, the regulations governing the TN visa program do not authorize the establishment of a business in the United States in which an individual will be, in substance, self-employed. See 8 CFR § 214.6.

The record reflects that on 2008, the Applicant applied for a TN visa by submitting a letter from his prospective employer and supporting documentation to officials at the U.S. Customs and Border Protection (USCBP) Preclearance. The letter stated that he would be employed as a temporary management consultant for The letter also stated that in 2005 and 2006, the Applicant worked in TN status as a management consultant for an affiliated company,

The application for TN status was initially approved, but on 2008, the Applicant was found inadmissible for fraud or misrepresentation and refused admission based upon the determination that was a fictitious business. USCBP made this finding because the company did not come up in a search of corporate records and because the business address provided was the same address used in corporate filings for several businesses owned by the Applicant, including The Director also concluded that the Applicant was inadmissible for fraud or misrepresentation for seeking TN status in 2008 based on employment with a fictitious business entity.

On appeal, the Applicant asserts that was a newly incorporated entity at the time of his application for TN status and that its recent incorporation was the reason that immigration officials could not validate its existence. The Appl~cant submits Articles of Organization for .the company, which were filed with the Florida D~partment of State on -2008, to support this claim.

In making a finding of inadmissibility under section 212(a)(6)(C)(i) of the Act, there must be evidence in the record showing that a reasonable person would find that an applicant used fraud or that he or she willfully misrepresented a material fact in an attempt to obtain a visa, other documentation, admission into the United States, or any other immigration benefit. 8 USCIS Policy Manual J.3(A)(l), https://www.uscis.gov/policymanual.

1 To maintain confidentiality, initials are used in this decision rather than the full names of the business entities. The Company was registered under the name but the letter from the company's president submitted with the application for TN status refers to the company as

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Here, the record establi~hes that the Applicant sought to procure a TN visa to work as a management consultant for The record also contains documentation related to several businesses established by the Applicant, including the previously mentioned which was incorporated in 2002 with the Applicant as the director. These businesses all have the same address as the prospective employer for the Applicant's TN visa application. The Applicant lists this same address as his residence on the waiver application and on other documentation on the record.

TN status is not available to individuals who establish businesses in the United States in which they will be, in substance', self-employed, or to individuals who will be rendering services to an entity that they own. The record indicates that the Applicant established in order to obtain a TN-visa. The articles of organization for this company were filed on the same day the Applicant applied for TN status, listing the same business address as that of , the Applicant's other business, and naming an employee of his existing business as the company's manager and agent. We conclude that the Applicant misrepresented his intention to render services to an entity that he owned, and in substance be self-employed, when he sought to procure TN status to work for the newly-organized as a management consultant. We concur with the Director's finding that the Applicant is inadmissible under section 212(a)(6)(C)(i) of the Act and requires a waiver under section 212(i) of the Act.2

B. Waiver

The Applicant must demonstrate that denial of the waiver would result in extreme hardship to his U.S. citizen spouse. The Applicant and his spouse were married in 2012. The Applicant's spouse asserts that the Applicant supports her in everything she does, including assisting her in her dream of opening a flower shop. She states that she would relocate to Canada be with the Applicant, but she fears having to leave her home, friends, and especially her parents, who relocated to Florida to be close to her. She maintains that it would also be difficult for her and the Applicant to manage their businesses and she would have to travel back and forth to fulfill her commitments. She further states that relocation to Canada could affect her health as harsh weather conditions would result in colds, sore throat, or asthma. The record does not contain any supporting documentation concerning any potential medical hardship to the Applicant's spouse upon relocation. In addition, although the record contains various documents related to companies the Applicant has registered in Florida and contracts for real estate transactions, the record does not contain any evidence of the income generated from these businesses, and there is also no evidence that the Applicant and his spouse could not continue to operate these businesses or engage in similar business enterprises in Canada.

2 In addition, in an April 2016 statement to USC IS, the Applicant stated that he started in 2001 as his first property investment business, and he is listed as the company' s director in corporate filings. This information is inconsistent with the terms of the Applicant's 2005 TN status, which he obtained to work as a management consultant for when he in fact was the owner of The Applicant may therefore also be inadmissible for material misrepresentations made when applying for TN status in 2005.

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We acknowledge that the Applicant's spouse would experience some hardship were she to relocate to Canada. However, based on the record we cannot conclude that, when considered in the aggregate, any financial, medical, or emotional hardships the Applicant's spouse would experience upon relocation to Canada would go beyond the common results of inadmissibility or removal and rise to the level of extreme hardship.

As the Applicant has not demonstrated extreme hardship to a qualifying relative we need not consider whether the Applicant warrants a waiver in the exercise of discretion.

III. CONCLUSION

The Applicant has the burden of proving eligibility for a waiver of inadmissibility. See section 291 of the Act, 8 U.S.C. § 1361. The Applicant has not met that burden. Accordingly, we dismiss the appeal.

ORDER: The appeal is dismissed.

Cite as Matter of P-M-, ID# 227535 (AAO May 12, 2017)

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