By Debbie Smith
On June 4, 2012, the procedure for filing waivers in consular processing cases changed. Beginning on that date, Form I-601 and Form I-212 are to be filed at the Phoenix Lockbox for adjudication by the Nebraska Service Center (NSC). While the new waiver application process, explained in last month's newsletter, will cover most individuals seeking a waiver, a USCIS policy memo posted on May 31, 2012 describes exceptions to the new filing procedure. Please note that this new procedure is different from the proposed regulation that would allow for provisional waivers of the unlawful presence bar for immediate relatives. That regulation has not been finalized; this article does not address that issue.
Exceptions to the Lockbox Filing. In the USCIS policy memo, "Exceptions for Permitting the Filing of Form I-601..,." posted on May 31, 2012, USCIS addresses instances where Lockbox filing may not be appropriate or where "exceptional and compelling circumstances" require immediate filing of the waiver application. For example, waiver applicants residing in Cuba do not have access to direct mail service. In the case of individuals residing in Cuba, applicants may continue to file Form I-601 and Form I-212 at the USCIS Havana Field office.
In cases where even expedited processing by the NSC may be insufficient to handle "exceptional and compelling" cases, the international USCIS Field Office Director (FOD) may accept the filing of and adjudicate a Form I-601 and I-212 waiver application. The memo cautions that these cases will be "rare" and applies only in countries where a USCIS office is located. Some examples of circumstances where waiver applications may be accepted abroad include instances:
- where the applicant or qualifying family member is facing a medical emergency, including pregnancy, that requires immediate travel
- where the applicant or qualifying family member is facing an imminent threat to personal safety
- where a beneficiary will age-out within a few weeks
- where a petitioner has adopted a child and has an urgent need to depart the country.
This list of examples is not exhaustive and FODs are authorized to accept waiver applications abroad in exceptional and compelling humanitarian circumstances in their discretion. If the FOD decides not to accept the filing of the waiver abroad, he or she "should" inform the applicant that a written request to expedite the waiver may be filed with the Lockbox. In addition, FODs are not permitted to accept the filing of or adjudicate a waiver if the applicant is not in the country where the USCIS international office is located.
Reason for Procedural Change. USCIS states that the new system will standardize and expedite the waiver application process for individuals applying for legal residency abroad. Waiver applicants abroad confront processing times of a year or more, depending on the filing location. According to a May 31, 2012 USCIS stakeholder teleconference, there are currently 10,000 waiver cases pending that were submitted abroad, and all but 500 were filed at the U.S. consulate in Ciudad Juarez. About 1,000 of those cases have been transferred to the NSC and the others have been transferred to a USCIS office in Anaheim, California. An additional 21 officers have been detailed to Anaheim to reduce this caseload. During the May teleconference, USCIS affirmed that its adjudication goal under the new procedure is a three-month processing time from the time of submission to the adjudication of the waiver. The approval of the waiver will be transmitted electronically to the consulate, to speed-up the issuance of the visa.
Reminder of Transition Dates. There will be a transition period to the new waiver submission policy to allow waivers to be filed at the U.S. consulate or Embassy until July 3, 2012. The grace period for filing waivers abroad will be six months for waivers filed at the U.S. consulate in Ciudad Juarez.
Significance. The need to accelerate waiver processing of immigrant visa applicants is both real and urgent. Without being eligible to adjust status, thousands of individuals processing abroad are separated from family members in the United States for months or years while they await the approval of waivers and issuance of visas. It is hoped that the transfer of waiver processing to USCIS officers in the United States will maintain or even increase the current 75 percent approval rate for unlawful presence waivers filed at the USCIS office at the consulate in Ciudad Juarez.