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Update from the NBC on Provisional Waivers

Update from the NBC on Provisional Waivers

By Charles Wheeler and Susan Schreiber


On September 26-27, 2013, CLINIC conducted a two-day training in Kansas City on provisional adjudication of unlawful presence waivers.  The training included a presentation by Robert Blackwood, Assistant Section Director for Adjudications at the National Benefits Center (NBC), who gave an update on the waiver adjudication process at the NBC and answered questions from training participants.  A summary of the information he provided appears below.

NBC Background

The NBC serves mainly as a pre-processing center for applications adjudicated at USCIS field offices, including I-485 adjustment applications and N-400 naturalization applications. In addition, the NBC adjudicates certain applications and petitions to completion, including I-90s, immediate relative I-130 petitions, interview-waivable adjustment applications and, since March 4, 2013, I-601A applications for provisional waivers.  In addition to its facility at Lee Summit, MO, the NBC has expanded to include a new facility in Overland Park, KS.   Approximately 500 government employees and 800 contract workers staff the Lee Summit site. Currently, the NBC facility in Lee Summit employs approximately 550 government workers, and 800 contract workers.  A new NBC facility in Overland Park, KS is expected to employ 400-500 government workers and a similar number of contract workers.

I-601A Adjudication

The NBC is divided into eight divisions.  Division 1 is responsible for I-601A adjudications and   is staffed with between 45-50 adjudicators and 5 supervisors.  When fully staffed, the division will have 6 supervisors, who in turn report to 2 section chiefs.

All I-601As are filed at the Chicago Lockbox, which reviews submissions under its own business rules that address document sufficiency.  If rejected, an application should be accompanied by an explanation of deficiency.  If accepted, the Lockbox creates a case receipt file and forwards it to the NBC, where it goes through its own initial processing checklist.  NBC contract staff goes through their checklist to determine if the application is complete.  If staff determines there are missing documents, it issues a Request for Evidence (RFE); otherwise, it will schedule the applicant for a biometrics appointment. When the biometrics and the name check results come back, the application is transferred to the “JIT" ("Just in Time”) shelves and is considered ready to be adjudicated.

Supervisors assign cases to adjudicators when they are ready to be adjudicated. When they receive a file, the adjudicator first looks for basic eligibility – name check and biometrics response, national security issues – and if there is a “hit,” the file is forwarded to a security clearance team for resolution.  For cases that pass security clearance or do not have “hits,” the adjudicators follow a “processing checklist” sheet, which guides them through the process of determining statutory eligibility (e.g., USC qualifying relative) and whether the applicant has satisfied the extreme hardship standard.  The adjudicator makes notes on the processing checklist, which is helpful in making the decision and for later supervisor review. If the case is denied, the file is sent to the National Records Center, where it will be stored.  If it is approved, the file will be sent to the Texas Service Center.  The TSC holds on to the case files so they can be matched up later after the applicant immigrates.  The NBC sends the applicant and the representative the written approval or denial decision.

The NBC sends the National Visa Center (NVC) an electronic data report on I-601A receipts on a daily basis, so that the NVC can stop processing the immigrant visa application until there is a decision on the waiver application. A "decisions" report is then sent to the NVC every week, to inform the NVC of waiver application outcomes so that the NVC can then proceed with IV processing. The NBC does not send the actual I-601A decision to the NVC; it only sends notification of whether the I-601A was approved or denied. If the NBC denies the application because it has a “reason to believe” the applicant might be inadmissible under another ground, it only informs the NVC that the waiver application was denied.

For the first two months of provisional waiver adjudication, all applications were reviewed by division supervisors to ensure that the appropriate decisions were being made. Now, all denials are reviewed by the supervisor and approvals only spot-checked.  If a supervisor has questions or concerns about a particular decision, the supervisor is not supposed to tell the adjudicator how to rule in a particular case.  Instead, the supervisor should encourage a dialogue with the adjudicator to find out more about the decision recommendation.  If there is still disagreement as to whether the application should have been approved or denied, the supervisor may go to one of the section chiefs for further guidance.

Every week a report is generated indicating how many applications were adjudicated.  Based on those reports, the process is becoming more efficient.  The NBC is in communication and is sharing data with the State Department to determine whether I-601A applicants who were denied were later approved by the consulate through an I-601 waiver.  It is looking specifically to see if applicants denied based on the “reason to believe” standard were found by the consulate to be inadmissible only for unlawful presence and later approved through an I-601. It is also seeking the opposite type of statistics: whether applicants whose I-601As were approved were later denied by the consulate due to a finding of inadmissibility on a ground other than unlawful presence.  After only six months of provisional waiver adjudication, the statistical evidence is not yet meaningful to draw any conclusions on these issues.

If an I-601A applicant who is denied elects to re-file, the NBC will pull the original application and check it against the new application.

Both ICE and EOIR seem supportive of the provisional waiver process because it allows them to clear cases off their active docket where the respondent is likely to receive an immigrant visa.

Statistics

The NBC has provided the following numbers based on I-601A applications received or adjudicated from March 4 – September 14, 2013:

23, 949 applications sent to Lockbox

17,996 applications accepted by Lockbox

5,953 application rejected by the Lockbox

The reasons for rejection could include no applicant signature, no proof of I-130 approval, no proof of NIV fee paid, or applicant is under 17.  The number of applications received may include re-filings by applicants whose cases were initially rejected at the Lockbox.  

The NBC has 12,098 applications in the pipeline, with approximately 2,300 ready for processing. It is averaging approximately 600 applications/week, so it has about four weeks of applications to adjudicate.  With 45 adjudicators currently working these cases, this averages out to each adjudicator handling about 13 applications per week, or about 2.6 per day.  Mr. Blackwood noted that adjudicators have other work responsibilities, including time spent in trainings and at meetings.

The NBC has issued the following decisions:

3,497 approvals (59%)

2,292 denials (39%)

103 admin closures (application returned for various reasons, e.g., filed I-601 instead of I-601A) (2%)

Although applications have been denied for various reasons, the highest number of denials – 1,093, or 48% of all denials – is for "reason to believe."  The second highest number – 937, or 41% of all denials – is for failure to establish extreme hardship.  Other reasons for denial include abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and applicant subject to existing or final order of removal.

At present, the average time between receipt of an application at the Lockbox and decision issuance is 103 days.  The goal is to reduce the adjudication time to 90 days. The NBC adjudicators were working at that pace initially until the “reason to believe” denials became a controversial issue.

Reason to Believe

Mr. Blackwood explained that the provisional waivers working group developing the I-601A regulations and procedures for processing wanted to keep inadmissibility determinations a function of the Department of State, so that USCIS officers would limit their consideration to waiver adjudication. This is because the USCIS has no authority to determine admissibility in a case to be decided by the consulate after the applicant has left the United States and appeared for the interview. In other words, the USCIS did not want its adjudicators analyzing whether the applicant was inadmissible on grounds other than unlawful presence. At the same time, the USCIS did not want to approve I-601As and have the applicant be denied at the consulate for another ground of inadmissibility.

That was the rationale for developing the “reason to believe” standard, where the adjudicators would make a very quick assessment based on the name check and biometrics results as to whether the applicant might be inadmissible on another ground. Under this standard, adjudicators are instructed to deny all applications involving a criminal conviction, regardless of what the conviction is for, when it occurred, or whether it falls within a recognized exception to inadmissibility, like a petty offense.  If  the fingerprint check resulted in a “hit” during an IDENT database search, and it revealed a conviction, then the application was denied under the “reason to believe” standard.  Similarly, if there was an inconsistency in the name or date of birth of the applicant and that provided during CBP processing for voluntary departure after an arrest at the border, the applicant was denied for “reason to believe.”

As the NBC staff soon realized, this broad application of the "reason to believe" standard has led to a high denial rate.  Given this development, Mr. Blackwood announced that, as of six weeks ago, NBC stopped issuing any "reason to believe" denials and is suspending adjudication of cases where this issue is present while USCIS and DOS reconsider the current policy and decide how to proceed in the future.  During this time, cases that involve a potential "reason to believe" issue are being held in abeyance, with no action taken on the case; currently about 1,300 pending applications are affected by this issue and will not be adjudicated until there is further guidance on the reason to believe policy.

Mr. Blackwood noted that if the reason to believe standard is changed so that not all of the denied cases would warrant denial under revised interpretation, the NBC will also consider whether to apply any new policy retroactively and reopen denied cases sua sponte.

While there is no mechanism to appeal a denial or seek reconsideration, the NBC can reopen a case on its own if it believes a denial was made incorrectly. Mr. Blackwood indicated during his presentation that denials under the reason to believe standard that seem clearly wrong could be brought to his attention and he would pull the file to see if the agency made a mistake.  The examples he gave where the standard might have been misapplied include cases where the applicant’s name and date of birth appear inconsistently in DHS data files, but the inconsistency appears to be a clerical error or insignificant.  It would not include cases containing criminal convictions, since the agency is waiting for further instruction before reviewing those.  To bring those cases to his attention, send an e-mail to the authors at sschreiber@cliniclegal.org or cwheeler@cliniclegal.org.  Include the name of the applicant, the waiver receipt number, and the “A” number, as well as a brief description of the issue (e.g., month and day of applicant’s date of birth were transposed; applicant’s name recorded incorrectly).

Adjudication of Extreme Hardship and RFEs

Current policy does not mandate that the agency issue an Request for Evidence (RFE) before issuing a denial.  NBC adjudicators will typically issue an RFE if they believe additional documentation will help them reach a decision in a case.  For example, if an applicant claims a health-related hardship, but only submits financial evidence, the adjudicator will issue an RFE.  Or if the applicant claims multiple hardships but submits only evidence supporting one claimed hardship, or weak evidence of hardship, the adjudicator will issue an RFE for the additional evidence.  But if the applicant claims hardship and the officer believes sufficient evidence was presented but that the extreme hardship standard was not met, then the adjudicator can simply issue a denial without issuing an RFE.  In other words, if additional documentation would not add any value to the hardship claim, the NBC will forego issuance of an RFE.  Mr. Blackwood noted that quality control measures are in place because all denials are reviewed by a supervisor. 

Mr. Blackwood explained that RFE response times are set at 30 days so that consular processing is not delayed.  A request for an extension may be considered if there are compelling reasons warranting additional time to respond to the RFE

Comparison with NSC Adjudications of I-601

NBC staff made adjustments to their standards for evaluating extreme hardship that has resulted in more provisional waiver approvals. These adjustments came in the wake of exchanging information and statistical data with the NSC regarding its adjudication of I-601 waivers, as well as reviewing AAO waiver denial reversals.  Mr. Blackwood explained that adjudicators are now assessing extreme hardship to the qualifying relative as impacted by hardships to other family members. As a result, the denial rate has come down and the NBC is approving more applications.  Mr. Blackwood anticipates that the denial rate will continue to go down as adjudicators gain more experience.

Mr. Blackwood also noted that the provisional waiver is more challenging for the applicant, because the hardship to the qualifying relative is prospective, as opposed to the I-601 applicant who has left the United States and whose qualifying relative is already experiencing the hardship.  For this reason, the denial rates will not necessarily be comparable. 

Waiver Submission Format 

Mr. Blackwood encourages applicants to submit a cover letter or brief that summarizes the hardships and helps the adjudicator understand the theory of the case. Submit all supporting evidence that is pertinent, such as a doctor’s letter summarizing medical conditions.  Since the Lockbox removes all tabs and bindings, use some kind of pagination system to help identify and segregate supporting documentation.  Even though the application is scanned at the Lockbox, the original submission is still sent to the NBC; any highlighting of important documentation or color dividers separating exhibits will be retained.  If submitting supplemental information after the application has already been submitted, make sure to include the receipt number and the A#.   Avoid sending multiple pages from the Internet on a specific medical condition (e.g., definition of diabetes) or DOS country conditions reports.

Conclusion

Stay tuned for a formal decision from the USCIS on whether the NBC will modify the way it adjudicates I-601As with respect to the reason to believe standard.  Expect the NBC’s current approval rate (approximately 60%, including reason to believe denials) to increase.

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