By Susan Schreiber
On April 17, 2014, CLINIC was pleased to welcome Faye Frye and Ju Suh of the Nebraska Service Center (NSC) to speak to participants at our two-day training in Omaha on inadmissibility grounds and waivers of inadmissibility. The NSC adjudicates I-601 waiver applications filed abroad after the immigrant visa applicant has been found to be inadmissible on a waivable ground. The NSC does not adjudicate I-601s filed in conjunction with an application for adjustment of status; those are adjudicated by the local USCIS district office. The NSC does not adjudicate the provisional waivers, Form I-601A; those are adjudicated by the National Benefits Center (NBC). Ms. Frye, an immigration services officer, and Mr. Suh, a supervisor, explained the waiver adjudication process and responded to questions on a wide range of issues. Highlights of their remarks are summarized below.
1. Notification of Inadmissibility and Application Submission. Immigrant visa applicants who are found inadmissible on waivable grounds will receive waiver submission instructions along with the refusal notice. The I-601 waiver form, and an I-212 if applicable, are filed with the Phoenix lockbox and then routed to the NSC. If the applicant qualifies for expedited adjudication and there is a co-located USCIS office at the consulate, the applicant can file the waiver application abroad. If the need for expedited adjudication arises after the application has been filed with the NSC, make the expedite request by contacting the National Customer Service Center, which will forward the request to the NSC.
2. Waiver Review. Ms. Frye described the adjudication process as consisting of the following sequence of steps:
- Determining whether I-601 is properly signed. Only the waiver applicant can sign the form, not the qualifying relative.
- Determining if any G-28 form submitted with the application is properly signed by the applicant. If not, it will not be recognized and all case correspondence will go to the applicant's address as listed on I-601, which is usually a foreign address.
- Reviewing the inadmissibility ground or grounds identified by the consulate to determine if a waiver is available and, if so, if a qualifying relative is required
- Confirming that a qualifying relative exists where required for waiver eligibility
- Assessing evidence of extreme hardship to qualifying relative
- Determining whether a favorable exercise of discretion is warranted
The NSC officer cannot reverse a finding of inadmissibility made by a consular officer, but will notify the consulate if USCIS service records contradict the finding of inadmissibility. In that event, the officer will make that communication before adjudicating the waiver. In addition, the NSC will consider all grounds of inadmissibility identified by the consulate, regardless of which boxes the applicant marks on the I-601. It is possible, therefore, for an applicant found inadmissible for unlawful presence and for smuggling, to be granted a waiver for both grounds of inadmissibility even if the applicant only noted unlawful presence on the waiver form, assuming it was otherwise apparent that the applicant qualified for a smuggling waiver.
3. Assessment of Extreme Hardship. The speakers noted that the extreme hardship standard is not variable based on the ground of inadmissibility. For example, a person seeking a I-601 waiver for a willful misrepresentation or a crime does not need to show more extreme hardship than a person seeking a waiver for unlawful presence. Ms. Frye described the declarations from the qualifying relative and the applicant and the supporting documents as the most important evidence. The statements should be in the declarant's own voice, and handwritten declarations can be submitted if legible. Ms. Frye also noted that in cases involving medical issues, it is helpful to include the credentials of the medical professional who wrote the assessment. She also encouraged applicants to include a cover letter – not a legal brief – that sets forth the facts in the case and explains why the application should be granted.
Crime-based inadmissibility is subject to a higher hardship standard when the underlying crime is deemed to be violent or dangerous. Ms. Frye noted that adjudicators struggle with this issue and often consult with the NSC legal department for an opinion on whether the crime triggers the "exceptional and extremely unusual" hardship requirement. Where the adjudicator determines that the higher standard applies, the applicant will receive an RFE to that effect, and be asked to submit additional documentation to satisfy the standard. Ms. Frye reported that at least one waiver has been approved based on exceptional and extremely unusual hardship.
4. Exercise of Discretion. Waivers may be denied in the exercise of discretion even where extreme hardship is established, although the presence of extreme hardship is viewed as a favorable discretionary factor. Advocates are encouraged to try to counterbalance each negative factor in a case with evidence relating to a positive factor. For example, they could show rehabilitation for someone inadmissible for a crime. Unlike the extreme hardship requirement, the exercise of discretion is impacted by the underlying inadmissibility ground, making it harder, in general, to obtain a favorable exercise of discretion for crime-based inadmissibility.
5. Communicating Decisions to the Consulate. The NSC sends notifications to the consulate concerning I-601 and I-212 waiver decisions every Tuesday and Thursday. Generally, these reports are sent to the consulate within a few days of the waiver adjudication. All consular reports are made at the same time and with the same process; the process of reporting decision outcomes does not vary from consulate to consulate.
6. Adjudication Times and Approval Statistics. It is now taking about six months to adjudicate waiver applications, which represents improvement from a recent eight-month backlog. The NSC has doubled its staff and hopes to reduce adjudication time to four months.
There are no quotas set for approvals or denials of waivers; they are all decided on a case by case basis. An RFE will always be issued before a denial, unless the applicant is statutorily ineligible for a waiver (e.g. inadmissible due to false claim of U.S. citizenship).
The speakers reported that USCIS is not releasing statistics on waiver approval rates, citing concern that a denial rate perceived as high will discourage some people from filing. Ms. Frye also noted that there is no current tracking of I-601 waiver approvals as they relate to specific grounds of inadmissibility or multiple grounds of inadmissibility, nor is the NSC tracking the number of motion to reopen or reconsider leading to decision reversal.
7. Quality Control: Waiver adjudication officers received a ten-day training, followed by monthly meetings to discuss issues and a monthly quality review. All denial decisions are reviewed by supervisors, who also check on percentages of denials and RFEs among officers to monitor consistency of adjudications.
Ms. Frye reported that there is no cross-communication between NSC and NBC with respect to comparing adjudications of I-601 and I-601A applications; these adjudications processes are kept separate. Although no statistics are kept on misfiled applications, filing the wrong form is likely to result in a denial. Where the right form is filed in the wrong place, however, that may be remedied by a transfer to the correct USCIS office.
8. Practice Tips
- Make sure the waiver application and the G-28 are signed by the waiver applicant.
- If possible, include a copy of the DOS refusal worksheet with your submission; it doesn't matter if it's not in English.
- Paginate all of the waiver application submission, starting with the cover letter.
- If you use color page separators between various sections of supporting documents, do not use card stock quality paper.
- Do not include any multi-media evidence (e.g. video or audio recordings); these will not be considered.
- Do not include massive amounts of country condition information for Mexico, and focus any country condition on the area where the applicant lives. It is not necessary to submit full DOS country reports or large volume of newspaper articles.
- Do not file the I-601 prematurely, before the consulate makes a finding of inadmissibility. Where that does happen, the NSC will send an RFE, and if the applicant is in fact found inadmissible at the consulate during the RFE response period, that can remedy the premature filing. Otherwise, the application will be denied.
- It is not necessary to document the citizenship or immigration status of family members unless they are tied to the hardship claim.