I received so many emails following our most recent I-601 waiver posting about waiver success. Readers were encouraged by our clients success and learned how to plan a successful waiver. But what to do when the waiver is denied. Are there any options? I have provided below an extract from Laurel Scott’s excellent article on waivers. Laurel like myself, is one of a few immigration lawyers specializing in this complex area of law.
So what to do when your I-601 waiver is denied?
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 USCIS 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 22 months or more) and low chance of success, consider refilling a de novo (new) I-601 packet instead, especially if the client attempted the first I-601 by himself 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. 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.
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.
This is a complicated area of law, when faced with the decision to pursue such cases, make sure to consult a qualified lawyer.