The role of an attorney in an I-212 application is to determine the reasons why the person requires the I-212, and then what is the best way to frame their application. Because I-212 applications are submitted to the embassy eventually, there is not a whole lot of case law on them. There are, of course, regulations that say why you qualify, direct you where to file, and what are some of the criteria for qualification, but it is somewhat of a subjective standard.
It is incumbent on the attorney to try and convey to the applicant and their family what are the best factors in their situation to submit for an I-212 application or how to best collect and collate the documentation and show the person is a person of good moral character and did not have an egregious immigration violation. Again, the I-212 application is at many times filed in conjunction with an extreme hardship waiver, and many of the reasons why you would need an attorney for the I-601 are also consistent with an I-212 application.
As with anything, it is within the eye of the beholder, and sometimes the way things work, the immigration officer looks at it and says, “I don’t think you have met the burden to show that you’ve overcome your prior good moral character findings,” or, that the reason for you to be in the U.S. is necessary based on the egregious violation. There is quite a bit of subjectivity to this and unfortunately they still have not really defined a lot of these criteria with absolute standards in both the extreme hardship and the I-212 applications.
Unfortunately, there are times when applications appear to be denied arbitrarily, and that is when we go on appeal. It is also where the attorney may be coming in the second time after the client has tried to do it on their own. We have seen several times where applicants have stated their case on the application that their family is going to of course suffer extreme hardship and that they are of good moral character, and they apply, and they fail. We pick up the ball from there and try to figure out what went wrong; why it went wrong; how do we fix the issues or better document the issues that the embassy used to deny the application. It is more of a reapplication process than an appeal process.
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