This roundtable described current standards and processes for adjudication of Forms I-601, Application for Waiver of Grounds of Inadmissibility. Panelists discussed the legal requirements for I-601 waivers, recent changes in processing, and the challenges of the waiver process from government and stakeholder perspectives.
Moderator: Peggy Gleason, Ombudsman's Office
- Anna Gallagher, Maggio + Kattar
- Michael D. Olszak, U.S. Customs and Border Protection Admissibility Review Office
- Pilar Peralta Mihalko, USCIS Refugee Asylum and International Operations (RAIO) Directorate)
Ms. Mihalko described her office's work processing waivers. RAIO has jurisdiction for most overseas USCIS adjudications. It has three districts in Mexico City, Bangkok, and Rome which include the USCIS field offices that adjudicate I-601 applications for those who file overseas.
RAIO received 23,574 Form I-601 waiver applications in FY 2011, and completed over 21,000 cases. Over 9,000 cases remain pending at the end of FY 2011. The Ciudad Juarez Field Office (CDJ) receives approximately 75 percent of the annual case load. CDJ operates with three adjudicators and a field office director, Ms. Yolanda Miranda.
RAIO has been working towards a goal of completing adjudications of I-601 applications within six months from the receipt date. In FY 2011, there was an 82 percent reduction in the number of cases that remained pending over six months. However, a lag still exists between DOS receipting of waivers and the initiation of processing which varies by overseas post, USCIS.
Ms. Peralta Mihalko described the high volume waiver operation at CDJ, which receives assistance from the USCIS El Paso Field Office and the Nebraska Service Center in adjudicating cases. Ms. Mihalko's office, the International Adjudications Support Branch, located in Anaheim, CA, handled 13% of the waiver cases from CDJ. This office also assists with overseas adjudications by sending staff on rotations to USCIS field offices abroad. RAIOÕs I-601 approval rates for FY 2011 international offices were 54% in the Bangkok District, 50% in the Rome District, and 84% in the Mexico District.
Ms. Mihalko explained that USCIS filing procedures for waivers overseas changed in 2011. Beginning in April 2011, I-601s were accepted directly at all USCIS field offices overseas that were co-located with DOS. Applicants may not notice the difference since DOS and USCIS share the same window for case intake, however, the change saves USCIS money, as the agency was required to pay DOS for intake of applications. Where USCIS offices are not co-located with DOS, applications are still filed with DOS and transferred to a USCIS field office. There are 28 USCIS international offices that are co-located with DOS. There may be additional significant filing changes in FY 2012. USCIS is considering a transition to I-601 filing at a U.S.-based lockbox but will engage with stakeholders prior to making any such change.
Ms. Mihalko stated that the extreme hardship requirement for waivers is determined on a case-by-case basis. Adjudicators must consider the totality of circumstances and consider factors cumulatively. The most frequent issue is a failure to provide sufficient evidence. It is helpful if the packet pulls the evidence together succinctly and directly to help adjudicators get to the point. Packets should highlight how evidence in its totality adds up to hardship and should connect the hardship of other family members to the qualifying family member's hardship.
Ms. Gallagher discussed immigrant waivers from a practitioner's point of view. Ms. Gallagher shared that she generally advises clients to be prepared to be outside of the United States for two years when filing a waiver with consular processing. She also carefully assesses the equities in the case before advising a client to leave the country and file for a waiver. She advised people to always inquire how many times the applicant came to the United States and how long the individual stayed to ensure proper calculation for the permanent bar of inadmissibility at INA Section 212(a)(9)(c).
Waiver outcomes are uncertain and it is important to build equities before presenting a waiver. For example, if clients just married and have no children, Ms. Gallagher will not recommend attempting a waiver, but instead will advise the couple to build equity and file later. If a waiver is denied, the applicant may appeal to the USCIS Administrative Appeals Office, where processing times are 26 months.
Ms. Gallagher described how to document extreme hardship, referring to BIA case law and unpublished AAO decisions. When documenting country conditions, she advised that practitioners should summarize and highlight relevant portions of long documents. She recommended using experts for psychological evaluations. For medical hardship, she advised people to highlight lack of availability of treatment in the home country and to document lack of funds for medical care or insurance.
Mr. Olszak explained to the audience how his office adjudicates nonimmigrant waivers. In 2006, CBP launched the Admissibility Review Office, now located in Herndon, Virginia, as the centralized office to adjudicate nonimmigrant waivers. Through centralization, CBP sought to achieve consistency in adjudications. Approximately, 20,000 waivers were decided by ARO in FY 2011. The approval rate on the consular cases is high because consular officers examine the case first and make a recommendation to ARO.
Mr. Olszak reminded the audience that nonimmigrant waivers are temporary and are valid for five years (except for U, T and K visas), whereas immigrant waivers are permanent. The legal standards and process for each of these types of waivers is different. Temporary nonimmigrant waivers are available under INA 212 (d)(3)(A).
Mr. Olszak explained that under INA 212(d)(3)(A)(i) there is a nonimmigrant waiver that is part of a consular process. When a nonimmigrant applicant goes to the consular post abroad for an interview, the consular officer decides whether to recommend the applicant for a waiver or not. No separate application or fee is needed and the request is submitted electronically to ARO. Sometimes the ARO will find that the applicant is not inadmissible and notify DOS. No appeal is available for the decision DOS gives to the applicant, but the applicant may re-apply. When a post does not recommend a waiver, or one is denied, the applicant can request an advisory opinion. While it generally takes an average of 60 days to adjudicate a waiver, ARO can expedite cases.
INA 212(d)(3)(A)(ii) provides a paper-driven waiver process, using Form I-192, Application for Advance Permission to Enter as Nonimmigrant, which is used mostly by Canadians who do not require nonimmigrant visas. Mr. Olszak explained that when a person files Form I-192 at the port of entry with supporting documents and the $585 fee, CBP at the port of entry mails the application to ARO. The average processing time is 90-120 days.