Marie
06-28-2007, 07:11 AM
Originally Posted by Laurel Scott
This is an article I'm working on for how to prepare waivers. I still consider this a draft at the moment. My assistant Lizz knows more about waivers at this point than most attorneys, so she's been working with me on the article. This article is meant to be read by other attorneys, but I thought you all might find it useful. Remember, this is a draft and I'm still working on it:
MEMO REGARDING WAIVER OF INADMISSIBILITY
I-601 Waivers and Extreme Hardship: Strategies for Writing a Convincing Narrative for an Application for Waiver of Ground of Excludability
Laurel Scott Esq. and Elizabeth Cannon
Under the Immigration and Nationality Act of 1996 are various provisions for I-601 Applications for Waiver of Ground of Excludability. This memo addresses the structure and content of a Application for Waiver of Ground of Excludability under INA § 212(a)(9)(B)(v), 212(h), and 212(i). As well this memo provides some information on the expectations of particular consular offices and adjudicators. It also provides reference to case law applicable to a variety of waivers, spanning Matter of W, 9 I&N Dec. 1 (BIA 1960) to Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). This Practice Advisory also highlights the merits of various arguments often proffered in the argument of Extreme Hardship.
Court decisions addressing the I-601 waiver may change the existing law or create new law. Counsel are advised to independently confirm whether the law in their circuit or BIA decisions have changed existing law or precedent since the date of this memo.
What is an Application for Waiver of Ground of Excludability?
An Application for Waiver of Ground of Excludability is filed by a qualifying relative in the event that an alien has been denied admission to the United States. Different sections of INA § 212 allow for the application of a waiver of excludability. Waivers must establish that a qualifying relative will suffer “extreme hardship” if the alien is not admitted. The qualifying relative can vary slightly. Some waivers require it to be established that “the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien,” in the case of INA 212(a)(9)(B)(v) or “that the alien''s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien,” in reference to INA 212(h)(1)(B). For the purposes of this advisory the Application for Waiver of Ground of Excludability will be referred to as an I-601.
HIV Waivers
While the I-601 form is also used for HIV waivers, the content of these arguments is completely different. An HIV waiver’s focus is health insurance. This advisory is not meant to provide guidance on HIV waivers.
Who adjudicates Applications for Waivers of Ground of Excludability?
I-601 waivers filed at a consulate are adjudicated by the representative of CIS at that consulate, not any consular officer. The consulate often makes a recommendation on whether to approve or deny an I-601, but it is the CIS office that makes the final decision. Typically, the Officer-in-Charge (OIC) at the CIS office abroad is the I-601 adjudicator. At some busy CIS offices, there is more than one CIS adjudicator, but all decisions are typically signed by the OIC. Typically, when there is more than one adjudicator, they will make efforts to make their decisions consistent within that CIS office, with the OIC setting the standard.
Not every country has a CIS office. To see which CIS office has jurisdiction over waivers filed in a particular country, go to the USCIS website.
For in-country filings, the immigration officer handling the adjustment of status case often makes the decision on the I-601, though sometimes a supervisor will handle the I-601.
What are applicable legal arguments for an Application for Waiver of Ground of Excludability?
All arguments for Applications for Waivers of Ground of Excludability are based on the precept that there is a qualifying relative that will suffer “extreme hardship” if the Alien’s admission is denied. Below are some examples of Extreme Hardship arguments. Here they are separated into levels, with Level 1 being the strongest arguments and Level 4 being the weakest. At some USCIS offices abroad, such as Ciudad Juarez, one Level 3 argument and a few Level 4 arguments are sufficient. At other USCIS offices, such as Manila, an approval will not be issued (in this attorney’s experience) unless there is at least one Level 1 argument presented. For most offices, it’s best to have at least one Level 2 and a few Level 3 arguments presented in the waiver. For the purpose of this advisory “Relative”, is always the qualifying relative. For the 3 and 10 years bans and for misrepresentation, the qualifying relative must be a US citizen or permanent resident spouse or parent, or a US citizen fiancé(e). For criminal grounds of inadmissibility, the qualifying relative may also be a US citizen or permanent resident child.
Level 1 arguments:
(a) Relative has a MAJOR medical condition (e.g. brain tumor, multiple sclerosis, cerebral palsy) which makes Relative unable to move abroad and for which Relative absolutely needs Alien in the US to help take care of him/her,
(b) Relative is caring for an elderly, chronically ill, or disabled relative who needs constant care and whose condition is bad enough that Relative either MUST live with the relative or Relative MUST spend at least an hour a day assisting the relative with things like hygiene or physical therapy, and this makes Relative unable to move abroad and makes him/her really need Alien in the US to help him/her care for his/her relative and manage his/her other responsibilities, or
(c) Alien''s country is in a state of war or major political upheaval (e.g. Liberia).
Level 2 arguments include:
(a) Relative is the primary caregiver for his/her child(ren) from a prior relationship and the child(ren)''s other parent will not allow the children to be taken out of the country AND the child(ren) have formed an emotional attachment to Alien
(b) Relative has a serious medical condition that makes it very difficult for Relative to move abroad and Relative needs Alien to provide help (e.g. Relative needs to have major surgery sometime in the next year, with an expected recovery time of several months),
(c) Relative is caring for a moderately disabled relative who normally can care for him/herself but occasionally has episodes in which he/she needs a lot of help from Relative and during those times Relative, in turn, needs help from Alien,
(d) a relative is unusually financially dependent on Relative (e.g. Relative''s mother has just gone through a nasty divorce with Relative''s father in which she got nothing and because she has never worked, she doesn''t qualify for social security, so Relative is supporting her in the entirety for the rest of her life),
(e) Relative has a child that he/she is about to put through college, or
(f) Alien''s country is on the verge of major political unrest (e.g. Bolivia) or negative political change (e.g. Iran) or the country is known for oppression of one sort or another (e.g. Relative is a Christian woman and Alien is from Saudi Arabia), or it is in the infant stages of post-war recovery (e.g. Afghanistan).
Level 3 arguments include:
(a) Relative is the non-custodial parent of a child from a prior relationship and has an actual relationship with that child and the child''s other parent will not allow Relative to take the child out of the country but Alien does not have a relationship with the child at this time,
(b) Relative a significant condition that makes it inconvenient to move out of the country (e.g. severe asthma and Alien spouse lives in Mexico City),
(c) Relative been diagnosed by a licensed psychologist/psychiatrist with clinical depression due to Alien''s immigration problems,
(d) Relative and Alien have young children together or Relative has full custody of Relative''s child and can bring him/her abroad and Alien''s home country has bad public health conditions and bad public education,
(e) Relative''s job requires a license in both the US and abroad and it will be very difficult to get licensed abroad (e.g. attorney, medical doctor),
(f) Relative has job skills that are very specific to the US (e.g. a tax accountant with extensive familiarity with US tax law),
(g) Alien''s country has a very bad economy (e.g. Chad),
(h) Relative has a close relative who is partially dependent on Relative financially (e.g. Relative''s mom gets social security but needs Relative''s extra $500 per month to stay in her present apartment) or physically (e.g. Relative''s mother functions well now, but her health has been declining and it is expected she will need more of Relative''s help in the near future).
Level 4 arguments include:
(a) Relative has debts they wouldn't be able to pay if they moved abroad,
(b) Alien''s country has a high unemployment rate,
(c) Alien''s country has a high crime rate,
(d) Relative has been despondent due to the situation, but hasn't sought professional help,
(e) Relative''s parents are aging.
Many clients who do their own research are advised by others on the internet, typically non-attorneys, to include a psychological self-scoring test, called Holmes-Rahe. In my opinion, this is not worth including. It is also probably not worth including the argument that the couple wants to have children in the future (but are not currently pregnant) and either the wife is getting older or the foreign country has a high infant mortality rate.
Note: whenever a waiver claims a relative is dependent on Relative either for direct care or for money, Counsel must explain why no other relative such as one of Relative''s siblings can provide the same care or support.
The reality is adjudicators are currently each creating their own guidelines using only the case law for reference. The problem is that the case law is inconsistent, in my opinion.
The case law actually says that because each case is unique, the adjudicator has broad discretion to decide what constitutes extreme hardship. Statements along these lines appear in many decisions. The statements effectively discourage USCIS from creating the kind of list I just presented. The authors feel this endows the adjudicator with far too much discretionary power, but the issue of the need for immigration reform is another topic.
How much supporting documentation is sufficient?
A waiver packet should include: forms, brief or attorney letter (10-15 pages), and supporting documents (20-50 pages). That being said, there are attorneys that have repeat success with briefs shorter than 5 pages. If it is absolutely necessary to supply more than 50 pages of supporting documents, then do so, but at some point one will experience the law of diminishing returns where there is the risk of annoying the adjudicator with too much to read, thereby outweighing any or all benefits of including a given document. The catch-22 is that the Administrative Appeals Office prefers to see more evidence than any initial CIS adjudicator and prefers for all evidence to have been submitted in the initial filing. Keep in mind that the intent is to convince the adjudicator the first time around, so aim to please the adjudicator, not the AAO. A shorter packet can receive approval if there are a few pieces of very good evidence and a very strong argument.
What constitutes sufficient evidence?
Any argument presented in the I-601 must be supported with good evidence. There should be non-personal documents, such as country reports, and personal documents such doctors’ letters and psychologist letters. For non-personal documents it’s best to cite US government sources, as the US government adjudicator will have more trouble dismissing them. Typical sources are the Consular Information Sheets, the CIA Fact sheets, and the National Institutes of Health medical encyclopedia. Use newspaper articles and NGO reports sparingly when information needed cannot be found from a US government source. Certain adjudicators have openly ‘dismissed’ this attorney’s non-US government sources in their denials, even when the reports come from reputable sources such as Amnesty International.
For personal documents, confirm all letters are signed and dated. They do not need to be notarized. Attorney-certified photocopies may be sent, but sending the original and keeping the copy is preferable. Doctors’ letters should describe the medical condition, the patient’s physical limitations (e.g. no driving), the need for assistance, the need for continued medical care, and (if applicable) the physician’s personal knowledge of the alien’s prior role in providing direct assistance to the patient. Psychologist letters should describe the condition, how the psychologist arrived at that diagnosis, the relationship between the waiver process and the condition, the likely psychological effects of waiver denial, the frequency of the patient’s visits, the medications the patient is on (if any), and the plan for future treatment. Some attorneys include the doctor’s or psychologist’s resume. This attorney rarely finds this helpful or necessary. Some lab reports or medical notes may be appropriate depending on the case.
Cases are proven with the supporting documents, not with the brief. The purpose of a brief is to make sense out of the supporting documents and place the case into legal context. Good supporting documents are paramount to getting approval.
The qualifying relative’s letter is required. This attorney usually includes it as a supporting document.
For personal documents in the form of a letter, guide the person in writing the letter, but don’t write it for him/her; it needs to be in their own words.
How much should I charge the client for this?
If you prefer to charge a flat fee as I do, assume that this will take 20-40 attorney hours for most cases and charge accordingly. A well-prepared waiver application is a major undertaking.
What can be expected from different Offices?
The greatest factor in predicting whether a given waiver will be approved is where it’s filed. This factor is more important than any hardship argument or the ground of inadmissibility. If a client is currently in the US and is trying to decide whether to attempt the I-601 process abroad counsel must consider where the I-601 is being filed in order to properly advise the client. This attorney has not worked with every CIS office overseas, but has experience with many of them. Here they have been listed from what this attorney sees as the most facile to work with and whose adjudicator’s consideration is most thorough and reasonable, with tips for approaching each office. When any new adjudicator is posted, there is the potential for a given office to change, but the change is usually minor, with an office either getting only somewhat more or less apt to dismiss conditions of hardship with the presence of a new Officer-In-Charge
Information on several CIS offices abroad:
· Ciudad Juarez – Will approve most well-prepared waiver packets with evidence. The I-601 process is an excellent option for Mexican EWI clients married to US citizens who are willing to tough out the 6+ months they will have to spend in Mexico. Do not be afraid of the I-601 process for clients that fit this profile. I recommend at least two Level 3 arguments before sending a client out of the country to attempt the I-601. Include evidence of the strength of the relationship. INA 212(a)(9)(C) and INA 212(a)(6)(C)(ii) problems are frequent for Mexicans, so be sure to evaluate a client’s immigration history carefully. There have been some concerns related to the drug history questions asked during the medical exam. Read the AILA Practice Advisory on this subject so you can prepare your clients. It takes 6-8 months for a decision. OIC responds to emails quickly.
· London –London is nearly as likely to issue an approval with a solidly supported case of hardship as Juarez. Allow around 12 weeks for a decision. Response speed to inquiries is inconsistent with some responses given quickly. The quality of the responses is inconsistent.
· Vienna – Has been having problems keeping the position filled for I-601 adjudicator. Generally it is one of the offices in Europe that is most likely to weigh all hardships and issue an approval. 3-6 months for decision when I-601 adjudicator position filled. CIS office assistant responds to emails quickly.
· Frankfurt – Fastest I-601 turnaround time outside of the US, sometimes in as little as four weeks. Possibly the most administratively efficient CIS office abroad. Generally likely to approve cases with a few Level 3 arguments, though at least one Level 2 argument is recommended. Best office to go through for ‘homeless’ Middle Eastern cases, such as Iranian cases as country conditions for Middle Eastern cases are taken seriously. Country conditions in Eastern Europe not given much weight. OIC responds to emails quickly.
· Vermont (handles Canadian cases) – Less predictable as process has recently changed, At least 6 months for decision. Serious administrative problems are common. Communications difficult.
· Rome – Unlikely to approve a case without at least one Level 2 argument. Response time to inquiries unknown. 6 months or more for a decision.
· Lima – If the couple is not married, include an explanation as to why marriage has not yet taken place. Do not attempt to argue merits of the case over the phone. Misrepresentation viewed harshly. Country conditions in South America generally not considered strong hardship. OIC responds to fax inquiries quickly, typically with a return phone call. 4-6 months for a decision.
· Athens – Traditionally this has been a very tough office to get an approval from, though it just received a new OIC. Extremely unlikely to approve case without at least one Level 2 argument, and at least one Level 1 argument preferred. Has been known to deny cases even with a Level 1 argument if the alien’s immigration history is especially complicated (e.g. multiple deportations and misrepresentations). If Counsel has the option to have the case adjudicated through another office (e.g. Iranian “homeless case”) then do so. It is advisable to not go through Athens if there is another option. Always investigate the option of having the client move to a country in Europe so that the waiver will not go through Athens. 12-14 months for a decision. CIS office assistants respond quickly to telephone inquiries.
· Manila –This attorney has never had an approval through Manila without at least one Level 1 argument. This office seems to be defining “Extreme Hardship” as strictly or more strictly than “Exceptional and Extremely Unusual Hardship”. Do not send clients out of the country if they have to go through Manila. It is not worth the risk. Keep them here and wait for the law to change. Or, see if possible, get them a visa to go to Mexico, have them live there for a year, and file the I-601 in Juarez. If the client is already abroad and does not have at least one Level 1 argument, recommend to the client and spouse that they spend their money attempting to relocate to a third country, rather than spending thousands of dollars in attorneys fees in a futile attempt to get a waiver. 6-12 months for decision. CIS office assistants respond quickly to telephone inquiries, though their responses are not always consistent or reliable. You have to get up in the middle of the night to call.
Other offices
This attorney has had cases adjudicated in Islamabad and Panama City, but not enough cases to really get a feel for what they consider hardship. Islamabad has a great deal of administrative problems and is taking over a year to adjudicate. Avoid Islamabad due to administrative problems. Panama City so far has approved one of this attorney’s very strong cases.
Can an I-601 be filed within the US?
It is not possible to file the waiver in the US if the alien entered EWI because there is an AOS problem under INA 245(a), which the I-601 will not cure. Also, if the client entered on a K visa and is not adjusting through the K visa petitioner, there is a problem under INA 245(d), which the I-601 will not cure and the alien must file abroad. But if the client doesn’t have any problems adjusting under INA 245, it may be possible to file the I-601 in the US. The adjudication of local filings seems to have no rhyme or reason. It all depends on the individual adjudications officer who reviews the case. Make the case as strong as possible.
Can Fiance(e)s file as qualifying relative?
Yes, fiancé(e)s can file an I-601. See 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).
How does one file for Deportees?
For aliens outside the US, if the alien needs to file an I-212 and an I-601, they must be filed together at the consulate. It is impossible to file the I-212 at the district office and then file the I-601 at the consulate. 8 CFR 212.2(d). The need to file an I-212 in addition to an I-601 does not mean that a waiver packet will be any different than if a client needs only the I-601. In essence it means another form needs to be completed and another fee paid. However, extreme hardship needs to be proven only once.
How does one file with Multiple Grounds of Inadmissibility?
If the client needs waivers under INA 212(a)(9)(B)(v), INA 212(h) and INA 212(i), only one I-601 form is needed and one waiver packet, and the fee paid once. An extra fee is needed only if the client has a deportation and a I-212 must be filed as well.
Other considerations
If filing at an office other than the alien’s home country, it is possible to encounter problems getting the client a visa to enter that third country. If it’s Europe, keep in mind that for EU countries, there are certain non immigrant visas that if issued by any EU country, are honored by all EU countries, even if another EU country has denied the alien a visa before. For example, one Iranian client couldn’t get a German visa to go to her interview in Frankfurt, but Greece issued her a visa that allowed her to legally travel to Frankfurt in time for the interview. Contact the US consulate of that country to make sure the client doesn’t need a visa from that country.
Most consulates will not take waiver cases for third country nationals unless the client resides in that country. The major exception is the “homeless” case where the US has no consulate in that country and no one specific consulate has been designated for nationals of that country to go to, OR the alien is stateless. If the client has a credible fear of returning to his/her home country, it is reasonable to contact many consulates to investigate which of them might take the case. Contact the consulates directly to ask, or work with the NVC when the case is at that point in the process. If Counsel has an opportunity to inquire at many consulates and the NVC assigns a consulate Counsel doesn’t want to work with, contact NVC and make a request for a specific consulate. Bear in mind that filing in Canada is not necessarily the best option due to administrative problems in Vermont. Also keep in mind that EU nationals can often live and work in another EU country fairly easily. If an EU client’s case would normally go through Rome, discuss the possibility of the client moving to England for some time so he/she will be eligible to file through London, which is faster and more lenient than Rome. Juarez typically will not take waiver cases for third country nationals unless the client has legally resided in Mexico for one year prior to the interview.
How can a case be expedited?
Every client wants his/her case expedited. Making an expedite request on every case interferes with the efficiency of any office and slows down the procedure for everyone. An attorney wants to be a zealous advocate for their client, but try not to make expedite requests unless there is a truly urgent, serious situation. Let the client know at the outset of the representation that your office will not be making an expedite request. Note, this attorney has made many non-frivolous expedite requests on I-601 cases and NONE of them has ever been successful, even when small children are involved and even when the US citizen petitioner has cancer.
If there is an unusually compelling Level 1 argument and the alien is currently present in the US, check for eligibility for Cancellation of Removal. If the alien is eligible except for the 10-year requirement, explore the possibility of requesting Deferred Action until the 10-year mark and/or until the alien may be able to benefit from CIR. If the hope is the alien will benefit from CIR, be sure to get the I-130 filed so he/she will qualify under the Family Unity amendment. It may also be necessary to explore the possibility of trying to get a promise of Expedite from both the consulate and the CIS office prior to sending the alien out of the country; this would be quite a feat, but it might be worth an attempt if there is a truly compelling Level 1 argument. Keep in mind that even if the waiver is adjudicated quickly, there may still be problems with security checks and administrative problems.
How can one file for a case involving INA 212(a)(9)(C)?
Always, always, always confirm a client won’t be found inadmissible under INA 212(a)(9)(C) prior to either sending the client out of the country or taking money to prepare a waiver. If the client is not sure whether he/she was formally deported or just refused entry, run an FBI fingerprint check. The FBI report will list all deportations, but if the alien was merely refused entry, the incident will not appear on the report. If the client does have a (9)(C) problem, file the I-130 so that he/she will qualify under the Family Unity amendment of the CIR if and when it passes. In waiting for the bill to pass before taking action the opportunity will be missed because the Family Unity amendment will only benefit those who had the I-130 filed prior to the date the law passes. While filing an I-485 will lead to an NTA if and when the I-485 is denied, filing just the I-130 will rarely lead to an NTA for a non-criminal alien. The potential benefits of filing the I-130 if CIR passes outweigh the risks of getting an NTA. Other attorneys may disagree.
How to approach Rehabilitation, Moral Character and Apologies
A criminal waiver can be approved on rehabilitation alone in some cases. Look at INA 212(h).
Other than the criminal waivers, I-601 waivers should focus on the extreme hardship to the relative and not the moral character of the alien. However, depending on the facts of the case, it is sometimes beneficial include character letters. When doing so, be conscious of the size of the packet and how much the adjudicator is being asked to read.
If the applicant clearly and intentionally violated the law, apologizing for the violation may be a good idea. If the alien is contesting the ground of inadmissibility or thinks he/she didn’t do anything wrong (e.g. a ‘notario’ committed the fraud without alien’s knowledge), DO NOT have the alien apologize. An apology is a confession. In any argument of minimal responsibility for the ground of inadmissibility, apologizing destroys that argument.
Contesting Ground of Inadmissibility
If contesting the ground of inadmissibility, but with a deadline for I-601 submission and/or the belief the challenge to the finding will be unsuccessful, go forward in filing the I-601, stating in the opening paragraph that there is no concession of inadmissibility. Include the argument against the finding in the brief. This may not win over the consulate, but may win over the CIS officer. CIS can’t over-rule the consulate’s decision on inadmissibility, but if the CIS adjudicator agrees with the argument’s reasoning, he/she will take that into consideration when deciding the waiver.
There’s nothing in the law that prevents the filing of a Motion to Reconsider, or an Advisory Opinion request regarding the finding of inadmissibility, at the same time that the I-601 is filed.
Inquiries
Contact the various offices via phone or email for administrative concerns only. Don’t attempt to argue the merits of the case over the phone. Discourage the client from attempting to contact the CIS him/herself. Many of the offices don’t appreciate such phone calls, even though the consulates typically don’t mind. As well, a good relationship with all offices only helps the chances of an adjudication happening quickly and to the clients benefit. Processing times are subject to change without notice.
Keep the number of inquiries to a minimum as they tend to slow down the progress of work at the CIS office. If you are concerned about making sure the waiver has been received, contact USCIS no earlier than thirty days after filing. If filing any addendums directly with the CIS office following their receipt of the waiver packet, you may inquire within a few days of when it is expected they received the addendum to confirm its receipt and that it has made it to the correct file. Avoid making another inquiry until the case is outside the normal processing time. Following that, make subsequent inquiries no earlier than 30 days after the most recent prior inquiry. Discourage the client from making inquiries on his/her own without express approval from Counsel.
Deadlines
An I-601 cannot be filed abroad prior to the immigrant visa or K visa interview. For an AOS include the I-601 packet with the AOS packet, if desired. For consular filings, the interview is the earliest date the I-601 can be filed. It is not the latest date. Some consulates, most notably Rio de Janeiro, have a policy that they will never accept the I-601 on the date of the interview, and the applicant must make a second in-person appointment to come back and file the waiver packet, even though this is a burden for many clients. For consulates that will accept on the day of the interview, if the applicant is not ready to file, they will typically be told they have 30 days to file. This deadline is typically easy to extend up to one year. Rather than extending that deadline, you may choose to “fee in” by filing the form and the fee and possibly a bare minimum of supporting documents if the consulate demands it. The consulate will forward the case to the CIS office, getting the client’s case in the ‘queue’ for adjudication. While it’s in the queue, a more solid waiver packet can be compiled and submitted it to the CIS office as an “addendum” or “amendment” up until the time the adjudicator reviews the case, whenever that may be. The advantage to the fee-in-amend-later strategy is that it cuts processing time while preparing a quality packet. The disadvantages are that (a) the consulate often makes a recommendation on whether to approve or deny and they can’t make a considered recommendation if they don’t see the packet, and (b) by submitting things separately there is a greater risk that amendments don’t make it to the right file. If the client doesn’t contact your office until he/she has already been found inadmissible, the fee-in-amend-later strategy is preferable. Be careful of using this strategy for USCIS offices with a rapid turnover rate, such as Frankfurt.
For in-country filings, sometimes the client does not know he will be found inadmissible until the adjustment interview. CIS will typically give the client 30 days to file the I-601. In this situation, extensions are not always granted and the fee-in-amend-later strategy is not recommended as a decision on the merits can be made immediately upon filing.
Can denials to Applications for Waiver of Ground of Excludability be appealed?
An appeal following an administrative denial to an Application for Waiver of Ground of Excludability must be made to the Administrative Appeals Office (AAO). It must be filed within 30 days of the date of the denial. Note that it is possible to fee-in-amend-alter with the appeal. In such a case it is necessary to submit the I-290B and filing fee within 30 days of the denial (33 if mailed), but on the form there’s a box that can be checked indicating that the representing attorney will send the brief directly to the Administrative Appeals Office within 30 days. Appeals are currently taking 14-16 months. As the waiver decision is discretionary, it is very difficult to win an appeal. AAO discourages new arguments being presented on appeal that were not in the original I-601 packet, but new or ‘updated’ evidence is generally acceptable. In the appeal it is best to argue one or more of the following: (a) Abuse of Discretion, (b) Mistake of Law, or (c) Mistake of Fact. You are not explaining why the client’s case meets the definition of extreme hardship; you are explaining why no reasonable person could have found that the client’s case doesn’t meet the definition of extreme hardship. Those are two very different things. The focus of any I-601 packet is the facts of the case. The focus of an I-601 appeal is the law and what lies within and without the parameters of the adjudicator’s discretion. The I-601 appeal is NOT merely a submission of a stronger I-601 packet.
Due to the lengthy processing time and low chance of success, consider refilling a de novo I-601 packet instead, especially if the client attempted the first I-601 pro se and it is clear that a better packet can be compiled. The law is unclear on whether it is possible to file a de novo I-601 based on the same immigrant visa or K visa case. Some consulates will allow simply re-filing, but most will require starting over with a new visa petition. Most of the consulates within the jurisdictional area of the Vienna USCIS office will allow a re-filing of the I-601 without a new petition. Always inquire to be sure. Even starting over with a new immigrant visa petition will typically get a decision faster than an appeal. Also, having to start over with a new visa petition allows time to put together a better waiver packet. The process will allow for several months, rather than the 30-60 days given for preparing an appeal.
For an in-country I-601 denial, the appeal will probably not stop the client from being placed into proceedings as the I-485 would also be denied. There is nothing to lose by attempting to get Deferred Action following the I-601 denial. Other tactics for how to handle immigration proceedings following I-601 denial are beyond the scope of this advisory.
The I-290B is normally filed with the consulate, but in a few parts of the world it is filed with the CIS office. Be sure to review the instructions on the denial notice.
Any Motion to Reconsider will be automatically converted into an appeal if the CIS office denies the Motion. Normally no notice of the decision on the Motion to Reconsider is given if it is denied. It is only possible to know it has been converted into an appeal by making inquiries. Consider carefully filing a Motion to Reconsider before the OIC if claiming Abuse of Discretion before the AAO. It’s hard to fashion an Abuse of Discretion argument that is not a bit insulting to the OIC who made the decision. This person is going to read the Motion and may remember Counsel’s name the next time one of Counsel’s waivers crosses his/her desk. The Motion to Reconsider filed with the foreign CIS office is almost never successful unless there is a new adjudicator who made a very clear legal error (e.g. thought a fiancé(e) couldn’t file an I-601).
Prepare in Advance or Wait?
If there is any question as to whether the client will actually be found inadmissible, Counsel may choose to wait until the finding of admissibility is made at the consulate interview or the AOS interview prior to working on the waiver. If the client is found inadmissible having waited will add at least 30 days to the entire process because it will take at least that long to prepare the waiver. However, if the client is not found inadmissible, the client will have saved thousands of dollars in attorney’s fees.
APPENDIX A: CASE LAW
These are cases in which the definition of Extreme Hardship is discussed. This is not an exhaustive list, but most of these cases are Suspension of Deportation or Cancellation of Removal cases or are about the waiver under INA 212(h). Especially useful is O-J-O.
Matter of W, 9 I&N Dec. 1 (BIA 1960)
Matter of Shaughnessy, 12 I&N 810 (BIA 1968)
Matter of Anderson, 16 I&N Dec. 596 (BIA 1978)
Matter of Ngai 19 I&N Dec. 245 (Comm. 1984)
Matter of I-G-E, 20 I&N Dec. 880 (BIA 1994)
Matter of Pilch, 21 I&N Dec. 627 (BIA 1996)
Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996)
In re O-J-O-, 21 I&N Dec. 381 (BIA 1996)
Matter of Monreal, 23 I & N Dec. 56 (BIA 2001)
In re Kao and Lin, 23 I & N Dec. 45 (BIA 2001)
Matter of Recinas, 23 I&N Dec. 467 (BIA 2002)
This is an article I'm working on for how to prepare waivers. I still consider this a draft at the moment. My assistant Lizz knows more about waivers at this point than most attorneys, so she's been working with me on the article. This article is meant to be read by other attorneys, but I thought you all might find it useful. Remember, this is a draft and I'm still working on it:
MEMO REGARDING WAIVER OF INADMISSIBILITY
I-601 Waivers and Extreme Hardship: Strategies for Writing a Convincing Narrative for an Application for Waiver of Ground of Excludability
Laurel Scott Esq. and Elizabeth Cannon
Under the Immigration and Nationality Act of 1996 are various provisions for I-601 Applications for Waiver of Ground of Excludability. This memo addresses the structure and content of a Application for Waiver of Ground of Excludability under INA § 212(a)(9)(B)(v), 212(h), and 212(i). As well this memo provides some information on the expectations of particular consular offices and adjudicators. It also provides reference to case law applicable to a variety of waivers, spanning Matter of W, 9 I&N Dec. 1 (BIA 1960) to Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). This Practice Advisory also highlights the merits of various arguments often proffered in the argument of Extreme Hardship.
Court decisions addressing the I-601 waiver may change the existing law or create new law. Counsel are advised to independently confirm whether the law in their circuit or BIA decisions have changed existing law or precedent since the date of this memo.
What is an Application for Waiver of Ground of Excludability?
An Application for Waiver of Ground of Excludability is filed by a qualifying relative in the event that an alien has been denied admission to the United States. Different sections of INA § 212 allow for the application of a waiver of excludability. Waivers must establish that a qualifying relative will suffer “extreme hardship” if the alien is not admitted. The qualifying relative can vary slightly. Some waivers require it to be established that “the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien,” in the case of INA 212(a)(9)(B)(v) or “that the alien''s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien,” in reference to INA 212(h)(1)(B). For the purposes of this advisory the Application for Waiver of Ground of Excludability will be referred to as an I-601.
HIV Waivers
While the I-601 form is also used for HIV waivers, the content of these arguments is completely different. An HIV waiver’s focus is health insurance. This advisory is not meant to provide guidance on HIV waivers.
Who adjudicates Applications for Waivers of Ground of Excludability?
I-601 waivers filed at a consulate are adjudicated by the representative of CIS at that consulate, not any consular officer. The consulate often makes a recommendation on whether to approve or deny an I-601, but it is the CIS office that makes the final decision. Typically, the Officer-in-Charge (OIC) at the CIS office abroad is the I-601 adjudicator. At some busy CIS offices, there is more than one CIS adjudicator, but all decisions are typically signed by the OIC. Typically, when there is more than one adjudicator, they will make efforts to make their decisions consistent within that CIS office, with the OIC setting the standard.
Not every country has a CIS office. To see which CIS office has jurisdiction over waivers filed in a particular country, go to the USCIS website.
For in-country filings, the immigration officer handling the adjustment of status case often makes the decision on the I-601, though sometimes a supervisor will handle the I-601.
What are applicable legal arguments for an Application for Waiver of Ground of Excludability?
All arguments for Applications for Waivers of Ground of Excludability are based on the precept that there is a qualifying relative that will suffer “extreme hardship” if the Alien’s admission is denied. Below are some examples of Extreme Hardship arguments. Here they are separated into levels, with Level 1 being the strongest arguments and Level 4 being the weakest. At some USCIS offices abroad, such as Ciudad Juarez, one Level 3 argument and a few Level 4 arguments are sufficient. At other USCIS offices, such as Manila, an approval will not be issued (in this attorney’s experience) unless there is at least one Level 1 argument presented. For most offices, it’s best to have at least one Level 2 and a few Level 3 arguments presented in the waiver. For the purpose of this advisory “Relative”, is always the qualifying relative. For the 3 and 10 years bans and for misrepresentation, the qualifying relative must be a US citizen or permanent resident spouse or parent, or a US citizen fiancé(e). For criminal grounds of inadmissibility, the qualifying relative may also be a US citizen or permanent resident child.
Level 1 arguments:
(a) Relative has a MAJOR medical condition (e.g. brain tumor, multiple sclerosis, cerebral palsy) which makes Relative unable to move abroad and for which Relative absolutely needs Alien in the US to help take care of him/her,
(b) Relative is caring for an elderly, chronically ill, or disabled relative who needs constant care and whose condition is bad enough that Relative either MUST live with the relative or Relative MUST spend at least an hour a day assisting the relative with things like hygiene or physical therapy, and this makes Relative unable to move abroad and makes him/her really need Alien in the US to help him/her care for his/her relative and manage his/her other responsibilities, or
(c) Alien''s country is in a state of war or major political upheaval (e.g. Liberia).
Level 2 arguments include:
(a) Relative is the primary caregiver for his/her child(ren) from a prior relationship and the child(ren)''s other parent will not allow the children to be taken out of the country AND the child(ren) have formed an emotional attachment to Alien
(b) Relative has a serious medical condition that makes it very difficult for Relative to move abroad and Relative needs Alien to provide help (e.g. Relative needs to have major surgery sometime in the next year, with an expected recovery time of several months),
(c) Relative is caring for a moderately disabled relative who normally can care for him/herself but occasionally has episodes in which he/she needs a lot of help from Relative and during those times Relative, in turn, needs help from Alien,
(d) a relative is unusually financially dependent on Relative (e.g. Relative''s mother has just gone through a nasty divorce with Relative''s father in which she got nothing and because she has never worked, she doesn''t qualify for social security, so Relative is supporting her in the entirety for the rest of her life),
(e) Relative has a child that he/she is about to put through college, or
(f) Alien''s country is on the verge of major political unrest (e.g. Bolivia) or negative political change (e.g. Iran) or the country is known for oppression of one sort or another (e.g. Relative is a Christian woman and Alien is from Saudi Arabia), or it is in the infant stages of post-war recovery (e.g. Afghanistan).
Level 3 arguments include:
(a) Relative is the non-custodial parent of a child from a prior relationship and has an actual relationship with that child and the child''s other parent will not allow Relative to take the child out of the country but Alien does not have a relationship with the child at this time,
(b) Relative a significant condition that makes it inconvenient to move out of the country (e.g. severe asthma and Alien spouse lives in Mexico City),
(c) Relative been diagnosed by a licensed psychologist/psychiatrist with clinical depression due to Alien''s immigration problems,
(d) Relative and Alien have young children together or Relative has full custody of Relative''s child and can bring him/her abroad and Alien''s home country has bad public health conditions and bad public education,
(e) Relative''s job requires a license in both the US and abroad and it will be very difficult to get licensed abroad (e.g. attorney, medical doctor),
(f) Relative has job skills that are very specific to the US (e.g. a tax accountant with extensive familiarity with US tax law),
(g) Alien''s country has a very bad economy (e.g. Chad),
(h) Relative has a close relative who is partially dependent on Relative financially (e.g. Relative''s mom gets social security but needs Relative''s extra $500 per month to stay in her present apartment) or physically (e.g. Relative''s mother functions well now, but her health has been declining and it is expected she will need more of Relative''s help in the near future).
Level 4 arguments include:
(a) Relative has debts they wouldn't be able to pay if they moved abroad,
(b) Alien''s country has a high unemployment rate,
(c) Alien''s country has a high crime rate,
(d) Relative has been despondent due to the situation, but hasn't sought professional help,
(e) Relative''s parents are aging.
Many clients who do their own research are advised by others on the internet, typically non-attorneys, to include a psychological self-scoring test, called Holmes-Rahe. In my opinion, this is not worth including. It is also probably not worth including the argument that the couple wants to have children in the future (but are not currently pregnant) and either the wife is getting older or the foreign country has a high infant mortality rate.
Note: whenever a waiver claims a relative is dependent on Relative either for direct care or for money, Counsel must explain why no other relative such as one of Relative''s siblings can provide the same care or support.
The reality is adjudicators are currently each creating their own guidelines using only the case law for reference. The problem is that the case law is inconsistent, in my opinion.
The case law actually says that because each case is unique, the adjudicator has broad discretion to decide what constitutes extreme hardship. Statements along these lines appear in many decisions. The statements effectively discourage USCIS from creating the kind of list I just presented. The authors feel this endows the adjudicator with far too much discretionary power, but the issue of the need for immigration reform is another topic.
How much supporting documentation is sufficient?
A waiver packet should include: forms, brief or attorney letter (10-15 pages), and supporting documents (20-50 pages). That being said, there are attorneys that have repeat success with briefs shorter than 5 pages. If it is absolutely necessary to supply more than 50 pages of supporting documents, then do so, but at some point one will experience the law of diminishing returns where there is the risk of annoying the adjudicator with too much to read, thereby outweighing any or all benefits of including a given document. The catch-22 is that the Administrative Appeals Office prefers to see more evidence than any initial CIS adjudicator and prefers for all evidence to have been submitted in the initial filing. Keep in mind that the intent is to convince the adjudicator the first time around, so aim to please the adjudicator, not the AAO. A shorter packet can receive approval if there are a few pieces of very good evidence and a very strong argument.
What constitutes sufficient evidence?
Any argument presented in the I-601 must be supported with good evidence. There should be non-personal documents, such as country reports, and personal documents such doctors’ letters and psychologist letters. For non-personal documents it’s best to cite US government sources, as the US government adjudicator will have more trouble dismissing them. Typical sources are the Consular Information Sheets, the CIA Fact sheets, and the National Institutes of Health medical encyclopedia. Use newspaper articles and NGO reports sparingly when information needed cannot be found from a US government source. Certain adjudicators have openly ‘dismissed’ this attorney’s non-US government sources in their denials, even when the reports come from reputable sources such as Amnesty International.
For personal documents, confirm all letters are signed and dated. They do not need to be notarized. Attorney-certified photocopies may be sent, but sending the original and keeping the copy is preferable. Doctors’ letters should describe the medical condition, the patient’s physical limitations (e.g. no driving), the need for assistance, the need for continued medical care, and (if applicable) the physician’s personal knowledge of the alien’s prior role in providing direct assistance to the patient. Psychologist letters should describe the condition, how the psychologist arrived at that diagnosis, the relationship between the waiver process and the condition, the likely psychological effects of waiver denial, the frequency of the patient’s visits, the medications the patient is on (if any), and the plan for future treatment. Some attorneys include the doctor’s or psychologist’s resume. This attorney rarely finds this helpful or necessary. Some lab reports or medical notes may be appropriate depending on the case.
Cases are proven with the supporting documents, not with the brief. The purpose of a brief is to make sense out of the supporting documents and place the case into legal context. Good supporting documents are paramount to getting approval.
The qualifying relative’s letter is required. This attorney usually includes it as a supporting document.
For personal documents in the form of a letter, guide the person in writing the letter, but don’t write it for him/her; it needs to be in their own words.
How much should I charge the client for this?
If you prefer to charge a flat fee as I do, assume that this will take 20-40 attorney hours for most cases and charge accordingly. A well-prepared waiver application is a major undertaking.
What can be expected from different Offices?
The greatest factor in predicting whether a given waiver will be approved is where it’s filed. This factor is more important than any hardship argument or the ground of inadmissibility. If a client is currently in the US and is trying to decide whether to attempt the I-601 process abroad counsel must consider where the I-601 is being filed in order to properly advise the client. This attorney has not worked with every CIS office overseas, but has experience with many of them. Here they have been listed from what this attorney sees as the most facile to work with and whose adjudicator’s consideration is most thorough and reasonable, with tips for approaching each office. When any new adjudicator is posted, there is the potential for a given office to change, but the change is usually minor, with an office either getting only somewhat more or less apt to dismiss conditions of hardship with the presence of a new Officer-In-Charge
Information on several CIS offices abroad:
· Ciudad Juarez – Will approve most well-prepared waiver packets with evidence. The I-601 process is an excellent option for Mexican EWI clients married to US citizens who are willing to tough out the 6+ months they will have to spend in Mexico. Do not be afraid of the I-601 process for clients that fit this profile. I recommend at least two Level 3 arguments before sending a client out of the country to attempt the I-601. Include evidence of the strength of the relationship. INA 212(a)(9)(C) and INA 212(a)(6)(C)(ii) problems are frequent for Mexicans, so be sure to evaluate a client’s immigration history carefully. There have been some concerns related to the drug history questions asked during the medical exam. Read the AILA Practice Advisory on this subject so you can prepare your clients. It takes 6-8 months for a decision. OIC responds to emails quickly.
· London –London is nearly as likely to issue an approval with a solidly supported case of hardship as Juarez. Allow around 12 weeks for a decision. Response speed to inquiries is inconsistent with some responses given quickly. The quality of the responses is inconsistent.
· Vienna – Has been having problems keeping the position filled for I-601 adjudicator. Generally it is one of the offices in Europe that is most likely to weigh all hardships and issue an approval. 3-6 months for decision when I-601 adjudicator position filled. CIS office assistant responds to emails quickly.
· Frankfurt – Fastest I-601 turnaround time outside of the US, sometimes in as little as four weeks. Possibly the most administratively efficient CIS office abroad. Generally likely to approve cases with a few Level 3 arguments, though at least one Level 2 argument is recommended. Best office to go through for ‘homeless’ Middle Eastern cases, such as Iranian cases as country conditions for Middle Eastern cases are taken seriously. Country conditions in Eastern Europe not given much weight. OIC responds to emails quickly.
· Vermont (handles Canadian cases) – Less predictable as process has recently changed, At least 6 months for decision. Serious administrative problems are common. Communications difficult.
· Rome – Unlikely to approve a case without at least one Level 2 argument. Response time to inquiries unknown. 6 months or more for a decision.
· Lima – If the couple is not married, include an explanation as to why marriage has not yet taken place. Do not attempt to argue merits of the case over the phone. Misrepresentation viewed harshly. Country conditions in South America generally not considered strong hardship. OIC responds to fax inquiries quickly, typically with a return phone call. 4-6 months for a decision.
· Athens – Traditionally this has been a very tough office to get an approval from, though it just received a new OIC. Extremely unlikely to approve case without at least one Level 2 argument, and at least one Level 1 argument preferred. Has been known to deny cases even with a Level 1 argument if the alien’s immigration history is especially complicated (e.g. multiple deportations and misrepresentations). If Counsel has the option to have the case adjudicated through another office (e.g. Iranian “homeless case”) then do so. It is advisable to not go through Athens if there is another option. Always investigate the option of having the client move to a country in Europe so that the waiver will not go through Athens. 12-14 months for a decision. CIS office assistants respond quickly to telephone inquiries.
· Manila –This attorney has never had an approval through Manila without at least one Level 1 argument. This office seems to be defining “Extreme Hardship” as strictly or more strictly than “Exceptional and Extremely Unusual Hardship”. Do not send clients out of the country if they have to go through Manila. It is not worth the risk. Keep them here and wait for the law to change. Or, see if possible, get them a visa to go to Mexico, have them live there for a year, and file the I-601 in Juarez. If the client is already abroad and does not have at least one Level 1 argument, recommend to the client and spouse that they spend their money attempting to relocate to a third country, rather than spending thousands of dollars in attorneys fees in a futile attempt to get a waiver. 6-12 months for decision. CIS office assistants respond quickly to telephone inquiries, though their responses are not always consistent or reliable. You have to get up in the middle of the night to call.
Other offices
This attorney has had cases adjudicated in Islamabad and Panama City, but not enough cases to really get a feel for what they consider hardship. Islamabad has a great deal of administrative problems and is taking over a year to adjudicate. Avoid Islamabad due to administrative problems. Panama City so far has approved one of this attorney’s very strong cases.
Can an I-601 be filed within the US?
It is not possible to file the waiver in the US if the alien entered EWI because there is an AOS problem under INA 245(a), which the I-601 will not cure. Also, if the client entered on a K visa and is not adjusting through the K visa petitioner, there is a problem under INA 245(d), which the I-601 will not cure and the alien must file abroad. But if the client doesn’t have any problems adjusting under INA 245, it may be possible to file the I-601 in the US. The adjudication of local filings seems to have no rhyme or reason. It all depends on the individual adjudications officer who reviews the case. Make the case as strong as possible.
Can Fiance(e)s file as qualifying relative?
Yes, fiancé(e)s can file an I-601. See 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).
How does one file for Deportees?
For aliens outside the US, if the alien needs to file an I-212 and an I-601, they must be filed together at the consulate. It is impossible to file the I-212 at the district office and then file the I-601 at the consulate. 8 CFR 212.2(d). The need to file an I-212 in addition to an I-601 does not mean that a waiver packet will be any different than if a client needs only the I-601. In essence it means another form needs to be completed and another fee paid. However, extreme hardship needs to be proven only once.
How does one file with Multiple Grounds of Inadmissibility?
If the client needs waivers under INA 212(a)(9)(B)(v), INA 212(h) and INA 212(i), only one I-601 form is needed and one waiver packet, and the fee paid once. An extra fee is needed only if the client has a deportation and a I-212 must be filed as well.
Other considerations
If filing at an office other than the alien’s home country, it is possible to encounter problems getting the client a visa to enter that third country. If it’s Europe, keep in mind that for EU countries, there are certain non immigrant visas that if issued by any EU country, are honored by all EU countries, even if another EU country has denied the alien a visa before. For example, one Iranian client couldn’t get a German visa to go to her interview in Frankfurt, but Greece issued her a visa that allowed her to legally travel to Frankfurt in time for the interview. Contact the US consulate of that country to make sure the client doesn’t need a visa from that country.
Most consulates will not take waiver cases for third country nationals unless the client resides in that country. The major exception is the “homeless” case where the US has no consulate in that country and no one specific consulate has been designated for nationals of that country to go to, OR the alien is stateless. If the client has a credible fear of returning to his/her home country, it is reasonable to contact many consulates to investigate which of them might take the case. Contact the consulates directly to ask, or work with the NVC when the case is at that point in the process. If Counsel has an opportunity to inquire at many consulates and the NVC assigns a consulate Counsel doesn’t want to work with, contact NVC and make a request for a specific consulate. Bear in mind that filing in Canada is not necessarily the best option due to administrative problems in Vermont. Also keep in mind that EU nationals can often live and work in another EU country fairly easily. If an EU client’s case would normally go through Rome, discuss the possibility of the client moving to England for some time so he/she will be eligible to file through London, which is faster and more lenient than Rome. Juarez typically will not take waiver cases for third country nationals unless the client has legally resided in Mexico for one year prior to the interview.
How can a case be expedited?
Every client wants his/her case expedited. Making an expedite request on every case interferes with the efficiency of any office and slows down the procedure for everyone. An attorney wants to be a zealous advocate for their client, but try not to make expedite requests unless there is a truly urgent, serious situation. Let the client know at the outset of the representation that your office will not be making an expedite request. Note, this attorney has made many non-frivolous expedite requests on I-601 cases and NONE of them has ever been successful, even when small children are involved and even when the US citizen petitioner has cancer.
If there is an unusually compelling Level 1 argument and the alien is currently present in the US, check for eligibility for Cancellation of Removal. If the alien is eligible except for the 10-year requirement, explore the possibility of requesting Deferred Action until the 10-year mark and/or until the alien may be able to benefit from CIR. If the hope is the alien will benefit from CIR, be sure to get the I-130 filed so he/she will qualify under the Family Unity amendment. It may also be necessary to explore the possibility of trying to get a promise of Expedite from both the consulate and the CIS office prior to sending the alien out of the country; this would be quite a feat, but it might be worth an attempt if there is a truly compelling Level 1 argument. Keep in mind that even if the waiver is adjudicated quickly, there may still be problems with security checks and administrative problems.
How can one file for a case involving INA 212(a)(9)(C)?
Always, always, always confirm a client won’t be found inadmissible under INA 212(a)(9)(C) prior to either sending the client out of the country or taking money to prepare a waiver. If the client is not sure whether he/she was formally deported or just refused entry, run an FBI fingerprint check. The FBI report will list all deportations, but if the alien was merely refused entry, the incident will not appear on the report. If the client does have a (9)(C) problem, file the I-130 so that he/she will qualify under the Family Unity amendment of the CIR if and when it passes. In waiting for the bill to pass before taking action the opportunity will be missed because the Family Unity amendment will only benefit those who had the I-130 filed prior to the date the law passes. While filing an I-485 will lead to an NTA if and when the I-485 is denied, filing just the I-130 will rarely lead to an NTA for a non-criminal alien. The potential benefits of filing the I-130 if CIR passes outweigh the risks of getting an NTA. Other attorneys may disagree.
How to approach Rehabilitation, Moral Character and Apologies
A criminal waiver can be approved on rehabilitation alone in some cases. Look at INA 212(h).
Other than the criminal waivers, I-601 waivers should focus on the extreme hardship to the relative and not the moral character of the alien. However, depending on the facts of the case, it is sometimes beneficial include character letters. When doing so, be conscious of the size of the packet and how much the adjudicator is being asked to read.
If the applicant clearly and intentionally violated the law, apologizing for the violation may be a good idea. If the alien is contesting the ground of inadmissibility or thinks he/she didn’t do anything wrong (e.g. a ‘notario’ committed the fraud without alien’s knowledge), DO NOT have the alien apologize. An apology is a confession. In any argument of minimal responsibility for the ground of inadmissibility, apologizing destroys that argument.
Contesting Ground of Inadmissibility
If contesting the ground of inadmissibility, but with a deadline for I-601 submission and/or the belief the challenge to the finding will be unsuccessful, go forward in filing the I-601, stating in the opening paragraph that there is no concession of inadmissibility. Include the argument against the finding in the brief. This may not win over the consulate, but may win over the CIS officer. CIS can’t over-rule the consulate’s decision on inadmissibility, but if the CIS adjudicator agrees with the argument’s reasoning, he/she will take that into consideration when deciding the waiver.
There’s nothing in the law that prevents the filing of a Motion to Reconsider, or an Advisory Opinion request regarding the finding of inadmissibility, at the same time that the I-601 is filed.
Inquiries
Contact the various offices via phone or email for administrative concerns only. Don’t attempt to argue the merits of the case over the phone. Discourage the client from attempting to contact the CIS him/herself. Many of the offices don’t appreciate such phone calls, even though the consulates typically don’t mind. As well, a good relationship with all offices only helps the chances of an adjudication happening quickly and to the clients benefit. Processing times are subject to change without notice.
Keep the number of inquiries to a minimum as they tend to slow down the progress of work at the CIS office. If you are concerned about making sure the waiver has been received, contact USCIS no earlier than thirty days after filing. If filing any addendums directly with the CIS office following their receipt of the waiver packet, you may inquire within a few days of when it is expected they received the addendum to confirm its receipt and that it has made it to the correct file. Avoid making another inquiry until the case is outside the normal processing time. Following that, make subsequent inquiries no earlier than 30 days after the most recent prior inquiry. Discourage the client from making inquiries on his/her own without express approval from Counsel.
Deadlines
An I-601 cannot be filed abroad prior to the immigrant visa or K visa interview. For an AOS include the I-601 packet with the AOS packet, if desired. For consular filings, the interview is the earliest date the I-601 can be filed. It is not the latest date. Some consulates, most notably Rio de Janeiro, have a policy that they will never accept the I-601 on the date of the interview, and the applicant must make a second in-person appointment to come back and file the waiver packet, even though this is a burden for many clients. For consulates that will accept on the day of the interview, if the applicant is not ready to file, they will typically be told they have 30 days to file. This deadline is typically easy to extend up to one year. Rather than extending that deadline, you may choose to “fee in” by filing the form and the fee and possibly a bare minimum of supporting documents if the consulate demands it. The consulate will forward the case to the CIS office, getting the client’s case in the ‘queue’ for adjudication. While it’s in the queue, a more solid waiver packet can be compiled and submitted it to the CIS office as an “addendum” or “amendment” up until the time the adjudicator reviews the case, whenever that may be. The advantage to the fee-in-amend-later strategy is that it cuts processing time while preparing a quality packet. The disadvantages are that (a) the consulate often makes a recommendation on whether to approve or deny and they can’t make a considered recommendation if they don’t see the packet, and (b) by submitting things separately there is a greater risk that amendments don’t make it to the right file. If the client doesn’t contact your office until he/she has already been found inadmissible, the fee-in-amend-later strategy is preferable. Be careful of using this strategy for USCIS offices with a rapid turnover rate, such as Frankfurt.
For in-country filings, sometimes the client does not know he will be found inadmissible until the adjustment interview. CIS will typically give the client 30 days to file the I-601. In this situation, extensions are not always granted and the fee-in-amend-later strategy is not recommended as a decision on the merits can be made immediately upon filing.
Can denials to Applications for Waiver of Ground of Excludability be appealed?
An appeal following an administrative denial to an Application for Waiver of Ground of Excludability must be made to the Administrative Appeals Office (AAO). It must be filed within 30 days of the date of the denial. Note that it is possible to fee-in-amend-alter with the appeal. In such a case it is necessary to submit the I-290B and filing fee within 30 days of the denial (33 if mailed), but on the form there’s a box that can be checked indicating that the representing attorney will send the brief directly to the Administrative Appeals Office within 30 days. Appeals are currently taking 14-16 months. As the waiver decision is discretionary, it is very difficult to win an appeal. AAO discourages new arguments being presented on appeal that were not in the original I-601 packet, but new or ‘updated’ evidence is generally acceptable. In the appeal it is best to argue one or more of the following: (a) Abuse of Discretion, (b) Mistake of Law, or (c) Mistake of Fact. You are not explaining why the client’s case meets the definition of extreme hardship; you are explaining why no reasonable person could have found that the client’s case doesn’t meet the definition of extreme hardship. Those are two very different things. The focus of any I-601 packet is the facts of the case. The focus of an I-601 appeal is the law and what lies within and without the parameters of the adjudicator’s discretion. The I-601 appeal is NOT merely a submission of a stronger I-601 packet.
Due to the lengthy processing time and low chance of success, consider refilling a de novo I-601 packet instead, especially if the client attempted the first I-601 pro se and it is clear that a better packet can be compiled. The law is unclear on whether it is possible to file a de novo I-601 based on the same immigrant visa or K visa case. Some consulates will allow simply re-filing, but most will require starting over with a new visa petition. Most of the consulates within the jurisdictional area of the Vienna USCIS office will allow a re-filing of the I-601 without a new petition. Always inquire to be sure. Even starting over with a new immigrant visa petition will typically get a decision faster than an appeal. Also, having to start over with a new visa petition allows time to put together a better waiver packet. The process will allow for several months, rather than the 30-60 days given for preparing an appeal.
For an in-country I-601 denial, the appeal will probably not stop the client from being placed into proceedings as the I-485 would also be denied. There is nothing to lose by attempting to get Deferred Action following the I-601 denial. Other tactics for how to handle immigration proceedings following I-601 denial are beyond the scope of this advisory.
The I-290B is normally filed with the consulate, but in a few parts of the world it is filed with the CIS office. Be sure to review the instructions on the denial notice.
Any Motion to Reconsider will be automatically converted into an appeal if the CIS office denies the Motion. Normally no notice of the decision on the Motion to Reconsider is given if it is denied. It is only possible to know it has been converted into an appeal by making inquiries. Consider carefully filing a Motion to Reconsider before the OIC if claiming Abuse of Discretion before the AAO. It’s hard to fashion an Abuse of Discretion argument that is not a bit insulting to the OIC who made the decision. This person is going to read the Motion and may remember Counsel’s name the next time one of Counsel’s waivers crosses his/her desk. The Motion to Reconsider filed with the foreign CIS office is almost never successful unless there is a new adjudicator who made a very clear legal error (e.g. thought a fiancé(e) couldn’t file an I-601).
Prepare in Advance or Wait?
If there is any question as to whether the client will actually be found inadmissible, Counsel may choose to wait until the finding of admissibility is made at the consulate interview or the AOS interview prior to working on the waiver. If the client is found inadmissible having waited will add at least 30 days to the entire process because it will take at least that long to prepare the waiver. However, if the client is not found inadmissible, the client will have saved thousands of dollars in attorney’s fees.
APPENDIX A: CASE LAW
These are cases in which the definition of Extreme Hardship is discussed. This is not an exhaustive list, but most of these cases are Suspension of Deportation or Cancellation of Removal cases or are about the waiver under INA 212(h). Especially useful is O-J-O.
Matter of W, 9 I&N Dec. 1 (BIA 1960)
Matter of Shaughnessy, 12 I&N 810 (BIA 1968)
Matter of Anderson, 16 I&N Dec. 596 (BIA 1978)
Matter of Ngai 19 I&N Dec. 245 (Comm. 1984)
Matter of I-G-E, 20 I&N Dec. 880 (BIA 1994)
Matter of Pilch, 21 I&N Dec. 627 (BIA 1996)
Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996)
In re O-J-O-, 21 I&N Dec. 381 (BIA 1996)
Matter of Monreal, 23 I & N Dec. 56 (BIA 2001)
In re Kao and Lin, 23 I & N Dec. 45 (BIA 2001)
Matter of Recinas, 23 I&N Dec. 467 (BIA 2002)