Imperium

9 FAM 305.4-3(A) (U) Department of State's INA 212(d)(3)(A) Waiver Authority (CT:VISA-1620; 09-07-2022) (U) The Congress, in enacting INA 212(d)(3)(A), conferred upon the Secretary of State and consular officers the important discretionary function of recommending waivers for NIV ineligibilities to the Department of Homeland Security (DHS) for approval. You should not hesitate to exercise this authority when the applicant is entitled to seek waiver relief and is otherwise qualified for a visa, and when the granting of a waiver is not contrary to U.S. interests. The proper use of this authority should serve to further our immigration policy supporting freedom of travel, exchange of ideas, and humanitarian considerations, while at the same time ensuring, through appropriate screening, that our national welfare and security are being safeguarded. 9 FAM 305.4-3(B) (U) Criteria for Waiver Recommendation (CT:VISA-1620; 09-07-2022) (U) The following conditions must be met before an INA 212(d)(3)(A) waiver can be recommended or granted: (1) (U) The applicant is not ineligible under INA 214(b); (2) (U) The applicant is not ineligible under INA 212(a)(3)(A)(i)(I), INA 212(a)(3)(A)(ii), INA 212(a)(3)(A)(iii), INA 212(a)(3)(C), INA 212(a)(3)(E)(i), or INA 212(a)(3)(E)(ii); (3 (U) The applicant is not seeking a waiver of nonimmigrant documentary requirements of INA 212(a)(7)(B), which may only be waived under the provisions of INA 212(d)(4). See 9 FAM 201.1; and (4) (U) The applicant is otherwise qualified for the NIV they are seeking. 9 FAM 305.4-3(C) (U) Factors to Consider When Recommending a Waiver (CT:VISA-1620; 09-07-2022) a. (U) You may, in your discretion, recommend an INA 212(d)(3)(A) waiver for any nonimmigrant whose case meets the criteria of 9 FAM 305.4-3(B) above and whose presence would not be harmful to U.S. interests. Eligibility for a waiver is not conditioned on having a qualifying family relationship, or the passage of a specific amount of time, or any other special statutory threshold requirement. The law does not require that such action be limited to humanitarian or other exceptional cases. While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose of travel. b. Unavailable c. (U) You should consider the following factors, among others, when deciding whether to recommend a waiver: (1) (U) The recency and seriousness of the activity or condition causing the applicant's ineligibility; (2) (U) The reasons for the proposed travel to the United States; and (3) (U) The positive or negative effect, if any, of the planned travel on U.S. public interests. (4) (U) Whether there is a single, isolated incident or a pattern of misconduct; and (5) (U) Evidence of reformation or rehabilitation. d. (U) Explain your basis for recommending a waiver in the comments section of ARIS (the Admissibility Review Information System), including identifying any factors that lead you to conclude the applicant has been rehabilitated and unlikely to repeat actions that led to the ineligibility. Any additional supporting documentation should be uploaded as this information will be considered by CBP's Admissibility Review Office ("ARO") and decreases the likelihood of an "Information Required" response from ARO. All documents should be scanned into NIV using a jpeg image format. The PDFs are not displayable to those outside of the consular section. It would be next to impossible to overcome Section 214(b). Countries like India where general pattern is mass immigration, CO are reluctant to grant NIV waivers. 130 may be the best route. I missed, did OP completed their degree?

B is next to impossible with an overstay, not to mention current NIV appointment time of at least (176 days in Chennai to 589 in Mumbai).

It is in english🤪

I would still focus on ROC.

What I meant to say is that a trial is an ultimate part of this process and it did happen. Point is, our focus should be on an issue that we believe we merit the grant and that is compelling CIS to adjudicate ROC. N400 will get adjudicated once ROC is approved. One thing to rememeber is that in case of people having issues (case related and dynamics) at home, when they petition the court, they should get them ready because FDNS will rush to visit the house to close any loop that is holding up the case.

If CIS dont agree to your conditions or have challenges, trial (hearing) is the next step.

8 U.S.C Sect 1447(b) and interpreting Courts have held that the 120 after the date of an interview a temporal parameter to assess delay. N400 cant be argued as delayed if an examination ahs not occured and 120 days have not passed yet. As is the case of OP. He has yet to have an examination trigerring the 120 days requirement.

ROC is not dependent. However, in case of a trial, it may be difficult to argue that a delay has occured on N400, absence of an examination. It then takes the focus away from main issue.

Because you cant argu that an N400 is delayed. You can only argue for ROC. If you combine both, it just makes the argument more complex. If an ROC is what is causing the delay, why then include N400 ( assuming the examination has not taken place). Just my understanding!

I think doing WoM for both may add complexity to it. Strategically, I would file WoM first and get the ROC moved out of the way. It will help push the N400. I do not think N400 will take long after that. Once you have an interview, if there is a delay, invoke your right under 8 U.S.C Section 1447(b) by depriving USCIS of jurisdiction. It is their worse nightmare. Most foundamental difference in WoM and Action under Sect 1447(b) is the WoM draw sustenanace from APA and forces an employ to work. While Sect 1447(b) is precisely for naturalization delays AFTER an interview. WoM grant Court and CIS concurrent jurisdiction, while Sect 1447(b) deprives USCIS of jurisdiction once District Court recieves your case. Since WoM seeks to remedy administrative delay , In my modest openion, WoM for an ROC is the best tool. Tactically, you are trying to caliberate legal pressure on USCIS that is enough to add urgency to your case. Chosing RoC alone gives your case more traction because of an undisputed delay, unlike the N400.

Okay, I just dont see why couple answer would prompt an IO to ask for withdrawal. She could have sent RFE.

F1 visa is usually for four years (four years and 9 months for engineering), at the time of your marriage, were you in F1 status? When did your F1 status expire?

A-File (Admin File) is the file that contains everything you have filed with USCIS and anything DHS has collected on you through their own sources. It will help you see if there is anything deragatory. This is just my suggestion. I am more into litigation than adminsitration. of benefits. Let other chim in on your question! When did you arrive in the US? Were you an undergrad or grad student?

Your english dont seems to support that you have attended college, however, that is beyond the scope of our discussion. It appears that somewhere along the way, you have violated your F1 status. You then sought AOS through marriage to USC, and eventually divorcing your wife. You then applied for Naturalization and now IO, while looking back, questions the intent of your marriage. You should request your Afile and see what is in there. I do not believe an IO will simply ask an applicant to withdraw an N400 just because they wrongfully answered couple questions.

What happened to your F1? Did you not attend college? Was your F1 status valid at the time of your marriage? When did you get married? How long were you married to that person?