By Charles Wheeler
With the USCIS on the verge of publishing a final regulation implementing pre-adjudication of certain waiver applications, attention has shifted to whether nonprofit agencies should be providing this service to their clients. The answer is an unqualified “yes.” Many affiliates have already been representing clients in these matters and wondering how the regulatory change will affect their practice. The answer is “a lot.” Those that are still referring these cases to the private bar should be encouraged to re-think their position, get the necessary immigration law training, and start assisting clients with their waiver applications.
This area of practice does require specialized knowledge in the grounds of inadmissibility, the special procedures for filing waivers, and the factors that establish “extreme hardship.” It can be time-consuming and nerve-wracking. But it is also quite rewarding and an invaluable service to the low-income client community. This article is a brief primer on things to keep in mind when representing clients who will be found inadmissible when they apply for LPR status. It is not meant as a substitute for an in-depth course on this topic; it is simply a brief check-list of pointers for those who are considering expanding their practice or for those who have already ventured into this area.
1. Start with an effective interview. You need to build trust and a positive connection with the client so that he or she feels comfortable revealing personal information. While intake forms and questionnaires are helpful in understanding the basic facts of the case, the information that will decide whether to proceed with a waiver application and its ultimate success will be conveyed through one-on-one conversations between you and the client. Take the time to build this connection.
2. Determine if the client is inadmissible and eligible for a waiver. To counsel the client effectively, you must be thoroughly knowledgeable of the law. This means understanding how the various grounds of inadmissibility are interpreted by the agency and the courts. What may appear to be fraud, for example, may not qualify as fraud for immigration purposes. Does your client qualify for an exception? Once you have determined that the client will be found inadmissible for one or more grounds, determine if there is a waiver that is available. Does the client satisfy the requirements? Is there a qualifying relative? In too many cases, the client has filed for an immigrant visa or adjustment of status, only to discover in the final stage of preparation that he or she is permanently inadmissible or faces a mandatory 10-year bar.
3. Inform the client and bring them into the process. As the representative, you can only work with the facts that are presented to you. The client must be the one to reveal those biographical facts that will form the backbone of the waiver application. These are the ones that will comprise the heart of the declarations and determine the hardship factors. Stress the importance of what will happen should the waiver be denied and impress upon the client the need to assist you in gathering letters and other documentary evidence. The client will be the one to reach out to other family members, neighbors, employers, church officials, etc. You do not have the time to be tracking down all of these documents. Unless the qualifying relative understands the impact of losing the waiver, he or she will not be able to write a compelling declaration describing the hardship. This will be particularly true for pre-adjudication of waivers, where the applicant is remaining in the United States while the waiver is adjudicated.
4. Determine a theory of the case. Every waiver case is different. Your job is to distinguish this case from all the other ones the adjudicator has seen, as well as describe why this one meets the standard for approval. Remember that the applicant must establish two things in order win: (1) the qualifying relative cannot accompany him or her to the foreign country, and (2) the qualifying relative cannot remain in the United States without the applicant. It is not enough that the qualifying relative has established one – he or she must establish both. Summarize why this case is different in the first paragraph of the cover letter. Think about how you are going to summarize this case as you talk to the client and decide a winning theory.
5. Identify all the possible hardship factors and prioritize them. Take all the possible hardship factors, assign them a weight, prioritize them with strongest coming first, and then weave them into a compelling story. It is not enough that the applicant has identified various pre-existing hardships, even if they are severe. He or she must establish why they would get worse if the applicant were separated from the qualifying relative. Describe the “nexus” between the applicant’s residing abroad and the qualifying relative’s increased suffering. Remember that you don’t need a single, overwhelming hardship factor in order to win. You can have several ones that in the aggregate push the case over into the “extreme hardship” category. The accumulation of various hardship factors can be easier to identify and establish than proceeding with that special one that is rare and atypical.
6. Decide which documents will support the hardship factors and how you will obtain them. Every hardship factor must be supported with documentary evidence. Most waiver denials are based on the failure to provide any back-up for the alleged hardship. This evidence could include doctor’s records, psychologists’ evaluations, school reports, financial data, country reports, etc. Some of these documents will be readily available, while others will take research and creativity. It is relatively easy to prove the citizenship/immigration status of close family members residing in the United States, the qualifying relative’s community ties, the children’s success or difficulties in school. But how do you establish the unavailability of certain medical treatment in the foreign town or city where the applicant will reside? How do you prove that the qualifying relative would not be able to find comparable employment abroad? How do you establish the lack of quality education for the qualifying relative’s minor children in that foreign country? There are websites that can help uncover this information, as well as the collective wisdom of colleagues who practice in this area. Learn how to tap into this reservoir.
7. Submit effective declarations from the applicant and the qualifying relative. Writing an effective declaration is a special skill. Most practitioners have the client write a first draft, and then they polish it. The declaration must retain the voice of the declarant, but it has to be intelligible, credible, detailed, and convincing. It must show some emotion. Every waiver application should contain at least two declarations – one from the applicant and one from the qualifying relative – and they must be both internally consistent and supported by the documentary evidence. Decide which declaration will cover which hardship factors or biographical information, depending on which person has the most knowledge of the issue. The declarations should support each other without being repetitive. Use a chronological approach to setting forth facts and family history.
8. Incorporate hardship to all family members, but filter it through the qualifying relative. Only the hardship to the qualifying relative – not to the applicant and other family members – counts. Don’t be restrained by this requirement. Simply channel the hardship that will be experienced by the children or the applicant through the qualifying relative. Get used to writing phrases such as “it would pain me to see my child suffer…” Include photos of the entire family, letters from the children, psychological evaluations of key family members. Their suffering will compound that experienced by the qualifying relative.
9. Don’t forget to include discretionary factors. Strong cases can lose if negative discretionary factors, such as criminal activity, are not addressed. The reverse is also true: borderline cases can turn into approvable ones by stressing the positive factors: U.S. citizen children, aging parents that depend on the care of the qualifying relative or applicant, community involvement, volunteer activities, payment of taxes, and other evidence of good moral character. Every waiver decision includes a discussion of these discretionary factors. Anticipate this discussion and guide the adjudicator to the right decision.
10. Package the application well. Appearance is important. Start with a crisp and brief cover letter introducing the parties, summarizing the hardships, and describing the theory for why the application should be approved. You only have one opportunity to make a good first impression. Organize the documents and include an index of exhibits. This will serve as a roadmap for the adjudicator and explain why each document is being included and which hardship factor it supports. Put the strongest hardship factors and documents first, with the weaker ones coming last. More documentation is not necessarily better, if you have included enough to support the statement. Your argument does not get stronger through repetition or voluminous documentation. Know when you have packaged a case that leads the adjudicator to the conclusion you are seeking and then trust your instincts.
These are just a few of the tips we cover in our onsite and online courses on filing effective waivers. They are based on years of experience training in this area and our reading hundreds of decisions from the USCIS and the AAO. Through training and practice, you can learn to develop and incorporate these skills into successful representation.