Waiting for I-601 Waivers in London US Embassy

[Traci - Andrew 14]

This is a very interesting thread. Is the first time I read it, but I will follow your process. This process is so stressful, and more if u have to apply a waiver. I´m surprised and glad u r usually on good attitude. Good luck to u both, I´m sure lots of people in your situation r learning more.

Hope u have good updates next week. :star: :star:

So much for the updates... The USCIS have managed to make us wait 19 days so far since the last update of the I-601 Status Update file, it is looking like today will not be the day for an update either, so I can only guess that it will be the 3rd week anniversary on Wednesday 16th June 2010 which just so happens to be my Wifes birthday... So I would be very happy if they were to release an update by then with our case moving to completed for her birthday present, after all it is her big one... (not allowed to tell you how old she is)

Anyway lets see what happens this week, Wednesday would be 21 days or 3 weeks, which is a long time to wait between updates.

Take care

Andrew

[Traci - Andrew 14]

For those of you that are considering filing an I-601 Waiver, can I suggest that read the article below that was written by Laurel Scott whom is an Immigration Laywer.

I hope this helps anyone considering this process.

Regards

Andrew

http://www.scottimmigration.net/I601Memo.pdf

I-601 Waivers and Extreme Hardship: Strategies for Writing a Convincing Narrative for an Application for Waiver of Grounds of Inadmissibility

Laurel Scott Esq. and Elizabeth Cannon

Last Revised April 16, 2009

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.

Court decisions addressing the I-601 waiver may change the existing law or create new law. Counsel are advised to independently confirm whether the law in their circuit or BIA decisions have changed existing law or precedent since the date of this memo.

What is an Application for Waiver of Grounds of Inadmissibility and Who Is a Qualifying Relative?

An Application for Waiver of Grounds of Inadmissibility is filed by an alien in the event that an alien has been denied admission to the United States. Different sections of INA § 212 allow for the application of a waiver of inadmissibility. Waivers must establish that a qualifying relative will suffer “extreme hardship” if the alien is not admitted. So who is the qualifying relative? It depends on the ground of inadmissibility. A waiver for prior unlawful presence (INA 212(a)(9)(B)(v)) or misrepresentation (INA 212(i)) requires it to be established that “the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien,” whereas a waiver for criminal history (INA 212(h)) requires it to be established “that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.” A US citizen fiancé(e) may also be a qualifying relative [9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i)]. For the purposes of this memo the Application for Waiver of Grounds of Inadmissibility will be referred to as an I-601.

Voluntarily Entering into the Foreign-Filed Waiver Process

If you have a client who entered without inspection (EWI) and is now married or engaged to a US citizen, consider voluntarily entering into the waiver process after first eliminating adjustment of status (AOS) under INA 245(i) and Cancellation of Removal (COR). Always be sure to explain to your client the risks associated with voluntarily entering into the waiver process. Bear in mind that for foreign-filed waivers, the alien must remain abroad while the 601 is in process, which in some places can take 6-12 months or more, depending on the location. The most noted exception to this lengthy processing time is Juarez, discussed below. The entire process commences with an I-130 or I-129F filing as the I-601 would be filed at the consulate following an immigrant visa or K visa interview.

HIV Waivers and Health Grounds of Inadmissibility

While the I-601 form is also used for HIV waivers, the content of these arguments is completely different. An HIV waiver’s focus is health insurance. This memo is not meant to provide guidance on HIV waivers or any waivers for health grounds of inadmissibility.

Who adjudicates Applications for Waivers of Grounds of Inadmissibility?

I-601 waivers filed at a consulate are adjudicated by a representative of CIS, not any consular officer. The consulate may sometimes make a recommendation on whether to approve or deny an I-601, but it is the CIS office that makes the decision. The Officer-in-Charge (OIC) at the CIS office abroad is the I-601 adjudicator. At some busy CIS offices, there is more than one CIS adjudicator, but all decisions are signed by the OIC. When there is more than one adjudicator, they will attempt to make their decisions consistent within that CIS office, with the OIC setting the standard.

Not every country has a CIS office. To see which CIS office has jurisdiction over waivers filed in a particular country, check the USCIS Overseas Office Locator:

https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=OS

For in-country filings, the immigration officer handling the adjustment of status case often makes the decision on the I-601, though sometimes a supervisor will handle the I-601. Waivers may also be filed before a judge when adjusting status in court. The judge then adjudicates the waiver.

What are applicable legal arguments for an Application for Waiver of Grounds of Inadmissibility?

All arguments for Applications for Waivers of Grounds of Inadmissibility are based on the precept that there is a qualifying relative who will suffer “extreme hardship” if the Alien’s admission is denied. “Extreme hardship” is very vaguely defined as greater than the normal hardship the qualifying relative can be expected to experience if the Alien is denied admission. It is important to prove both why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the US without the Alien. It is not enough to say that the qualifying relative will miss the Alien’s company as this is considered “normal” hardship, not extreme hardship.

Below are some examples of Extreme Hardship arguments. Here they are separated into levels, with Level 1 being the strongest arguments and Level 4 being the weakest. At some USCIS offices abroad, one Level 3 argument and a few Level 4 arguments may be sufficient. At other USCIS offices, an approval will not be issued unless there is at least one Level 1 argument presented. For most offices, it’s best to have at least one Level 2 and a few Level 3 arguments presented in the waiver. You are unlikely to win a waiver case with only Level 4 arguments, though that’s not to say its impossible. For the purpose of this memo “Relative”, is always the qualifying relative. The list below is by no means exhaustive. It is provided to give the reader an idea of what might be a stronger argument vs what might be considered a weaker argument.

Level 1 arguments:

(a) Relative has a MAJOR medical condition (e.g. brain tumor, multiple sclerosis, cerebral palsy) which makes Relative unable to move abroad and for which Relative absolutely needs Alien in the US to help take care of him/her,

(b) Relative is caring for an elderly, chronically ill, or disabled relative who needs constant care and whose condition is bad enough that Relative either MUST live with the relative or Relative MUST spend at least an hour a day assisting the relative with things like hygiene or physical therapy, and this makes Relative unable to move abroad and makes him/her really need Alien in the US to help him/her care for his/her relative and manage his/her other responsibilities, or

© Alien's country is in a state of active war or major political upheaval.

Level 2 arguments include:

(a) Relative is the primary caregiver for his/her child(ren) from a prior relationship and the child(ren)'s other parent will not allow the children to be taken out of the country AND the child(ren) have formed an emotional attachment to Alien

(b) Relative has a serious medical condition that makes it very difficult for Relative to move abroad and Relative needs Alien to provide help (e.g. Relative needs to have major surgery sometime in the next year, with an expected recovery time of several months),

© Relative is caring for a moderately disabled relative who normally can care for him/herself but occasionally has episodes in which he/she needs a lot of help from Relative and during those times Relative, in turn, needs help from Alien,

(d) a relative is unusually financially dependent on Relative (e.g. Relative's mother has just gone through a nasty divorce with Relative's father in which she got nothing and because she has never worked, she doesn't qualify for social security, so Relative is supporting her in the entirety for the rest of her life),

(e) Relative has a child that he/she is about to put through college (note, some offices consider this a stronger argument, some consider it a weaker one), or

Alien's country is on the verge of major political unrest or negative political change or the country is known for oppression of one sort or another (e.g. Relative is a Christian woman and Alien is from Saudi Arabia), or it is in the infant stages of post-war recovery.

Level 3 arguments include:

(a) Relative is the non-custodial parent of a child from a prior relationship and has an actual relationship with that child and the child's other parent will not allow Relative to take the child out of the country but Alien does not have a relationship with the child at this time,

(b) Relative a significant condition that makes it inconvenient to move out of the country (e.g. severe asthma and Alien spouse lives in Mexico City),

© Relative been diagnosed by a licensed psychologist/psychiatrist with clinical depression due to Alien's immigration problems – note: even thoughts of suicide do not raise this argument to Level 2,

(d) Relative and Alien have young children together or Relative has full custody of Relative's child and can bring him/her abroad and Alien's home country has bad public health conditions and bad public education,

(e) Relative's job requires a license in both the US and abroad and it will be very difficult to get licensed abroad (e.g. attorney, medical doctor),

Relative has job skills that are very specific to the US (e.g. a tax accountant with extensive familiarity with US tax law),

(g) Alien's country has a very bad economy,

(h) Relative has a close relative who is partially dependent on Relative financially (e.g. Relative's mom gets social security but needs Relative's extra $500 per month to stay in her present apartment) or physically (e.g. Relative's mother functions well now, but her health has been declining and it is expected she will need more of Relative's help in the near future).

Level 4 arguments include:

(a) Relative has debts they wouldn't be able to pay if they moved abroad,

(b) Alien's country has a high unemployment rate,

© Alien's country has a high crime rate,

(d) Relative has been despondent due to the situation, but hasn't sought professional help,

(e) Relative's parents are aging.

I cannot stress enough that it is insufficient to prove that Relative has elderly or sick relatives. You must show the link between the medical condition and the waiver, i.e. you must prove that the elderly or sick person needs the qualifying Relative to remain in the US and, preferably, that the Alien is also needed in the US.

Many clients who do their own research are advised by others on the internet to include a psychological self-scoring test, called Holmes-Rahe. In my opinion, this is not worth including. It is also probably not worth including the argument that the couple wants to have children in the future (but are not currently pregnant) and either the wife is getting older or the foreign country has a high infant mortality rate. Whenever a waiver claims a relative is dependent on Relative either for direct care or for money, Counsel must explain why no other relative such as one of Relative's siblings can provide the same care or support. The reality is adjudicators are currently each creating their own guidelines using only the case law for reference. The problem is that the case law is inconsistent, in my humble opinion. The case law generally says that because each case is unique, the adjudicator has broad discretion to decide what constitutes extreme hardship. Statements along these lines appear in many decisions. The statements effectively discourage USCIS from creating the kind of list I just presented.

How much supporting documentation is sufficient?

A waiver packet should include: forms, brief or attorney letter, and supporting documents. In some locations, the only form you need to file is the I-601. Other locations also require a G-325A for the applicant. Still other offices will require all vital records related to the case and police reports translated into English, even when the applicant has not criminal history. Check with the consulate in advance to see what will be required. The brief or attorney letter should be around 10-15 pages and the supporting documents should number 20-50 pages. That being said, there are attorneys that have repeat success with briefs shorter than 5 pages. If it is absolutely necessary to supply more than 50 pages of supporting documents, then do so, but at some point one will experience the law of diminishing returns where there is the risk of annoying the adjudicator with too much to read, thereby outweighing any or all benefits of including a given document. The catch is that the Administrative Appeals Office prefers to see more evidence than any initial CIS adjudicator wants and prefers for all evidence to have been submitted in the initial filing. Keep in mind that the intent is to convince the adjudicator the first time around, so aim to please the adjudicator, not the AAO. A shorter packet can receive approval if there are a few pieces of very good evidence and a very strong argument.

What constitutes sufficient evidence?

Any argument presented in the I-601 must be supported with good evidence. There should be non-personal documents, such as country reports, and personal documents such doctors’ letters and psychologist letters. For non-personal documents it’s best to cite US government sources, as the US government adjudicator will have more trouble dismissing them. Common sources are the Consular Information Sheets, the CIA Factsheets, and the National Institutes of Health medical encyclopedia. Bear in mind that for foreign filings, the OIC is most likely quite familiar with country conditions in the countries over which he/she has jurisdiction and really doesn’t need to see a few hundred copies of the same country reports each month. Country reports are much more important for I-601 filings within the US and when filing a case for a national of a country from which the OIC may see fewer waiver applications (see Consulate Shopping below). Use newspaper articles and NGO reports sparingly when information needed cannot be found from a US government source. Certain adjudicators have openly ‘dismissed’ this attorney’s non-US government sources in their denials, even when the reports come from reputable sources such as Amnesty International.

For personal documents, confirm all letters are signed and dated. They do not need to be notarized unless it is hard to believe that the person signing the letter would make that statement. Attorney-certified photocopies may be sent, but sending the original and keeping the copy is preferable. Doctors’ letters should describe the medical condition, the patient’s physical limitations (e.g. no driving), the need for assistance, the need for continued medical care, and (if applicable) the physician’s personal knowledge of the alien’s prior role in providing direct assistance to the patient. Psychologist letters should describe the condition, how the psychologist arrived at that diagnosis, the relationship between the waiver process and the condition, the likely psychological effects of waiver denial, the frequency of the patient’s visits, the medications the patient is on (if any), and the plan for future treatment. Some attorneys include the doctor’s or psychologist’s resume. This attorney rarely finds this helpful or necessary. Some lab reports or medical notes may be appropriate depending on the case.

Cases are proven with the supporting documents, not with the brief. The purpose of a brief is to make sense out of the supporting documents and place the case into legal context. Good supporting documents are paramount to getting approval. Make the legal section short for foreign filings. Most of what the OIC does is adjudicate I-601s. They are familiar with case law. For in-country filings where the adjudicators process the spectrum of applications, a legal section may be more important.

The qualifying relative’s letter is required. This attorney usually includes it as a supporting document. For personal documents in the form of a letter, guide the person in writing the letter, but don’t write it for him/her; it needs to be in their own words. Beware of clients pulling letters off of the internet to use as a model for what they need to write. The OICs frequent the internet, too, and they are aware of the content of letters that have been publicly posted. If the OIC suspects the letter was copied off the internet, rather than authored by the person who signed it, the letter will be given less weight and the credibility of the entire packet may be at risk.

What kind of evidence can I provide to prove rehabilitation for a criminal waiver?

• time since last conviction, generally more serious convictions and/or repeat offenses require more time since last conviction

• statements of the criminal court regarding chances of alien repeating the crime (sometimes the court actually comes out and says the defendant is unlikely to reoffend)

• expungements and pardons (don't get you out of ground of inadmissibility, but they're great proof of rehabilitation, 9 FAM 40.21(b) N4:1-3(b)(4) actually refers to them as "rehabilitative" statutes)

• letter from parole officer, policeman, judge or other law enforcement official stating that from their experience they 'know' when someone is likely to reoffend and this guy won't reoffend

• letter from psychologist stating that crime was result of psychological problem and now the person is better (this is especially useful for history of shoplifting without economic motivation)

• evidence of changed life conditions, e.g. alien committed offenses when he/she was young, foolish, unemployed, childless, and/or single, but now person is older, wiser, married, employed and/or has kids

• letter from clergy stating this person has changed

• evidence that alien is in position of trust with money (if financial crime) or trust with children (if violent or alcohol-related crime) and that the people who placed him in this position of trust KNOW the alien's criminal history

• evidence of successful completion of alcohol or drug treatment program if alcohol or drugs were a factor in the crime (BEWARE OF ADDICTION GROUNDS OF INADMISSIBILITY - ALIEN MUST BE CLEAN AND SOBER FOR THREE YEARS)

• for recent first-and-only offenses of a less serious nature, if the punishment was light, bring that up

How much should I charge the client for this?

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?

Over the past few years I have been stating that the most important factor in determining the chances of approval is where the case is filed. However, as time passes and I see more and more decisions, patterns become clearer. I now advocate the theory that the primary reason why approval rates are different at different offices is because the most common grounds of inadmissibility vary from office to office. For example, offices in Eastern Europe and the Middle East may see a lot more cases where the alien had a denied asylum claim that lead to an order for Removal that the alien disregarded. Such a scenario would be much less common in Ciudad Juarez where most of the case will involve simple unlawful presence only. If different grounds of inadmissibility are treated differently when it comes to evaluating the waiver application case, then this is the cause of the variation in approval rates, rather than the level of lenience of the adjudicating officers.

Mitigating and Aggravating Factors

As was described in the preceding section, the ground of inadmissibility can be a major factor in predicting chances of approval. Likewise, there may be other mitigating and aggravating circumstances that effectively change the required level of hardship you would need to show in order to be granted the waiver. Based on my experience and what I’ve seen written in some decisions, I’ve compiled the following list of mitigating and aggravating factors:

Mitigating

• Applicant voluntarily entered into the foreign-filed waiver process.

• Applicant’s only violation is unlawful presence and applicant entered the US as a child, brought by his/her family

• Applicant had a bona fide, reasonable belief that he/she was complying with the law

• Applicant and Petitioner’s marriage has already been lengthy at the time of the waiver application

• Applicant and Petitioner have child(ren) in common

• Applicant and Petitioner had prior miscarriage(s) that would have been a child in common

Aggravating

• Qualifying relative is from the same country as the alien, having immigrated to the US as an adult (immigrating as a child doesn’t seem to be an aggravating factor)

• Applicant is only eligible for waiver because violation occurred before Congress eliminated the waiver for that type of violation

• Applicant lied in the current immigration process

• Applicant has multiple instances of misrepresentation

• Applicant violated Voluntary Departure

• Applicant ignored an Order for Removal

• Applicant has arrests for which he/she was not convicted

• Applicant exhausted lengthy deportation defense procedures prior to proceeding abroad

• Applicant accused of marriage fraud either now or in the past, even if accusation was flimsy

• Applicant previously married to a different USC petitioner

• Petitioner spouse or Applicant spouse previously had multiple marriages

• Petitioner’s or applicant’s divorce immediately preceded current marriage

Whether or not a given aggravating factor should be an aggravating factor is beyond my control. Even if I think it shouldn’t be an aggravating factor, if I’ve seen it used against the applicant in the narrative of a denial, it made it onto my list here. If you have any mitigating factors, be sure to bring them up. If you have an aggravating factors, be sure to explain them thoroughly in an attempt to minimize their impact. Remember that aggravating and mitigating factors are not about hardship; but they do affect how much hardship you will need to show.

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 a few days 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 a waiver appointment at the consulate following the interview. If it is clearly approvable, the alien will be able to get his/her K or immigrant visa relatively quickly. If it is not approved it will neither be denied. Rather, it will be referred and placed into the normal, longer process.

Waiver appointments must be made by phone by calling 1-800-919-1754 from the US or 01-477-788-70-70 from Mexico. Have a credit card handy because they will charge you $7 for the call. Currently one must wait until after the consular interview before scheduling the waiver appointment.

At the waiver 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 twelve 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 has two DUI convictions then regardless of the hardships and the evidence, it will be referred.

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.

Consulate Shopping

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.

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)©, INA 212(a)(6)©(ii) and Medical Exam

Always, always, always confirm a client won’t be found inadmissible under INA 212(a)(9)© 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)© 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)© and that (9)© 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. However, while the policy at the US consulate in Juarez formerly appear to comply with this interpretation, recently there has been a change and now unlawful presence accumulated prior to age 18 is being counted toward INA 212(a)(9)©.

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)©(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.

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.

Inquiries

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.

Deadlines

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. By law they actually have one year to file.

Rather than waiting to file, 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 disadvantage is that by submitting things separately there is a greater risk that amendments won’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. You cannot use the fee-in-amend-later strategy for the Waiver Pilot Program in Ciudad Juarez as a decision will be made quickly.

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 24 months or more) consider refilling a new 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. Some consulates will tell you that

you cannot file a new I-601 without starting over with a new petition. Fight the consulate on this. The DOS Advisory Opinion Office will back you up.

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.

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. All rights reserved.

[Traci - Andrew 14]

Hi Everyone

The USCIS has decided that they have kept us waiting long enough (20 Days) so they have released an update yesterday 15th June 2010

So the highlights of this update are:

5 Cases added to the "Pending" pile making a total of 39 UK cases in total now !!

1 Case added to the "Under Review" pile from the Pending pile, this brings the total UK based Under Review cases to a massive total of 6

3 Cases were Completed.

Well this was a very long overdue update, a few people will have enjoyed being added and to Pending and one will have enjoyed the move to Under Review at last, however there was ONLY 3 COMPLETED over a 20 day period but as they now have so many Pending cases backing up, surely they must start to complete some more soon... hopefully another update this Friday (18/06/2010) I hope, this is my hopeful prediction anyway.

As usual you can see these changes in my updated spreadsheet here > I-601 Status Update Spreadsheet 15th June 2010

Well my Website monitoring software worked well, it enabled me to be the first to announce the update and work on the spreadsheet far earlier with my Wife Traci.

Wishing you all the best on the next update.

Take care all..

Andrew

[Traci - Andrew 14]

Hi Everyone

The USCIS has decided that because we have been kept waiting long enough for the last update (20 Days) that they would now furnish us with another update 3 days later (Friday 18th June 2010)

So the highlights of todays update are:

2 Cases added to the "Pending" pile making a total of 39 UK cases in total now !! (STK2007 761 001 & LND2008 843 014)

2 Cases were added to the "Under Review" pile from "Pending", this brings the total UK based Under Review cases to a total of 9 including 1 Scandinavian case (LND2008 801 002 & LND2008 754 020)

2 Cases were Completed.. One of them is Scandinavian and the other is a London case (STK2007 761 001 & LND2008 843 014)

Well this was a welcome update and my hopeful prediction came true for once, however there has been no movement for any of us at Visa Journey that I know of, unless I am unaware of your case number in which case if you email me I will add VJ User and your Initials to the Spreadsheet.

I wish this update went a bit further to make up for the lack of progress in the last one that we waited 3 weeks to get, however that was not to be, lets just hope that the USCIS now start updating us on a more regular basis and try and complete more cases to up their average cases per week figure from the 1.3 at which it stands currently.

As usual you can see these changes in my updated spreadsheet here > I-601 Status Update Spreadsheet 18th June 2010

Wishing you all the best for the next update.

Take care all..

Andrew

[Traci - Andrew 14]

UPDATED - Due to a Typo in cases numbers (Thanks Jewel-8 for being eagle eyed)

Hi Everyone

The USCIS has decided that because we have been kept waiting long enough for the last update (20 Days) that they would now furnish us with another update 3 days later (Friday 18th June 2010)

So the highlights of todays update are:

2 Cases added to the "Pending" pile making a total of 39 UK cases in total now !! (LND2008 699 001 & LND2009 597 007)

2 Cases were added to the "Under Review" pile from "Pending", this brings the total UK based Under Review cases to a total of 9 including 1 Scandinavian case (LND2008 801 002 & LND2008 754 020)

2 Cases were Completed.. One of them is Scandinavian and the other is a London case (STK2007 761 001 & LND2008 843 014)

Well this was a welcome update and my hopeful prediction came true for once, however there has been no movement for any of us at Visa Journey that I know of, unless I am unaware of your case number in which case if you email me I will add VJ User and your Initials to the Spreadsheet.

I wish this update went a bit further to make up for the lack of progress in the last one that we waited 3 weeks to get, however that was not to be, lets just hope that the USCIS now start updating us on a more regular basis and try and complete more cases to up their average cases per week figure from the 1.3 at which it stands currently.

As usual you can see these changes in my updated spreadsheet here > I-601 Status Update Spreadsheet 18th June 2010

Wishing you all the best for the next update.

Take care all..

Andrew

[Traci - Andrew 14]

Hi Everyone

Today 25th June 2010 the I-601 Waiver Status PDF File was Updated

I would have missed this update if it was not for TexasBantam & JustJ for being eagle eyed and spotted that the actual location for the Update PDF file had now changed, my software would have missed any further updates, however my software is now reconfigured for the new link & home of the I-601 & I-212's Updates so we are back in business:

It used to be located at: "http://www.usembassy.org.uk/dhs/forms/i601_status-web.pdf" OLD LINK > http://www.usembassy.org.uk/dhs/forms/i601_status-web.pdf

But for some strange reason it is now located at: "http://photos.state.gov/libraries/unitedkingdom/164203/dhs/i601_status-web.pdf" NEW LINK > http://photos.state.gov/libraries/unitedkingdom/164203/dhs/i601_status-web.pdf

The last update that we received was on Friday 18th June 2010 which was 7 days ago now and this update not only brings a slightly newer format by stating that it is including I-212's but also the addition of 11 new UK cases added to the Pending section, there was no other movement of cases to or from Under Review or Completed... One extra new Pending cases was Scandinavian which we do not cover in this spreadsheet.

So the highlights of todays update are:

11 UK based Cases in total were added to the "Pending" pile making a massive total of 49 UK cases Pending!!

LND2006 572 024 - LND2008 621 026 - LND2008 713 006 - LND2008 846 014 - LND2009 091 052 - LND2009 589 006 - LND2009 631 008 - LND2009 690 016 - LND2009 801 009 - LND2009 834 002 - LND2009 885 028

No cases were changed to Under Review which still leaves 8 UK based cases including mine (Nudge Nudge Wink Wink)

No cases were completed either, which means that if no more cases are completed this month the USCIS will have completed a total of 4 for the Month June.

Well this was a great update for new Waiver filers but not good for anyone already on the waiting list as Pending or Under Review. If your case number is above as a new case and you are on Visa Journey then please let me know your Case number and I will add VJ User and your Initials to the Spreadsheet.

Lets hope this is the beginning of the USCIS now starting to update us on a more regular basis and up their average cases per week figure from the 1.3 at which it currently stands .

As usual you can see these changes in my updated spreadsheet here > I-601 Status Update Spreadsheet 25th June 2010

Wishing you all the best for the next update and a great weekend with this fantastic hot weather we are having in the UK.

Take care all..

Andrew

[Traci - Andrew 14]

Hi

I have just finished adding a few extra touches to the Waiver Spreadsheet.

1 - I have added a section on the right hand side that shows how many cases were completed on a month by month basis.

2 - Above the monthly completed cases section is the new monthly average figure, currently at 5.63 Cases per Month.

3 - I have added a section below this on the right hand side of the spreadsheet showing how many days it has been for the longest completed & Under review cases.

4 - Extended the spreadsheet down further to incorporate the extra pending cases that are being added weekly,(After all I expected to be completed by now).

I hope you find these changes helpful, if you have any ideas or want a feature added, please drop me a message and I will see if it is possible to add any of your feature requirements.

You can find a copy of the spreadsheet here > New I-601 & I-212 Waiver Spreadsheet

Regards

Andrew

[Traci - Andrew 14]

Hi Everybody

It is such a shame that USCIS could not have updated us on any progress before the 4th of July as this creates another Monday holiday at the embassy in London, so I guess that as they did not update us this Friday just gone, that we will have to wait until Tuesday to Friday next week to find out if there has been any further progress.

I would like to take this opportunity to wish everyone a happy 4th July and that I hope you can still celebrate this day even with your loved ones so far away.

Anyway, it appears that there are changes being made to the I-601 process as JustJ highlighted, the movement of the PDF file to a different domain may be the first step in this re-organization, however it looks like they are going to centralize this process and make the Waiver applications track-able on a website along with other visas. The centralization of this project would remove the adjudication from the Embassy to the USA, possibly Washington, whereby they can maintain standards and uniformity as it is a bit of a hit and miss affair with Mis-rep charges etc, some get through and some do not? So maybe this will be a good thing for future I-601 filers and possibly us as well?

I will alert you as and when the file gets updated in the new location.

Take care and happy Independence Day !!

Andrew

[Traci - Andrew 14]

Hi Everyone

Today 7th July 2010 the I-601 Waiver Status PDF File was Updated

The last update that we received was on Friday 25th June 2010 which was 12 days ago now, this update brings only the addition of 7 new UK & Ireland cases added to the Pending section, there was no other movement of cases to or from Under Review or Completed...

So the highlights of todays update are:

7 UK & Ireland based Cases in total were added to the "Pending" pile making a massive total of 54 UK and Ireland cases Pending!!

DBL2008 140 002 - DBL2009 604 002 - DBL2009 855 001 - LND2008 692 009 - LND2009 211 023 - LND2009 279 022 - LND2009 634 019

No cases were changed to Under Review which still leaves 8 UK based cases

No cases were completed either (NO MOVEMENT IN 19 DAYS), which means they have completed a total of 4 cases for the whole Month of June.

Well this was a good update for new Waiver filers but still no good for anyone already on the waiting list as Pending or Under Review. If your case number is above as a new case and you are on Visa Journey then please let me know your Case number and I will add VJ User and your Initials to the Spreadsheet.

Lets hope USCIS can update us again on Friday with some proper movement of cases rather than just adding a few to the list and calling that an update !!!.

As usual you can see these changes in my updated spreadsheet here > I-601 Status Update Spreadsheet 7th July 2010

Wishing you all the best for the next update.

Take care all..

Andrew

[jnurse68 0]

Hi Everyone

Today 7th July 2010 the I-601 Waiver Status PDF File was Updated

The last update that we received was on Friday 25th June 2010 which was 12 days ago now, this update brings only the addition of 7 new UK & Ireland cases added to the Pending section, there was no other movement of cases to or from Under Review or Completed...

So the highlights of todays update are:

7 UK & Ireland based Cases in total were added to the "Pending" pile making a massive total of 54 UK and Ireland cases Pending!!

DBL2008 140 002 - DBL2009 604 002 - DBL2009 855 001 - LND2008 692 009 - LND2009 211 023 - LND2009 279 022 - LND2009 634 019

No cases were changed to Under Review which still leaves 8 UK based cases

No cases were completed either (NO MOVEMENT IN 19 DAYS), which means they have completed a total of 4 cases for the whole Month of June.

Well this was a good update for new Waiver filers but still no good for anyone already on the waiting list as Pending or Under Review. If your case number is above as a new case and you are on Visa Journey then please let me know your Case number and I will add VJ User and your Initials to the Spreadsheet.

Lets hope USCIS can update us again on Friday with some proper movement of cases rather than just adding a few to the list and calling that an update !!!.

As usual you can see these changes in my updated spreadsheet here > I-601 Status Update Spreadsheet 7th July 2010

Wishing you all the best for the next update.

Take care all..

Andrew

Thanks Andrew for the update.we're all waiting anxiously to see what friday has in store for us.take care.

[Traci - Andrew 14]

Thanks Andrew for the update.we're all waiting anxiously to see what friday has in store for us.take care.

Lets hope they do update us on Friday, if not my prediction will be next Wednesday 14th July..

Anyway take care

Andrew

[jnurse68 0]

Lets hope they do update us on Friday, if not my prediction will be next Wednesday 14th July..

Anyway take care

Andrew

Andrew your case has taken sooooo long esp under review,more than 3 months is just too long.But its a good thing on the other hand ,most of the time if you dont hear any news its usually good news in the end.Did you have a huge waiver packet?Fingers crossed for july 14th .

[Traci - Andrew 14]

Andrew your case has taken sooooo long esp under review,more than 3 months is just too long.But its a good thing on the other hand ,most of the time if you dont hear any news its usually good news in the end.Did you have a huge waiver packet?Fingers crossed for july 14th .

Hi

We did have a rather large waiver packet, it was around 100 pages of legal jargon and backup evidence, I have wondered why our one is taking so long, but I am unable to think of any reasons... But as you say the longer it takes the better the chances, because if it was a definite denial then they would pick this up quickly I would hope.

Anyway lets hope they pull their finger out soon and get some more waivers completed.

Take care

Andrew

[Traci - Andrew 14]

Hi Everyone

Today is the 15th July 2010 and the I-601 Waiver Status PDF File was Updated at 12:34pm GMT

This is a massive update in comparison to previous updates, they have changed the status of 13 cases.

And our case has been completed in this update along with JNurse68's case, however we are still unaware of the decision made yet as we have no formal paperwork or contact from the USCIS? But I will update you all when we know and let you know of any hurdles we have to jump through to help anyone else in future.

So the highlights of todays update are:

3 UK & Ireland based Cases in total were added to the "Pending" pile making a massive total of 54 UK cases Pending!!

DBL2009 772 003 - LND2008 808 004 - LND2008 634 015

3 UK & Ireland based cases were added to Under Review from Pending which now leaves 5 UK based cases Under Review!!

LND2009 589 015 (Also Shown as Completed and *** Returned to DOS ***) - LND2009 549 013 - LND2009 042 063

7 UK & Ireland cases were completed which means that the USCIS have completed a total of 4 for the Month June and 7 so far for the Month of July.

LND2009 779 011 - LND2009 589 015 - LND2009 669 029 - LND2009 605 005 - LND2008 754 020 - LND2007 652 014 - LND2002 762 003

Well this was a great update for everyone today as the movement of cases was spread amongst New, Under Review and Completed but also a large amount compared to most other updates. If your case number is on the spreadsheet as either a new case or Pending case and you are on Visa Journey then please let me know your Case number and I will add VJ User and your Initials to the Spreadsheet.

Lets hope this is the beginning of the USCIS now starting to update us on a more regular basis and that they up their average cases per week figure from the 1.2 that they had a few weeks ago to the 1.4 that it stands at today continues.

As usual you can see these changes in my updated spreadsheet here > I-601 Status Update Spreadsheet 15th July 2010

Wishing you all the best for the next update and a great weekend with this fantastic hot weather we are enjoying in the UK with a bit of rain thrown in for pleasure.

Take care all..

Andrew

[Traci - Andrew 14]

Traci & Andrew

are

A P P R O V E D

As of 8:15am GMT (UK Time)

Received a phone call from the London US Embassy at 8:15am telling me that I have been approved, after our case was completed on the 12th July 2010 (4 days later), I was told that I just need to resubmit a new Police Certificate and go and get another (3rd) medical done, then once the Police Certificate arrives, I have to send this in by the Embassy Courier (Tel: 0871 562 6666) along with my passport, the Medical results will be sent direct from the doctors within 4 working days from my appointment (10:30am Thursday 22nd July 2010).

So if everything works to plan, by the end of July, the US London Embassy will have everything they need to issue my visa, this process I have been told should only take 5 to 10 working days before I have my passport back with the visa inside, this would mean that I would be able to go to the USA by Mid August 2010, however we have made plans for Traci to visit for 6 weeks in September and our 2nd wedding anniversary is in the first week of November so we have decided to delay my entry in to the USA until after our 2nd anniversary allowing us to get an IR-1 (10 year Green Card) instead of going a few months earlier and only obtaining a CR-1 (2 Year Conditional Green card).

I will give more info about the process and timescales as and when they happen so that you can learn from my experiences.

Thanks for all your support

Andrew & Traci