In Other News: CLINIC’s Update on Provisional Waivers

4 Oct

Despite the government shutdown, USCIS carries on processing applications and petitions at its glacial pace as usual, including the large number of provisional unlawful presence waiver applications (I-601As) that have been filed since they were first accepted in March 2013, and a corresponding high number of I-130 Immediate Relative Petitions pending approval.

We have written on the unlawful presence waiver topic many times, but have been thirsty for statistics and helpful information on the process. Our thirst has been quenched! Last week the Catholic Legal Immigration Network, Inc. (CLINIC) conducted an intensive training on provisional unlawful presence waivers, including an update and presentation by Robert Blackwood, the Assistant Section Director for Adjudications at the National Benefits Center (NBC), which serves as a pre-processing center for applications adjudicated at USCIS field offices, including I-130 immediate relative petitions and I-601A applications for provisional waivers. CLINIC generously has circulated the update on the NBC’s I-601A process, and we share portions of it with you here.

I-601A Adjudication Process

All I-601As are filed at the Chicago Lockbox, which reviews submissions under rules that address document sufficiency. If an application is rejected for sufficiency reasons, the rejection should be accompanied by an explanation of deficiency. If the application is accepted, the Chicago Lockbox creates a case receipt file and forwards it to the NBC. Division 1 (of eight divisions) at NBC is responsible for I-601A adjudications and currently is staffed with between 45-50 adjudicators and 5 supervisors. Once a forwarded application is received at the NBC, the NBC goes through its own initial processing checklist to determine if the application is complete. If NBC staff determines documents are missing, it issues a Request for Evidence (RFE); otherwise, it will schedule the applicant for a biometrics appointment. When the biometrics and the name check results come back, the application is transferred to the “JIT” (“Just in Time”) shelves and is considered ready to be adjudicated.

Division 1 Supervisors assign cases to adjudicators when they are ready to be adjudicated. When an adjudicator receives a file, he or she first looks for basic eligibility – name check and biometrics response, national security issues – and if there is a “hit,” the file is forwarded to a security clearance team for resolution. For cases that pass security clearance or do not have “hits,” the adjudicators follow a “processing checklist” sheet, which guides them through the process of determining statutory eligibility for the waiver (e.g., USC qualifying relative) and whether the applicant has satisfied the extreme hardship standard. The adjudicator makes notes on the processing checklist, for purposes of decisionmaking and supervisor review. If the case is denied, the file is sent to the National Records Center, where it will be stored. If it is approved, the file will be sent to the Texas Service Center (TSC). The TSC holds on to the case files so they can be matched up after the applicant immigrates. The NBC sends the applicant and the representative the written approval or denial decision.

The NBC sends the National Visa Center (NVC) an electronic data report on I-601A receipts on a daily basis, so that the NVC can stop processing the immigrant visa (IV) application until there is a decision on the waiver application. A “decisions” report is sent to the NVC every week, to inform the NVC of waiver application outcomes so that the NVC can then proceed with IV processing. The NBC does not send the actual I-601A decision to the NVC; it only sends notification of whether the I-601A was approved or denied. If the NBC denies the application because it has a “reason to believe” the applicant might be inadmissible under another ground, it only informs the NVC that the waiver application was denied.

For the first two months of provisional waiver adjudication, all applications were reviewed by division supervisors to ensure that the appropriate decisions were being made. Now, all denials are reviewed by the supervisor and approvals are only spot-checked. If a supervisor has questions or concerns about a particular decision, the encourages a dialogue with the adjudicator to find out more about the decision recommendation, but does not instruct the adjudicator on how to rule in a particular case. If there is still disagreement as to whether the application should have been approved or denied, the supervisor may seek further guidance from one of the section chiefs.

Every week a report is generated indicating how many applications were adjudicated. The NBC communicates and shares data with the State Department to determine whether I-601A applicants who were denied were later approved by the consulate through an I-601 waiver, and whether applicants whose I-601As were approved were later denied by the consulate due to a finding of inadmissibility on a ground other than unlawful presence. The statistical evidence is not yet meaningful to draw any conclusions on these issues.
If an I-601A applicant who is denied elects to re-file, the NBC will pull the original application and check it against the new application.

Statistics

The NBC has provided the following numbers based on I-601A applications received or adjudicated from March 4 – September 14, 2013:

23, 949 applications were sent to Lockbox
17,996 applications were accepted by Lockbox
5,953 applications were rejected by Lockbox

The reasons for rejection could include no applicant signature, no proof of I-130 approval, no proof of NIV fee paid, or applicant is under 17. The number of applications received may include re-filings by applicants whose cases were initially rejected at the Lockbox.

The NBC currently has 12,098 applications in the pipeline, with approximately 2,300 ready for processing. It is averaging approximately 600 applications/week, so it has about four weeks of applications to adjudicate. With 45 adjudicators currently working these cases, this averages out to each adjudicator handling about 13 applications per week, or about 2.6 per day. Mr. Blackwood noted that adjudicators have other work responsibilities, including time spent in trainings and at meetings.

The NBC has issued the following decisions:

3,497 approvals (59%)
2,292 denials (39%)
103 administrative closures (application returned for various reasons, e.g., filed I-601 instead of I-601A) (2%)

Although applications have been denied for various reasons, the highest number of denials – 1,093, or 48% of all denials – is for “reason to believe.” That is, the adjudicator has reason to believe that the applicant is inadmissible for reasons other than unlawful presence. The second highest number – 937, or 41% of all denials – is for failure to establish extreme hardship. Other reasons for denial include: abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and applicant subject to existing or final order of removal.
At present, the average time between receipt of an application at the Lockbox and decision issuance is 103 days. The goal is to reduce the adjudication time to 90 days, the pace at which NBC adjudicators were working until “reason to believe” denials became a controversial issue.

Reason to Believe

USCIS has no authority to determine admissibility in a case to be decided by the consulate after the applicant has left the United States and appeared for the interview. Mr. Blackwood explained that the provisional waivers working group developing the I-601A regulations and procedures for processing wanted USCIS officers to limit their consideration to waiver adjudication, leaving inadmissibility determinations as a function of the Department of State. In other words, the USCIS did not want its adjudicators analyzing whether the applicant was inadmissible on grounds other than unlawful presence, but at the same time, the USCIS did not want to approve I-601As and have the applicant be denied at the consulate for another ground of inadmissibility.

That was the rationale for developing the “reason to believe” standard, where the adjudicators make a quick assessment as to whether the applicant might be inadmissible on a ground other than unlawful presence, based on the name check and biometrics results. Under this standard, adjudicators are instructed to deny all applications involving a criminal conviction, regardless of the type of conviction, when it occurred, or whether it fell within a recognized exception to inadmissibility, like a petty offense. If the fingerprint check resulted in a “hit” that revealed a conviction, then the application was denied under the “reason to believe” standard. Similarly, if there was an inconsistency in the name or date of birth of the applicant and that provided during CBP processing for voluntary departure after an arrest at the border, the applicant was denied for “reason to believe.”

The NBC staff soon realized that this broad application of the “reason to believe” standard led to a high denial rate. Given this development, Mr. Blackwood announced that, as of six weeks ago, NBC stopped issuing any “reason to believe” denials and is suspending adjudication of cases where this issue is present while USCIS and DOS reconsider the current policy and decide how to proceed in the future. During this time, the 1300 pending cases that involve a potential “reason to believe” concern are being held in abeyance, and will not be adjudicated until there is further guidance. Mr. Blackwood noted that if the “reason to believe” standard is changed so that not all of the denied cases would warrant denial under revised interpretation, the NBC will consider whether to apply any new policy retroactively and reopen denied cases sua sponte.

While there is no mechanism to appeal a denial or seek reconsideration, the NBC can reopen a case on its own if it believes a denial was made incorrectly based on misapplication of the reason to believe standard, including, for example, cases where the applicant’s name and date of birth appear inconsistent as a result of clerical or insignificant error, but not including cases containing criminal convictions. Mr. Blackwood indicated during his presentation that denials made under the reason to believe standard that seem clearly wrong could be brought to his attention, and he would pull the file to see if the agency made a mistake. To bring those cases to Mr. Blackwood’s attention, applicants were directed to send an e-mail to CLINIC training leaders at sschreiber@cliniclegal.org or cwheeler@cliniclegal.org, and to include the name of the applicant, the waiver receipt number, and the “A” number, as well as a brief description of the issue (e.g., month and day of applicant’s date of birth were transposed; applicant’s name recorded incorrectly).

Adjudication of Extreme Hardship and RFEs

Current policy does not mandate that the agency issue a Request for Evidence (RFE) before issuing a denial, but NBC adjudicators typically will issue an RFE if they believe additional documentation will help them reach a decision in a case. (For example, if an applicant claims a health-related hardship, but only submits financial evidence, or if the applicant claims multiple hardships but submits evidence supporting only one claimed hardship, or weak evidence of hardship.) If the applicant claims hardship and the officer believes sufficient evidence was presented but that the extreme hardship standard was not met, then the adjudicator can simply issue a denial without issuing an RFE. In other words, if additional documentation would not add any value to the hardship claim, the NBC will forgo issuing an RFE. Mr. Blackwood noted again that all denials are reviewed by a supervisor.

RFE response times are set at 30 days so that consular processing is not delayed. A request for an extension may be considered if there are compelling reasons warranting additional time to respond to the RFE.

Comparison with NSC Adjudications of I-601

Mr. Blackwood explained that NBC staff made adjustments to their standards for evaluating “extreme hardship,” in the wake of exchanging information and statistical data with the NSC regarding its adjudication of I-601 waivers, as well as reviewing AAO waiver denial reversals. Adjudicators are now assessing extreme hardship to the qualifying relative as impacted by hardships to other family members. As a result, the denial rate has come down and the NBC is approving more applications. Mr. Blackwood anticipates that the denial rate will continue to go down as adjudicators gain more experience.
Mr. Blackwood also noted that the provisional waiver is more challenging for the applicant, because the hardship to the qualifying relative is prospective, as opposed to the I-601 applicant who has left the United States and whose qualifying relative is already experiencing the hardship. For this reason, the denial rates will not necessarily be comparable.

Waiver Submission Format

Mr. Blackwood encourages applicants to submit a cover letter or brief that summarizes the hardships and helps the adjudicator understand the theory of the case, and all supporting evidence that is pertinent, such as a doctor’s letter summarizing medical conditions. The Chicago Lockbox removes all tabs and bindings, so applicants are encouraged to use some kind of pagination system to help identify and segregate supporting documentation. The original submission is sent to the NBC – any highlighting of important documentation or color dividers separating exhibits will be retained.

If submitting supplemental information after the application has already been submitted, make sure to include the receipt number and the A#. Avoid sending multiple pages from the Internet on a specific medical condition (e.g., definition of diabetes) or DOS country conditions reports.


In the coming months…

Stay tuned for a formal decision from the USCIS on whether the NBC will modify the way it adjudicates I-601As with respect to the “reason to believe” standard. Expect the NBC’s current approval rate (approximately 60%, including reason to believe denials) to increase.

Many thanks to CLINIC for this thorough and helpful information!

2 Responses to “In Other News: CLINIC’s Update on Provisional Waivers”

  1. edwin aimufua October 8, 2013 at 5:38 am #

    Thank you for such insightful analysis. Absolutely a ‘must read’ for all immigration practitioners.
    -Edwin Aimufua

  2. A D Pereira October 8, 2013 at 10:38 am #

    Super informative and wonderful explanations of relevant legalese and acronyms. Thanks!

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