By Susan Schreiber and Charles Wheeler
CLINIC conducted its annual family-based immigration law conference in El Paso on November 14-15, followed by a tour of the US consulate in Ciudad Juarez (CDJ) on November 16. Sean Simmons, USCIS Acting Field Office Director, and Cathy Holt, Immigrant Visa Chief, US Consulate, CDJ, gave presentations and answered questions from participants. The following are some of the highlights, although these are unofficial minutes.
The transition period for local USCIS waiver adjudication will end on December 4, 2012, after which all waivers will be filed stateside. USCIS is still in the process of adjudicating 2,850 pending cases. All but 30 were filed prior to the announcement of stateside filing (June 4, 2012). Three officers are currently vetting cases scheduled for local adjudication, including one officer permanently stationed at CDJ.
Waiver applicants still have to wait until they are denied by a consular officer at CDJ in order to make the drop-off appointment. The Nebraska Service Center (NSC) is promising a three-month turnaround for waivers filed stateside with that office, while CDJ is vetting cases within two months after filing. If approved at vetting, it will take another month to receive the immigrant visa. If the waiver is not approved at vetting, the application will be sent to one of several USCIS offices, which result in further delay. So it is probably faster to file stateside.
The consulate experienced an easy transition to stateside (lockbox) filing. CDJ receives decisions electronically from the NSC – no paper filing. CDJ can act quickly because it is not waiting for the paper file, which is the case for decisions on applications filed with the local USCIS.
Some advocates may receive a waiver approval notice before the decision is sent to CDJ. Advocates are advised to be patient and not contact CDJ until five months have passed. The USCIS no longer retains the applicant’s passport, so the applicant will need to wait for further instruction from CDJ about the need for passport submission, a new medical report, or re-payment of the IV fee.
The consulate is prepared for implementation of pre-adjudication of unlawful presence waivers. It has conducted staff training and is ready for an increase in I-130 filing from immediate relatives who have previously been waiting on the sidelines.
Although advocates have experienced an increase in denials based on a finding of smuggling, CDJ has not changed its interpretation of this ground of inadmissibility. Nor has CDJ changed its interpretation after the Visa Office reversed some of the consulate’s findings of smuggling. The consulate has "tightened up" on interviewing applicants on this issue. There was a period of time when officers were not finding smuggling when a parent and child traveled and entered the country illegally. There was also a period when officers were possibly overzealous in finding smuggling when an applicant entered the U.S. in the company of others. The legal standard in this context should be whether the applicant's support to the child or co-traveler was material to the other person being able to enter. Consulate officers will ask questions to determine whether the smuggling ground of inadmissibility applies. Where a group of individuals is traveling together and they would have entered illegally regardless of the assistance of the visa applicant, this would not support a smuggling finding.
Challenging a Consular Decision
When an advocate believes a consular officer has made a wrong decision, he or she should use the special email address on the CDJ website to communicate with the consulate. That link is: http://ciudadjuarez.usconsulate.gov/feedback-form.html . CDJ staff attempt to respond to these inquiries within three business days. Concerns about misapplication of law usually are addressed by Ms. Holt or one of her deputies. Advocates should use that same email address when submitting new evidence in response to a section 221(g) refusal or request for additional documentation. If the advocate does not have a G-28 on file, use the contact email, identify that you are representing the applicant, scan and attach a G-28.
Termination of Registration
Pursuant to section 203(g), after one year the consulate can terminate the registration of an applicant who has failed to attend a consular interview or respond to notices. After two years, the file is destroyed and the applicant will need to start over with a new approved I-130 petition. An electronic data base provides a list of applicants eligible for termination. After notice of termination, but before two years have transpired, the applicant can request reinstatement of the application due to circumstances beyond his or her control. If an applicant postponed an interview but remained in contact with the consulate, that will not trigger termination. But Ms. Holt discouraged advocates from having their clients schedule a "no-show" – an appointment they don't intend to keep. That takes away an appointment from someone else. If that happens repeatedly, the consulate will terminate the case. Ms. Holt suggested that if an applicant is not ready for consular processing, the better alternative is to slow down the process at NVC so that an appointment is not scheduled.
Ms. Holt also explained that termination confirmation does not go to USCIS. Case files that are terminated are physically destroyed and cannot be reinstated, except due to consular error. Filing a Form I-824 with the USCIS will not act to reinstate a case that has been destroyed.
Tattoos and Inadmissibility: Findings Based on Gang Membership
Participants expressed concern about denial of an immigrant visa because the applicant is tattooed. Ms. Holt indicated that concern about this issue is not supported by the number of inadmissibility findings based on 212(a)(3)(A) (“”any alien who a consular officer…has reasonable ground to believe seeks to enter the United States to engage in…unlawful activity…”). Only 200 visa applicants were found inadmissible in FY 2011 based on gang membership. The consulate sees many applicants with tattoos without being concerned about gang membership. Officers are informed about gang tattoos and which tattoos are associated with which gangs. If an interviewing officer believes an applicant is inadmissible based on gang membership, the case will be sent to the Visa Officer to confirm the decision. The applicant will be denied only where an officer is convinced he or she is a gang member. Officers recognize that there are tattoos that are associated with gangs but are worn for cultural reasons.
This term is used to indicate that the government has to take further action before deciding an application. This could include verifying USC status of a petitioner, completing a security check, or investigating a joint sponsor who is known to be sponsoring multiple aliens. There is no set time frame for resolution of cases in this category.
Removal vs. Return
The burden is on the applicant to establish his/or her admissibility. In cases where an applicant was stopped or arrested by ICE or CBP officers, the applicant may need to prove that it did not result in a removal. Many stops by CBP result in voluntary returns, as opposed to a formal removal. While CDJ does have access to data bases to check on arrest outcome, due to volume of work, the burden is on the applicant to establish what happened. Some applicants may need to do a FOIA of their CBP file.
Cancellation of Entry Document
If a border crossing card or other document is cancelled at the POE, the way to appeal that decision is to go to consulate and reapply, arguing that CBP was mistaken.
When a joint sponsor is fulfilling the financial requirement using his or her income, but has also filed a joint tax return, the joint sponsor must document and indicate how his or her income is sufficient. Otherwise, the consulate will request an I-864A from the joint sponsor’s spouse.
When a principal beneficiary has consular processed and the derivative named on the petition is now ready to immigrate, the derivative may go directly to the consulate and request an appointment. The derivative does not need to process through the NVC. When the principal beneficiary has adjusted status, the principal will need to file an I-824 so that the derivative can begin consular processing.
Return of Original Documents
If the applicant wishes to retrieve the original documents submitted with the IV application, he or she just needs to bring copies of those documents to the interview and request the originals.
The consulate continues to allow F-2A beneficiaries to opt out of automatic conversion to the immediate relative category when the petitioner naturalizes. This could be advantageous in situations where the unmarried child under 21 has a derivative child. If the F-2A converted to immediate relative, the child would not be considered a derivative. This opt-out does not apply to F-2A children who are over 21 years of age (but under 21 using their CSPA age). The BIA has held that these children cannot opt out of conversion to the F-1 category.
Abandonment of Residency by LPR Petitioner
If an LPR petitioner has not been living in United States for over a year, this may be revealed when completing and filing the affidavit of support. The consulate may become suspicious that the petitioner has abandoned residency. CDJ may insist that LPRs with old, expired green cards obtain current ones.
Payment of Visa Fee
An immigrant visa applicant will be required to pay a new visa fee after one year, unless the delay is caused by the government. For example, if the applicant is found inadmissible and promptly files a waiver, and final adjudication lasts longer than one year, the delay is due to the government and there will be no requirement to pay a new fee. But if the applicant waited unnecessarily to file the waiver or otherwise caused the delay, then a new fee may be required.
Mexico City Processing
F-4 and Hague adoption cases are now processed through the consulate in Mexico City. There are no plans to change or expand this. The IV unit in the DF is very small – just three officers and one panel physician. Applicants cannot file I-601 waivers locally with the USCIS office.
Electronic Notification of Appointments
CDJ does not have the software to provide electronic notification of appointments set by the consulate. They are working on being entirely paperless, but they are not there yet.
Restarting Case After Triggering Permanent Bar
Applicants who have attempted or successfully reentered the United States after acquiring one year of unlawful presence have triggered the “permanent” bar under section 212(c). They must remain outside the United States for ten years before qualifying to submit a waiver. After the ten-year period is completed, they must file a stand-alone Form I-212 in the USCIS district office where they intend to reside. They should include proof of being outside the U.S. for the ten years. Ms. Holt recommended that the applicant be advised at the onset to establish a paper trail of life in Mexico that includes working and paying into the Mexican Social Security system. Where a visa applicant has not triggered the permanent bar, but has triggered the ten-year bar due to one year of unlawful presence, he or she can submit the waiver immediately after being found to be inadmissible. If that waiver is denied, once the ten-year bar period has expired, the applicant can contact the CDJ call center and re-schedule a new IV appointment.
USC Spouse Dies After Case at Consulate
If the USC spouse/petitioner dies after the IV applicant has left for the consular interview, the officer has the discretion to convert the approved I-130 to an I-360. The applicant just needs to present the death certificate. This does change the visa classification from IR to IW, and any IR children would become derivatives. If the USC spouse/petitioner dies after the visa issuance but before the intending immigrant has entered the U.S., the widow(er) should return to the consulate with the death certificate for reissuance of the visa in the correct category.
CDJ will not process a K-3 application if the I-130 has been approved. K-3s are self-scheduled because they are technically nonimmigrant visas. If a K-3 applicant is denied and fails to take action within one year, they risk termination of the I-130.
Notes from the Consulate Tour:
Medical Clinic (CMI, Clinica Médica Internacional)
The clinic is open Monday through Friday starting at 6 a.m. Walk-in hours continue until 11 a.m. Immigrant visa applicants do not need an appointment at the clinic, but they must have a visa interview appointment to check in. The clinic suggests that applicants come for their medical exam at least one day prior to the visa interview, and that applicants between the ages 2 and 14 come for the exam at least four working days before the exam to leave enough time for TB test results. All visa applicants, regardless of age, must have a medical exam.
After checking in, applicants receive a bar-coded bracelet with a color corresponding to the day of the week. Children under age 18 must be accompanied by a parent or by an adult with a notarized letter from the parent authorizing the adult to accompany the child.
The clinic staff reported that there is a high level of fraud in vaccination records from Mexico, and that the clinic staff is trained to recognize fraud indicators, including dates, sequence and names of vaccinations that would indicate that the record is not authentic. Reportedly, some applicants also are reluctant to show proof of vaccinations in the U.S., based on advice from their lawyers to not show records demonstrating physical presence in the U.S.
Women and men are examined in separate areas of the clinic. The clinic waiting room plays information videos about the medical examination and about avoiding immigration scams outside the consulate.
Ms. Holt explained that the overall medical exam is valid for one year, but the TB results are only valid for six months. For this reason, visa applicants who are delayed beyond six months before being approved for a visa may need to retake all or part of the medical exam.
There are two medical clinics and they are both within a block of the consulate. The other clinic is called Servicios Médicos. They both operate with the same hours and fees, which are posted on the CDJ website. Currently, medical exams for applicants over age 15 cost $190, and for those under 15, the fee is $135. An 11 percent tax is added to the cost of the exam. The examination fee does not include the cost of any required vaccinations. At the CMI clinic, staff estimated that the maximum vaccination fee that could be incurred is $400.
Application Support Center - Centro de Atención a Solicitante
The ASC is adjacent to the consulate in a plaza with many businesses catering to the visa applicant crowd, including many with storefronts advertising waiver preparation services. The ASC provides biometrics to both NIV and IV applicants, who must show their visa appointment letter in order to be served. Applicants arriving at the ASC first go to a reception desk to check-in by showing the appointment letter, a passport, and a DS-160 or DS-260. The check-in process also includes confirmation of the chosen DHL location, which cannot be changed after the ASC appointment. After check-in, it generally takes no more than 7-10 minutes to complete biometrics. Everyone, regardless of age, is photographed, and biometrics are taken of all visa applicants ages 7 and older.
Visa applicants can go to the ASC for biometrics on the same day as the visa appointment if necessary. The ASC is open Monday to Friday from 7 a.m. until 5 p.m., and on Saturday from 7 a.m. until 2 p.m.
Waiting Room - Salon de Espera
All visa applicants are directed to report to the waiting room adjacent to the consulate approximately one half hour before the scheduled appointment time. The waiting room is open from 6 a.m. until 5 p.m., and provides various services, including information about the interview and warnings about avoiding immigration scams by vendors selling services and documents outside the consulate.
Official greeters escort visa applicants into the consulate at the appointed time for the visa interview. The applicant's family may remain in the waiting room. Other services include a snack bar, information videos, and lockers to leave items that may not be brought into the consulate.
There are two information windows at the entrance to the consulate and they are open on Mondays from 7 a.m. to 4 p.m., and Tuesday to Friday from 7 a.m. until 1 p.m. Window A is for all services and Window B is for U.S. citizens, but it will provide information services to all if there are no U.S. citizens on line. Services provided at the information window include reprinting visa appointment letters (our tour guide reported that this accounts for 70 percent of the inquiries); showing up for the appointment without a medical (appointment can be rescheduled there so that applicant can do medical exam); and returning for new sealed immigrant visa packet when the applicant mistakenly opens the visa packet before entering the U.S.
Applicants escorted from the waiting room receive a four-number ticket upon entering the consulate. There are separate outdoor, covered waiting areas for immigrant visa and non-immigrant visa applicants, and consular employees recently took up a collection to have some toys put in each area. Applicants are seated in the outdoor waiting areas until their ticket number appears on mounted screens, which direct the applicant to enter the building and go to the indicated numbered window. In some circumstances, where an applicant has to pay a visa fee, a cashier window will be the first stop. Most applicants, however, will first be directed to a document review window, where the applicant will hand in the medical exam results, photos, and passport. For MEP cases (IR and CR), the applicant will have submitted all documents electronically, so all document originals now have to be submitted.
On days with extreme temperatures, elderly applicants and applicants with children will receive an expedite ticket at the entrance to the consulate that will allow them immediate entry to wait indoors, bypassing the outdoor waiting area.
Families receive a single ticket for their visa interviews. In the event that the NVC did not schedule all family members together, the family may nevertheless show up together and go to the information window to request that the cases be consolidated. That request can be accommodated as long as the entire family is ready to proceed (e.g., all have their medical exams).
All foreign service nationals at the consulate interviewing applicants have to be "applicants for a day," as part of their training. They go through a complete mock experience of appearing at the consulate for a visa interview.