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State-Side Pre-Adjudication of Unlawful Presence Waivers

By Charles Wheeler

The USCIS published a Notice of Intent for proposed rulemaking in the Federal Register on January 9, 2012.  This notice outlined the agency’s proposed plan to transfer the adjudication of certain I-601 waiver applications from USCIS overseas to stateside processing.  This adjudication would take place before the applicant leaves for consular processing, thus eliminating the waiting time abroad and the uncertainty of the adjudication outcome.  Those applicants whose waiver is provisionally approved could then continue with immigrant visa processing at the U.S. consulate abroad; those who are denied would likely choose to abandon the process.  The proposed pre-adjudication procedure is not in effect yet and will likely not go into effect until the end of the year.

When a proposed regulation is published, perhaps this spring, it will contain a 60-day notice and comment period.  CLINIC will be circulating model comments and encouraging affiliate programs to submit their own formal response.  The USCIS announcement has caused media attention and interest in the immigrant community.  CLINIC will also be providing further information, including sample community education materials. Below is a short summary and analysis of the Federal Register notice.

1.  The pre-adjudication policy would apply only to immediate relatives, i.e., spouses, parents, and unmarried children under 21 of U.S. citizens.  Those in the preference categories (spouses and children of permanent residents; married children or children over 21 of U.S. citizens; and siblings of U.S. citizens) would not be covered and would continue to be subject to the current waiver filing requirements.  In other words, they will file their I-601 waiver after being formally refused an immigrant visa by a consular official and that waiver will be adjudicated by an overseas USCIS office.  It is unclear at this time whether the agency is likely, or could be convinced by the submission of comments, to expand this to cover all family preference categories. This proposed change will also have limited applicability to parents of U.S. citizens over 21, since they will likely lack the qualifying relative.

2. The pre-adjudication procedure would apply only to immediate relatives who are filing an I-601 application to waive the unlawful presence ground of inadmissibility that would be triggered by the immigrant visa applicant’s departure for the consular interview.  Those who are subject to inadmissibility based on other grounds, such as fraud, health, or criminal conduct, will be subject to the current waiver filing requirements.  It is also important to remember that family members who have triggered the “permanent bar” under INA § 212(a)(9)(C), based on more than one year of unlawful presence followed by a departure and illegal reentry, cannot file a waiver until they have departed and spent 10 years outside the United States.  It is unclear at this time whether the agency is likely, or could be convinced by the submission of comments, to expand this to cover other grounds of inadmissibility.

3.  The anticipated pre-adjudication procedure would apply only to immediate relatives who are basing it on extreme hardship to a U.S. citizen parent or spouse, not a permanent resident alien parent or spouse.  Such a limitation appears arbitrary, and CLINIC will be advocating for expansion to include all qualifying relatives as that term is currently defined.

 4.  The waiver would be filed after the I-130 petition is approved and the case file has been forwarded to the National Visa Center, which controls consular processing.  The immigrant visa applicant would likely file the waiver at one of two designated USCIS Service Centers and pay the filing fee (currently $585).  All waiver applicants will be screened through existing databases based on their names and biometrics to see if they are subject to other grounds of inadmissibility. The agency is considering the creation of a new waiver form to distinguish it from the filing of an I-601.

5.  If the waiver is granted by the USCIS Service Center, it would be on a provisional basis.  This means that the consulate reserves the right to question the immigrant visa applicant, review current data bases, and investigate for any other possible grounds of inadmissibility that were not previously identified. But it is anticipated that denial of an immigrant visa after the waiver has been provisionally granted would be rare.

6.  If the waiver is denied by the USCIS Service Center, the applicant would be subject to the current USCIS policy on issuance of a Notice to Appear, which commences removal proceedings.  According to the November 7, 2011 USCIS memo titled “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens,” the USCIS will issue NTA’s when there is a finding of fraud in the record.  The memo does not indicate if the nature of the fraud will be considered, but simply states upon a finding of fraud, an NTA will be issued.  In addition, an NTA will be issued if the applicant is under investigation for, has been arrested for, or has been convicted of an “egregious public safety” crime.  These include aggravated felonies, such as murder, rape, sexual abuse of a minor, firearms trafficking, crimes of violence for which a term of imprisonment for a year or more has been imposed, ransom, child pornography, alien smuggling, or offenses relating to peonage or slavery.  In addition, NTAs will be issued to human rights violators and those where the alien reentered the United States after an order of removal subsequent to a conviction for a felony where an I-212 has not been approved.

In the case of non-egregious public safety criminal cases, the USCIS will complete adjudication of the waiver and refer the case to Immigration and Custom Enforcement (ICE).  ICE will then decide whether or not to issue an NTA.  It will make its decision based on the “totality of the circumstances” and existing priorities and guidelines on the exercise of prosecutorial discretion.  The totality of the circumstances includes factors such as the severity of the crime, time since the crime was committed, additional criminal conduct, evidence of rehabilitation, immigration history, length of presence in the United States, and contributions to society.  The USCIS will not issue an NTA if ICE declines to do so.

Therefore, in the routine case involving an applicant with no serious criminal conduct, if the waiver for unlawful presence is denied, the applicant will not be put into immigration proceedings.  However, practitioners will need to screen their clients well to determine if they are subject to any other grounds of inadmissibility, including prior orders of deportation.

7.  The proposed change does not affect current requirements for eligibility for the waiver of unlawful presence, nor does it modify the standard of extreme hardship to a U.S. citizen spouse or parent.  Those applicants who are provisionally approved would still have to consular process if they are not otherwise eligible for adjustment of status.  The proposed change would not affect pending waiver applications.  In other words, those who have left the country and are waiting abroad for their waiver to be approved by the USCIS will be subject to the current procedure.  This change, however, will likely discourage those immediate relatives who are in the consular process pipeline and will be scheduled for an immigrant visa soon from proceeding abroad if they would be eligible for this pre-adjudication process.