I-601 Waivers And Extreme Hardship: Strategies For Writing A Convincing Narrative For An Application For Waiver Of Grounds Of Inadmissibility
Under the Immigration and Nationality Act of 1996 are various provisions for the I-601 Application for Waiver of Grounds of Inadmissibility, formerly titled Application for Waiver of Ground of Excludability. This memo addresses the structure and content of an Application for Waiver of Grounds of Inadmissibility under INA § 212(a)(9)(B)(v), 212(h), and 212(i). It highlights the merits of various arguments often proffered in the argument of Extreme Hardship.
If you prefer to charge a flat fee as I do, assume that this will take 20-40 attorney hours for most cases and charge accordingly. A well-prepared waiver application is a major undertaking.
What can be expected from different Offices?
The greatest factor in predicting whether a given waiver will be approved is where it's filed. This factor is more important than any hardship argument or the ground of inadmissibility. If a client is currently in the US and is trying to decide whether to attempt the I-601 process abroad counsel must consider where the I-601 is being filed in order to properly advise the client. Because the standard at the different offices can change depending on who is currently serving as the OIC, and because the OICs are replaced every few years, I have elected not to give descriptions of the different offices in this memo as the information may be outdated a week after it's posted. Nonetheless, it is very important to contact other attorneys to learn as much about a given office before preparing the waiver or before sending your client out of the country to voluntarily attempt the process. Some current information on the different offices may be found on my website www.visacentral.net.
Waiver Pilot Program in Ciudad Juarez
Beginning March 6, 2007, I-601 waiver applicants in Mexico benefit from the Waiver Pilot Program in which they may be able to obtain waiver approval less than 48 hours from the time of filing. This is a very exciting program as it makes the process much more practical for many applicants who normally would be unwilling or unable to leave their families, especially small children, for an extended period of time in order to go through the waiver process voluntarily.
At the K or immigrant visa interview, once the alien is found inadmissible, he/she will be able to file the I-601 at an Infopass appointment at the consulate as early as two days following the interview. The waiver packet will be adjudicated within 48 hours, sometimes immediately. If it is clearly approvable, the alien will be able to get his/her K or immigrant visa within a few days after that. So, whereas before an applicant had to remain in Mexico for the better part of a year while the waiver was adjudicated, now they may only need to wait a week or two.
In advance of the consular interview appointment, you may schedule the Infopass appointment so you can be sure it takes place soon after the consular interview. USCIS-CDJ recommends that you leave at least two days between the consular interview and Infopass appointment so that the fingerprint check can be completed. I recommend three or four days as waiver cases are necessarily complex cases, which frequently lead to other 'issues' during consular processing. These other 'issues' can sometimes take a day or two to resolve. To make an Infopass appointment, go to the USCIS website and click on the Infopass icon. Don't enter the zip code for the qualifying relative. You want to choose Ciudad Juarez from the drop-down menu. When it asks for a receipt number, put in the consular processing number, which starts with CDJ. Enter the alien's information, not the qualifying relative's. The Infopass appointment cannot be scheduled more than two weeks in advance of the desired appointment date. This is a technical limitation of the system.
At the Infopass appointment, the waiver must be clearly approvable, which means it is now more important than ever to prepare a quality waiver packet for Mexican cases with plenty of supporting documentation. If the packet is not clearly approvable, it will not be denied, but it will be referred to the normal waiver process, which could take six months or more. If your case gets referred, this should be an indication to you that you need to amend the packet to make it stronger. Some cases, no matter how well you prepare, may not be clearly approvable due to the facts of the case. For example, if your client is a convicted felon then regardless of the hardships and the evidence, it is a case that may require more careful consideration.
Those with waiver packets pending prior to March 6, 2007 may not withdraw their pending packets and re-file under the Waiver Pilot Program. If it is found that this is happening, the Program may be terminated for everyone. Those with already-pending waiver packets will see shorter processing times as the CIS office spends less time reviewing expedite requests and more time looking at the pending waivers. It is also an abuse of the Program to make an Infopass appointment at the Juarez consulate for anything other than filing an I-601 waiver packet. Because of the Waiver Pilot Program, your clients should plan to spend at least a week in Juarez.
Can an I-601 be filed within the US?
It is not possible to file the waiver in the US if the alien entered EWI because there is an AOS problem under INA 245(a), which the I-601 will not cure. Also, if the client entered on a K visa and is not adjusting through the K visa petitioner, there is a problem under INA 245(d), which the I-601 will not cure and the alien must file abroad. But if the client doesn't have any problems adjusting under INA 245, it may be possible to file the I-601 in the US. The adjudication of local filings seems to have no rhyme or reason. It all depends on the individual immigration officer who reviews the case. Make the case as strong as possible.
Can Fiance(e)s file as qualifying relative?
Yes, fiancé(e)s can file an I-601. See 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).
How does one file for Deportees?
For aliens outside the US, if the alien needs to file an I-212 and an I-601, file them together at the consulate. Don't file the I-212 at the district office and then file the I-601 at the consulate. 8 CFR 212.2(d). The need to file an I-212 in addition to an I-601 does not mean that a waiver packet will be any different than if a client needs only the I-601. In essence it means another form needs to be completed and another fee paid. However, extreme hardship needs to be proven only once.
How does one file with Multiple Grounds of Inadmissibility?
If the client needs waivers under INA 212(a)(9)(B)(v), INA 212(h) and INA 212(i), only one I-601 form is needed and one waiver packet, and the fee paid once. An extra fee is needed only if the client has a deportation and a I-212 must be filed as well.
If filing at an office other than the alien's home country, it is possible to encounter problems getting the client a visa to enter that third country. If it's Europe, keep in mind that for European Union (EU) countries, there are certain nonimmigrant visas that if issued by any EU country, are honored by all EU countries, even if another EU country has denied the alien a visa before. Contact the US consulate of that country to make sure the client doesn't need a visa from that country.
Most consulates will not take waiver cases for third country nationals unless the client resides in that country. The major exception is the "homeless" case where the US has no consulate in that country and no one specific consulate has been designated for nationals of that country to go to, OR the alien is stateless. If the client has a credible fear of returning to his/her home country, it is reasonable to contact many consulates to investigate which of them might take the case. Contact the consulates directly to ask, or work with the National Visa Center (NVC) when the case is at that point in the process. If Counsel has an opportunity to inquire at many consulates and the NVC assigns a consulate Counsel doesn't want to work with, contact NVC and make a request for a specific consulate. Bear in mind that filing in Canada is not necessarily the best option due to administrative problems in Vermont. Also keep in mind that EU nationals can often live and work in another EU country fairly easily. Juarez has a policy to not take waiver cases for third country nationals unless the client has legally resided in Mexico for one year prior to the interview.
If the alien and qualifying relative approach the attorney prior to marriage and the alien is from a country that does not have a high approval rate for waivers, consider having the clients marry in a third country with a more favorable approval rate and file for a K3, going through consular processing in that third country. According to 9 FAM 41.81 N3(c), this is an option.
How can a case be expedited?
Every client wants his/her case expedited. Making an expedite request on every case interferes with the efficiency of any office and slows down the procedure for everyone. An attorney wants to be a zealous advocate for their client, but try not to make expedite requests unless there is a truly urgent, serious situation. Let the client know at the outset of the representation that your office will not be making an expedite request.
If there is an unusually compelling Level 1 argument and the alien is currently present in the US, reconsider Cancellation of Removal. If the alien is eligible except for the 10-year requirement, explore the possibility of requesting Deferred Action until the 10-year mark. Such an option carries risk, but if its an unusually compelling case, its something to consider.
Things to watch out for: INA 212(a)(9)(C), INA 212(a)(6)(C)(ii) and Medical Exam
Always, always, always confirm a client won't be found inadmissible under INA 212(a)(9)(C) prior to either sending the client out of the country or taking money to prepare a waiver. If the client is not sure whether he/she was formally deported or just refused entry, run an FBI fingerprint check (http://www.fbi.gov/hq/cjisd/fprequest.htm). The FBI report will list all deportations, but if the alien was merely refused entry, the incident will not appear on the report. For clarification on when INA 212(a)(9)(C) applies, see Madeleine Albright's April 1998 cable regarding unlawful presence, which can be foud as AILA Infonet document 98040490. Review sections 35-41. While there is some debate on the subject, the cable appears to clarify that the exceptions to unlawful presence found in INA 212(a)(9)(B) apply to INA 212(a)(9)(C) and that (9)(C) is only triggered upon an entry or attempt to enter without inspection, as opposed to any attempt to enter illegally, following deportation or more than one year unlawful presence in the aggregate. Currently, the policy at the US consulate in Juarez complies with this interpretation.
Always be sure to ask your client if he/she ever claimed to be a US citizen for immigration purposes. This is a permanent ground of inadmissibility for which there is no waiver, INA 212(a)(6)(C)(ii). The US consulate in Juarez is diligent in finding aliens who have committed this particular violation.
There have been some concerns related to the drug history questions asked during the medical exam down in Juarez. Read AILA Practice Alert document 06020110 so you can properly prepare your clients. If the alien reveals virtually any drug experimentation in the past three years, he/she risks a finding of inadmissibility as a drug abuser or addict and will be ineligible to apply for a waiver of that particular ground of inadmissibility. He/she will have to show three years of sobriety. This does not appear to comply with the Foreign Affairs Manual. Direct any complaints to the Centers for Disease Control, Division of Global Migration and Quarantine, National Center for Infectious Diseases, Centers for Disease Control and Prevention, 1600 Clifton Road, Mailstop E-03 Atlanta, GA 30333. If you disagree with the finding, ask the consular officer to file an Advisory Opinion request with CDC. Other than that, there's nothing the Department of State can do for you, and you do not have the option to file the Advisory Opinion request directly with CDC yourself.
How to approach Rehabilitation, Moral Character and Apologies
A criminal waiver can be approved on rehabilitation alone in some cases. Look at INA 212(h) and see the section above regarding evidence of rehabilitation. Other than the criminal waivers, I-601 waivers should focus on the extreme hardship to the relative and not the moral character of the alien. Generally speaking, for waivers of unlawful presence, OICs do not need nor want lots of letters saying what a great person the alien is. However, depending on the facts of the case, it is sometimes beneficial include character letters if there is something extraordinary about the alien's character. Even then, be conscious of the size of the packet and how much the adjudicator is being asked to read.
If the applicant clearly and intentionally violated the law, apologizing for the violation may be a good idea. If the alien is contesting the ground of inadmissibility or thinks he/she didn't do anything wrong (e.g. a 'notario' committed the fraud without alien's knowledge), DO NOT have the alien apologize. An apology is as admission of guilt. In any argument of minimal responsibility for the ground of inadmissibility, apologizing destroys that argument.
Contesting Ground of Inadmissibility
If contesting the ground of inadmissibility, but with a deadline for I-601 submission and/or the belief the challenge to the finding will be unsuccessful, go forward in filing the I-601, stating in the opening paragraph that there is no concession of inadmissibility. Include the argument against the finding in the brief. This may not win over the consulate, but may win over the CIS officer. CIS can't over-rule the consulate's decision on inadmissibility, but if the CIS adjudicator agrees with the argument's reasoning, he/she will take that into consideration when deciding the waiver.
There's nothing in the law that prevents the filing of a Motion to Reconsider or an Advisory Opinion request regarding the finding of inadmissibility, at the same time that the I-601 is filed.
Contact the various offices via phone or email for administrative concerns only. Don't attempt to argue the merits of the case over the phone. Discourage the client from attempting to contact the CIS him/herself. Many of the offices don't appreciate such phone calls as it takes them away from time spent deciding cases. As well, a good relationship with all offices only helps the chances of an adjudication happening quickly and to the clients benefit. Processing times are subject to change without notice.
Keep the number of inquiries to a minimum as they tend to slow down the progress of work at the CIS office. If you are concerned about making sure the waiver has been received, contact USCIS no earlier than thirty days after filing. If filing any addendums directly with the CIS office following their receipt of the waiver packet, you may inquire within a few days of when it is expected they received the addendum to confirm its receipt and that it has made it to the correct file. Avoid making another inquiry until the case is outside the normal processing time. Following that, make subsequent inquiries no earlier than 30 days after the most recent prior inquiry. Discourage the client from making inquiries on his/her own without express approval from Counsel.
An I-601 cannot be filed abroad prior to the immigrant visa or K visa interview. For an AOS include the I-601 packet with the AOS packet, if desired. For consular filings, the interview is the earliest date the I-601 can be filed. It is not the latest date. Some consulates, most notably Rio de Janeiro, have a policy that they will never accept the I-601 on the date of the interview, and the applicant must make a second in-person appointment to come back and file the waiver packet, even though this is a burden for many clients. For consulates that will accept on the day of the interview, if the applicant is not ready to file, they will typically be told they have 30 days to file. This deadline is normally easy to extend up to one year.
Rather than extending that deadline, you may choose to "fee in" by filing the form and the fee and possibly a bare minimum of supporting documents if the consulate demands it. The consulate will forward the case to the CIS office, getting the client's case in the 'queue' for adjudication. While it's in the queue, a more solid waiver packet can be compiled and submitted it to the CIS office as an "addendum" or "amendment" up until the time the adjudicator reviews the case, whenever that may be. The advantage to the fee-in-amend-later strategy is that it cuts processing time while preparing a quality packet. The disadvantages are that (a) the consulate occasionally makes a recommendation on whether to approve or deny and they can't make a considered recommendation if they don't see the packet, and (b) by submitting things separately there is a greater risk that amendments don't make it to the right file. Always be sure to include the consular case number on the cover letter when sending amendments directly to the CIS office. If the client doesn't contact your office until he/she has already been found inadmissible, the fee-in-amend-later strategy is preferable. Be careful of using this strategy for USCIS offices with a rapid turnover rate, such as Frankfurt. You cannot use the fee-in-amend-later strategy for the Waiver Pilot Program in Ciudad Juarez as a decision will be made in less than 48 hours.
For in-country filings, sometimes the client does not know he will be found inadmissible until the adjustment interview. CIS will typically give the client 30 days to file the I-601. In this situation, extensions are not always granted and the fee-in-amend-later strategy is not recommended as a decision on the merits can be made immediately upon filing.
Can denials to Applications for Waiver of Grounds of Inadmissibility be appealed?
An appeal following an administrative denial to an Application for Waiver of Grounds of Inadmissibility must be made to the Administrative Appeals Office (AAO). It must be filed within 30 days of the date of the denial. Note that it is possible to fee-in-amend-alter with the appeal. In such a case it is necessary to submit the I-290B and filing fee within 30 days of the denial (33 if mailed), but on the form there's a box that can be checked indicating that the representing attorney will send the brief directly to the Administrative Appeals Office within 30 days. As the waiver decision is discretionary, it is very difficult to win an appeal. AAO does not like to overturn the discretionary decision on I-601 waivers. AAO discourages new arguments being presented on appeal that were not in the original I-601 packet, but new or 'updated' evidence is generally acceptable.
Once an appeal is filed, and forwarded to the AAO in Washington, DC, it is out of the hands of the CIS office that denied the case. The OIC does not have more access to information about the appeal than the attorney. Direct inquiries to the AAO, not the office that denied the case.
Due to the lengthy processing time for appeals (can be 18 months or more) and low chance of success, consider refilling a de novo I-601 packet instead, especially if the client attempted the first I-601 pro se and it is clear that a better packet can be compiled. The law is unclear on whether it is possible to file a de novo I-601 based on the same immigrant visa or K visa case. Some consulates will allow simply re-filing, but most will require starting over with a new visa petition. Most of the consulates within the jurisdictional area of the Vienna USCIS office will allow a re-filing of the I-601 without a new petition. Always inquire to be sure. Even starting over with a new immigrant visa petition may get a decision faster than an appeal. Also, having to start over with a new visa petition allows time to put together a better waiver packet. The process will allow for several months, rather than the 30-60 days given for preparing an appeal.
For an in-country I-601 denial, the appeal will probably not stop the client from being placed into proceedings as the I-485 would also be denied. There is nothing to lose by attempting to get Deferred Action following the I-601 denial. Other tactics for how to handle immigration proceedings following I-601 denial are beyond the scope of this advisory.
The I-290B is normally filed with the consulate, but in a few parts of the world it is filed with the CIS office. Be sure to review the instructions on the denial notice.
Any Motion to Reconsider will be automatically converted into an appeal if the CIS office denies the Motion. Normally no notice of the decision on the Motion to Reconsider is given if it is denied. It is only possible to know it has been converted into an appeal by making inquiries. Consider carefully filing a Motion to Reconsider before the OIC if claiming Abuse of Discretion before the AAO. It's hard to fashion an Abuse of Discretion argument that is not a bit insulting to the OIC who made the decision. This person is going to read the Motion and may remember Counsel's name the next time one of Counsel's waivers crosses his/her desk.
If you think you may be able to win a Motion to Reconsider with new evidence, you must explain why the new evidence was not submitted in the first place. OICs will not entertain a de novo I-601 filed as an MTR. Even if you have a good reason for not submitting the new evidence prior to the denial, the new evidence should still be limited. The more it looks like a de novo I-601, the less likely the OIC will be to vacate his original decision.
Prepare in Advance or Wait?
If there is any question as to whether the client will actually be found inadmissible, Counsel may choose to wait until the finding of admissibility is made at the consulate interview or the AOS interview prior to working on the waiver. If the client is found inadmissible having waited will add at least 30 days to the entire process because it will take at least that long to prepare the waiver. However, if the client is not found inadmissible, the client will have saved thousands of dollars in attorney's fees.
APPENDIX: CASE LAW
These are cases in which the definition of Extreme Hardship is discussed. This is not an exhaustive list, but most of these cases are Suspension of Deportation or Cancellation of Removal cases or are about the waiver under INA 212(h). Especially useful is O-J-O.
Matter of W, 9 I&N Dec. 1 (BIA 1960)
Matter of Shaughnessy, 12 I&N 810 (BIA 1968)
Matter of Anderson, 16 I&N Dec. 596 (BIA 1978)
Matter of Ngai 19 I&N Dec. 245 (Comm. 1984)
Matter of I-G-E, 20 I&N Dec. 880 (BIA 1994)
Matter of Pilch, 21 I & N Dec. 627 (BIA 1996)
Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996)
In re O-J-O-, 21 I&N Dec. 381 (BIA 1996)
Matter of Monreal, 23 I & N Dec. 56 (BIA 2001)
In re Kao and Lin, 23 I & N Dec. 45 (BIA 2001)
Matter of Recinas, 23 I&N Dec. 467 (BIA 2002)
Copyrighted by Laurel Scott and Elizabeth Cannon. 2007. All rights reserved.
Laurel Scott is an attorney specializing in the I-601 Waiver of Ground of Excludability.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.