I-601 Waiver Attorney – Update from Ciudad Juarez December 2010

Here is a quick update from the field. Processing waiver applications is the main work of the USCIS office at the consulate. Naturally, the consulate makes an initial determination of inadmissibility. If the applicant is eligible to submit a waiver, he or she is instructed to phone the Teletech Call Center beginning the following day to schedule a time and date for dropping off the waiver application.

As of early November, applicants who phone the Call Center are receiving appointments in early January, indicating a two-month wait (until recently the consulate was averaging 4-6 week delay). Due to a transition to a new contract, the Call Center is currently unable to provide “on the spot” confirmation of the appointment, but the agents will take down the caller’s information and respond via email or phone when an appointment is available.

On that date, the applicant will be briefly questioned by a consular employee, pay the waiver application fee, and drop off the packet. The waiver application and supporting documents will be passed directly to the USCIS officer, except for medical waivers, which need CDC notice and sign-off by qualifying relative.

In August, the USCIS began using a new computer system that is not as responsive as the former one, and it was taking two weeks from the “drop-off” date to receive a decision on the waiver. That period of time has recently been reduced to approximately three-five business days. Applications are either approved (only those that are “clearly approvable”) or referred to the backlog.

If the application is going to be referred, the applicant has only 84 days – not up until the time of adjudication – to submit additional documentation. The USCIS office in Cd Juarez receives 80 percent of all waivers filed worldwide, and the adjudicators each read between 30-35 applications/day. If a case appears complicated and voluminous, it may be referred, given the short time (an average of 15 minutes) that officers have to review each application. The strong points in the waiver case need to be put forth up front and not buried in the application or supporting documentation.

Waivers where the applicant has an “A” file will typically be referred, since that file will have to be reviewed before making a decision and it takes two to three weeks to receive the file. The USCIS office in Cd. Juarez will hold onto those cases until the A file is obtained where there is evidence of strong hardships.

There are fewer than 4,000 waiver applications in Ciudad Juarez. This number reflects the applications received and referred during a three-month period. There are still unadjudicated applications pending in the offices where they were referred.

Applicants are encouraged to include an index or table of contents listing or briefly explaining the relevance of the supporting documents. This index should reference numbered documents that are separated and designated by corresponding tabs at the bottom or side of the packet.

The first document should be the declaration from the qualifying relative. Feel free to reference supporting documents within the declaration. Legal briefs and memos are usually not read by the USCIS officers in Cd. Juarez, given the interest of time; they are more likely to be read by officers adjudicating referred applications.

Officers working on referred cases are conducting a “de novo” or brand new review. Cases are currently being sent to USCIS offices in Anaheim, CA; El Paso, TX; Miami, FL; Mexico City; and the Vermont Service Center. They are typically sent to these offices between 60-90 days after the supplemental documentation is received or the 84-day deadline has passed. The processing time for referred cases has been holding steady at around 9 to 10 months. While there were approximately 11,000 waiver applications in the backlog at the beginning of the last fiscal year, that backlog has now been reduced to 4,000 applications.

I-212 Waivers

Form I-212 can be submitted with the I-601 waiver application. Since I-212s do not require a showing of extreme hardship to a qualifying relative, and thus carry a lower standard, they are typically approved if the accompanying I-601 is approved. No stand-alone I-212 applications should be filed with the USCIS office in Cd. Juarez, except in fiancé (K-1) cases.

In other cases where the applicant does not have any other ground of inadmissibility except for a prior order of removal, the I-212 should be filed in the United States with the DHS district office that issued the order. For applicants subject to the “permanent bar” under 212(a)(9)(C)(i)(II) due to illegal or attempted illegal reentry after a final order of removal, the applicant can submit an I-212 after remaining abroad for ten years. These should be filed at the USCIS district office that has jurisdiction over the place where the applicant intends to live in the United States.

Those applicants who were denied a visa based on the three- or ten-year bar under 212(a)(9)(B) and were denied a waiver can phone the Call Center to reschedule their interview once they have remained outside the country for three or ten years. These applicants do not need to file any additional forms or waivers.

If the office adjudicating a referred case is approving the waiver, it will send a notice to the applicant as well as a notice to the consulate. Allow up to 90 days for the consulate to schedule the re-interview, although the average processing time now is about two weeks. Beginning on January 10, 2011, the consulate will be able simply to issue the immigrant visa. In some cases the consulate will require updated information, documents, or biometrics.

If the office adjudicating the referred case is denying the waiver, it informs the applicant of the appeal procedures. The applicant has 30 days to submit an appeal, which is filed at the office that adjudicated the waiver. Every appeal is also treated as motion to reconsider by that office. The Administrative Appeals Office is currently taking approximately two years to issue a decision. If no appeal is filed, the case is closed within 60-90 days after the decision is made and the file is shipped to the National Records Center.

In lieu of filing an appeal, the applicant can request to be re-interviewed, re-refused, and submit a new waiver packet. To exercise this option, contact Call Center, which will send a report to the consulate, which will schedule a new appointment within 30-60 days.

The USCIS in Cd. Juarez is currently approving approximately 50 percent of the waiver applications and referring the other half. Of those applications that are referred, those USCIS offices are approving an additional 50 percent, bringing the total approval rate to 75 percent.

Applicants with compelling health-related hardships can ask that their waiver application be expedited. This is also true of active duty military personnel. This hardship can be indicated to the consular officer at the time of the interview, in which case this is passed along to the USCIS. Or the applicant can inform the USCIS office in Cd. Juarez or at one of the referral offices. Be sure to document any medical-based requests for expedited processing.