On March 16, 2017, CLINIC was pleased to welcome staff from the National Benefits Center to our two-day training on inadmissibility grounds and waivers conducted in Kansas City. In a presentation and Q&A session on provisional waivers, Assistant Center Director Robert Blackwood, along Section Chiefs Crystal Kelley and Dale James, reported on how the provisional waiver adjudication process has changed with the new extreme hardship guidance and the elimination of the “reason to believe” assessment of other grounds of inadmissibility. Following the training, the NBC prepared written responses to questions submitted by CLINIC, found below.

 

How many officers are currently assigned to adjudicate I-601A applications?

The authorized resource allocation for the adjudication of the provisional unlawful presence waiver application is 127 full-time Immigration Services Officers (ISO), and the NBC is fully staffed.

 

What sort of training do they receive?

The NBC provides comprehensive training on adjudication of the Form I-601A, including instruction on the application, systems used in the adjudication process and background checks, expansion of provisional unlawful presence waivers of inadmissibility, and extreme hardship.

 

Have officers received special training in the final guidance defining extreme hardship?

All officers are required to complete the official USCIS training on the extreme hardship policy.

 

Has your division received an increase in applications since the provisional waiver program was expanded at the end of August?

Yes; there has been an increase in receipts following implementation of the expansion rule on August 29, 2016. USCIS received the following receipts:

 

Month	Receipts
April 2016	4499
May 2016	4786
June 2016	5347
July 2016	4457
August 2016	5269
September 2016	3385
October 2016	5282
November 2016	5978
December 2016	7378
January 2017	8045
February 2017	5265
March 2017	5520

What is the current processing time from the date you receive an I-601A? What are your goals?

The NBC was processing Forms I-601A as of October 11, 2016 on February 28th, 2017. The NBC processing goal for the provisional waiver is 90 days.

 

Do you anticipate any staff increases or changes?

NBC is currently staffed at the authorized level. We do not anticipate any increase or additional changes.

 

Have you received any indication that the new administration is considering ending the provisional waiver program or modifying it in any way?

No, USCIS has not received any indication that the program is being ended or modified.

 

Have you received any indication that the new administration is considering changing the current guidance defining extreme hardship?

No, USCIS has not received any indication that the current extreme hardship guidance will be changed.

 

Is it your experience that in most cases it is easier for the qualifying relative to establish extreme hardship based on anticipated relocation hardship rather than separation hardship?

Hardship determinations are based on an individual’s situation and the evidence submitted. USCIS does not track approval or denial rates based on separation or relocation.

 

Is there ever an advantage to an applicant claiming both separation and relocation hardship? Would the applicant have to establish extreme hardship in either situations or only one?

Please consult the USCIS Policy Manual, Volume 9, Part B, Chapter 4, Qualifying Relative, Section B, Separation or Relocation for information about separation and relocation.

 

Are there situations where your agency would ever approve an I-601A in a case where the applicant will be found inadmissible by the consulate due to fraud, criminal conduct, or smuggling?

The expansion rule implemented on August 29, 2016 removed the “Reason to Believe” standard. Therefore, the NBC will only evaluate whether the applicant meets the eligibility criteria relating to the waiver of the unlawful presence ground of inadmissibility, has shown extreme hardship to a qualifying relative and merits a favorable exercise of discretion. We review each case independently. Derogatory information may impact the determination of whether the applicant warrants a favorable exercise of discretion; approval of an I-601A by USCIS does not mean that the Department of State (“DOS”) may not find an I-601A applicant inadmissible on grounds other than unlawful presence. If DOS finds an I-601A applicant inadmissible on grounds other than the unlawful presence ground, the I-601A approval is automatically revoked.

The I-601A only indicates that these will be considered as negative discretionary factors. The NBC does not make inadmissibility determinations when adjudicating a Form I-601A. Any negative factors will be weighed against the favorable factors to determine whether the applicant warrants a favorable exercise of discretion.

 

Has the elimination of the “reason to believe” basis for denial of an I-601A resulted in a higher approval rate?

Since the implementation of the new rule, the NBC has seen an overall increase in the approval rate.  In July, the NBC had an 84.24% approval rate compared with February 2017 when the NBC had a 96.22% approval rate. Changes in approval rates can be due to many factors, USCIS cannot definitively determine the underlying cause for the increase.

 

What is the current approval rate of I-601A applications?

As of February 2017, the approval rate for the Form I-601A is 96.22%.

 

Do you know how that compares with the NSC’s approval rate of I-601s based on unlawful presence?

As the Form I-601 covers multiple grounds of inadmissibility and the I-601A only covers the unlawful presence ground, we do not believe that the approval rates between the two should be correlated.

 

Is the USCIS 2011 Guidance on issuance of an NTA still considered in effect?

Yes, this guidance is still in effect.

 

If not, has any guidance been issued related to whether provisional waiver denials will trigger issuance of an NTA?

Additional guidance regarding NTAs has not been issued at this time.

 

Do you have any advice for practitioners in how long their cover letters should be or what they should cover in them?

We cannot provide specific advice on how long or what should be contained in a cover letter. In general, cover letters should thoroughly summarize the claims of extreme hardship to the qualifying relative and how the QR will experience extreme hardship. An index of the supporting evidence submitted is also helpful.

 

Do you have any advice for practitioners in how to present the documentation supporting the application?

We cannot provide specific advice on how to present documentation supporting the evidence. Generally, an index of submitted evidence is helpful.

 

Are the current State Department Travel Alerts issued for various states in Mexico treated as a “particularly significant” hardship factor?

The policy manual Volume 9: Waivers, Part B, Chapter 5: Extreme Hardship Consideration and Factors, E. Particularly Significant Factors outlines the various factors that would weigh heavily in favor of a finding of extreme hardship, including DOS travel warnings. If the warning recommends against travel to a particular country or region, this factor may weigh heavily in support of a finding of extreme hardship.

 

Are they given the same weight as Travel Alerts for the countries of El Salvador and Honduras?

All State Department Travel Alerts are considered based on the nature and severity of the given condition in the designated country at the time of adjudication.

 

What about the classification of TPS for Nicaragua?

TPS for Nicaragua is a factor that is considered with all other factors in their totality for each case.

 

Are there any recommendations you would make to practitioners representing I-601A applicants from Mexico and Central America?

There are no specific recommendations that USCIS would make for any specific country or region.