I-601 Waivers - CIS Ombudsman Teleconference, August 26, 2009

1.  Why do some I-601 waivers of inadmissibility take so long to adjudicate?

USCIS Response:   Several factors affect the processing time of a Form I-601, Application for Waiver of Grounds of Inadmissibility.  The factors include the location where application is filed, the complexity of the facts of a case, and the need for any additional research or information, such as a request for additional evidence (RFE). 

The location where an application is filed impacts processing time in two ways:

• First, the location of the filing may impact how long it takes for USCIS to receive the application.  Outside the United States, I-601s are filed with the Department of State Embassy or Consulate that has jurisdiction over the applicant’s residence.  If an application is filed in a country where USCIS does not have a presence, the Department of State mails the application packet to the USCIS office that has jurisdiction.  For example, if the application is filed in Colombia, where USCIS has no presence, the application will be mailed to the USCIS office in Panama.  The mailing process may result in delays.  
• Second, the filing location may affect processing times because of heavy workloads  in particular offices. Currently, most USCIS offices (both overseas and domestic) are generally processing I-601 forms in approximately 4 months. 

The USCIS office in Ciudad Juarez, Mexico receives approximately 80% of all I-601 overseas filings.  Processing times for approximately 50% of applications filed in Ciudad Juarez have been 12-15 months, all others are processed in less than one week.  Processing time is dependent upon whether the I-601 can be immediately adjudicated or if it must be referred.  In Ciudad Juarez, Form I-601 receipts grew 570% from 3,280 in FY2005 to almost 22,000 in FY2008, overwhelming the production capacity of the office.  The dramatic increase in receipts and inability to quickly add staff to the office in Ciudad Juarez resulted in a backlog of certain cases. 

It is difficult to increase staff in an overseas office for a number of reasons.  For example, USCIS presence overseas is limited by space constraints imposed by the Department of State.  Increased space for USCIS is subject to Department of State approval.  Despite these limitations, USCIS increased the staff at the Ciudad Juarez office in FY2009 by adding two additional officers. 

In light of the staffing constraints and large volume of applications received at Ciudad Juarez, this office significantly streamlined the process to institute procedures to permit same-day or next-day adjudication of clearly approvable waiver applications.  This enabled a significant number of applicants to receive their immigrant visas almost immediately after filing the Form I-601. 

Approximately 50% of all applications filed have been found to be clearly approvable on the evidence submitted with the application.  The remaining 50% are “referred” to other officers for further consideration.  The issues presented by I-601 applications can be very complex and require additional consideration or research.  In those instances, the same-day adjudicator may determine that the issues presented require research or that the application must be denied, because the applicant is not eligible for a waiver. 

Also, I-601 applications are sometimes incomplete and additional supporting documentation is needed before the case can be adjudicated. The more complex cases, cases that require denial, and incomplete submissions, which are “referred” to another adjudicator for further consideration and adjudication, require more time.  Due to insufficient resources, the International Operations Division developed a backlog of these referred cases.  

We have established a backlog elimination plan for FY2010, which includes using the resources of officers in the International Adjudications Support Branch (IASB), a branch of the International Operations Division that USCIS stood up in Anaheim, CA in May of 2009, as well as asylum officers in the Los Angeles and Miami Asylum Offices.  Officers from Domestic Field Offices are also assisting in the effort to eliminate the I-601 backlog.  In FY2009, USCIS significantly increased resources dedicated to process the pending referred I-601s and has dedicated even more resources in FY2010, with an aim to obtain a 6-month or less processing time for the referred cases by the end of the fiscal year.

2.  Why are processing times for I-601 waivers of inadmissibility not posted on the USCIS website?

USCIS Response:   USCIS recognizes the importance of sharing as much information as possible regarding processing times with our applicants. Some overseas offices currently post information regarding processing times on their local Department of State websites, and applicants and their representatives are encouraged to check those sites. USCIS understands that it would be helpful for applicants and their representatives to have more information on the status of their applications.  We are working to improve our communication of this information and to develop a better process to notify applicants by posting information on our website.  This is a priority for USCIS, and we hope to have a better process in place in the near future. 

3.  What are the current processing times?

USCIS Response:  Processing times for I-601s that are filed within the United States are currently 4.3 months. 

Processing times differ among our overseas offices, though almost all overseas offices are processing Forms I-601 in less than 4 months.  At Ciudad Juarez, approximately 50% of the I-601 waivers filed are adjudicated within 2 days.  The average processing time for cases that are referred for adjudication is currently 12-15 months.

4.  How can a customer find out where his/her case is being adjudicated? 

USCIS Response:  Generally, for applications file within the United States, a Form I-601 will be adjudicated where the principal application is being adjudicated.  For example, if the Chicago Field Office will be adjudicating the I-485, they will also likely adjudicate the I-601 accompanying that I-485 application. 

Form I-601s that are filed outside the United States are adjudicated by the office that has jurisdiction over the country of residence of the applicant.  All overseas offices have a P.O. Box and an email address where queries may be sent.  This information may be found on the USCIS homepage at www.uscis.gov by clicking on “Find a USCIS Office.”

For applications filed at Ciudad Juarez, some applications are adjudicated by officers at the USCIS Field Office in Ciudad Juarez and others are transferred to the other offices for adjudication, including, but not limited to, the USCIS Field Offices in Monterrey, Mexico and Mexico City, the in Anaheim, California, the Los Angeles Asylum Office, and the Miami Asylum Office.  If the case has been transferred to the IASB, the applicant and representative will receive a transfer notice and can send inquiries to IASB at:
USCIS.InternationalOps-LABranch@dhs.gov. 

Currently, applicants who do not receive such a notice may submit a written inquiry to:
mexico.uscis@dhs.gov or by postal service to the address provided on USCIS’ website as mentioned above.

5.  Where should additional evidence be sent? 

USCIS Response:  Evidence should be sent to the office where the case is being adjudicated.  Information on where to send additional evidence is provided on any Requests for Evidence (RFE) that USCIS sends to an applicant. 

6.  How can a customer find the status of his/her case?

USCIS Response:  For I-601s that were not filed in the United States, some overseas offices have posted processing times on their Department of State websites, so applicants are encouraged to check there.  A customer may also contact the overseas office where the Form I-601 is being adjudicated by postal mail or by email.  That information may be found at www.uscis.gov.

For cases filed at Ciudad Juarez, inquiries should be sent by mail to the Ciudad Juarez Office or by email to mexico.uscis@dhs.gov.  For cases being adjudicated at IASB, inquiries regarding case status can be sent by email to USCIS.InternationalOps-LABranch@dhs.gov or by writing to the following address:

USCIS International Operations
P.O. Box 65006
Anaheim, CA 92815-5006.   

For I-601s that were filed in the United States, applicants may call the USCIS Contact Center at 1-800-375-5283.  The customer service representative will take a service request and forward it to the office that is adjudicating the I-601.  The applicant should receive a written response within 30 days.

7.  Once a case is denied, what are a customer’s options?

USCIS Response: Motions to reopen or reconsider and appeals to the Administrative Appeals Office (AAO) are filed on Form I-290B, Notice of Appeal or Motion.  Follow the filing instructions that accompany the denial notice for where to send Form I-290B.  

8.  Once an Appeal or Motion to Reopen or Reconsider is filed, is there anything else a customer can do to have his/her case resolved?

USCIS Response:  A USCIS adjudicator reviews each appeal, regardless of whether it is timely filed to determine whether favorable action on the application is warranted.  If favorable action is warranted, the adjudicator treats the appeal as a motion to reopen or reconsider.  If favorable action is not taken, the appeal is forwarded to the AAO.   A case is considered resolved when a decision has been made on the appeal or motion. 

9.  What is USCIS protocol if an I-601 waiver of inadmissibility is denied, the case is appealed, and it is determined that the USCIS adjudicator did not follow proper procedures? 

USCIS Response:  If the AAO determines that the appeal should be sustained and the waiver granted, it will send a notice of the approval to the applicant and any representative of record, put the decision in the A-file, and return the A-file to the Field Office that denied the waiver application.  The Field Office will prepare the appropriate documentation and notify the Consulate, if applicable, of the decision for issuance of the immigrant visa.

Field Office Directors (FOD) are required to review carefully the decision and, if errors are identified, take any appropriate remedial action, such as providing additional training, to prevent similar errors from occurring in the future.  If the decision addresses novel areas of law, the decision is forwarded to the District Director for dissemination throughout USCIS.

Additionally, if an applicant or representative believes that an adjudicator in an overseas office is not following proper procedure, he or she is encouraged to raise the issue with the Field Office Director or District Director in the District that has jurisdiction over the Field Office.  We are committed to correcting any errors, taking remedial actions as appropriate, and improving our training programs to prevent errors, as we learn from prior mistakes.

10. After the USCIS office in Ciudad Juarez, Mexico reopened following their H1N1-related closing, it seemed that a high volume of cases were denied or referred.  Is this accurate, and if so, is there reasoning behind this?

USCIS Response:  While there was a slight increase in referrals immediately after the Consulate suspended taking applications for one day due to H1N1, this was not statistically significant and was consistent with fluctuations in approval rates when comparing very short periods of time.  The overall average approval rate remained consistent on a monthly basis.  Approval rates for the relevant months were as follows:  April 2009 was 45.3%, May 2009 was 43.7%, and June was 44.8%.  The closing and slowdown in May did not significantly affect the referral or approval rate.

11.  USCIS will oftentimes issue boilerplate letters and/or requests for evidence, which are not specific enough to be helpful to the applicant.  In fact, this often results in the applicant re-sending much of the same information.  Does USCIS plan to issue more detailed, case-specific requests for evidence in the future? 

USCIS Response:  It is our intent to issue clear and detailed requests for evidence.  During the previous fiscal year a significant amount of time was spent reviewing, evaluating, and rephrasing RFEs.  USCIS management and Quality Unit personnel review the casework on an on-going basis and make course corrections where needed. In addition, Service Center Operations is currently including RFEs in their Quality Assurance Review.
Our program experience indicates that some applicants do not provide required initial evidence or sufficiently detailed supporting documents with the initial filing resulting in the need for an RFE to establish the legal benefits sought. USCIS evidentiary requests are general in nature to allow the applicants leeway to determine which documents will satisfy the evidentiary requirements. The burden is on the applicant to establish eligibility and we will continue to review any and all evidence submitted.

For applications filed overseas, if the applicant has questions or concerns about the RFE that he or she received, the applicant may contact the Field Office Director that has jurisdiction over the application or, if the application is at IASB, can send an inquiry to the email address provided in response to question #6.  USCIS is also working on a plan to issue more detailed RFEs when notifying applicants at Ciudad Juarez that an application must be referred for further processing.  We welcome specific feedback from applicants and representatives on the language in the RFEs, which will be taken into account as we work to improve the process. 

12.  Many applicants are under the impression that they can file an I-601 waiver of inadmissibility without any supporting documentation and provide additional information during the interview.  However, it seems as though a high volume of cases have been denied because of insufficient information.  Is there a preferred way of submitting supporting documentation?

USCIS Response:   Information on supporting documentation that should be submitted with an I-601 application is provided in the instructions that accompany the form.  Applicants should always submit supporting documentation directly with their application, rather than waiting for USCIS to request it.  Failure to submit evidence in support of the waiver request may result in a denial.  It is also important that the documentation relates to the specific claims of the case and that documents in foreign languages include a translation.

13. Oftentimes, notarios erroneously file I-601 waivers of inadmissibility, leading to denials or detailed requests for evidence to clients.  Is there a way that USCIS can specially handle these types of cases?

USCIS Response:  For cases that are filed overseas, consular officials inform applicants of the relevant inadmissibility grounds at the time of the consular interview.  At that time, the consular official also provides the applicant with a notice and instructions on how to submit a waiver.  Applicants should follow the consular official’s instructions when preparing a waiver.  As such, USCIS will not specially handle cases prepared by notarios. 

Applicants are also encouraged to review our webpage “Finding Legal Advice” before retaining legal representation.  This page can be found on www.uscis.gov under the “Laws” heading on the homepage. 

14. Is there a formal process for inquiring into pending Forms I-212 at local USCIS offices?

USCIS Response:  For inquiries on Forms I-212 filed with a domestic office, applicants may call the National Customer Service Center at 1-800-375-5283.  The customer service representative will take a service request and forward it to the office that is adjudicating the I-212.  The applicant should receive a written response within 30 days.

Applicants who file Forms I-212 with an office outside the United States may inquire about the status of the application in the same manner as explained in response to question #6.

15. A customer requested expedited processing of an I-601 waiver of inadmissibility case due to complications with her pregnancy.  The expedite request was denied; however, there still continues to be other types of hardship that are not related to her medical condition.  What can she do? 

USCIS Response:  USCIS will expedite an I-601 in certain circumstances.  A denial of a request for expedited processing does not necessarily mean the waiver will be denied.  At the time a waiver request is adjudicated, even if the request for expedited processing was denied, all hardship factors that were brought forth in the application will be considered.

16. Are I-601 waiver applicants eligible for fee waivers?

USCIS Response:  USCIS may waive the filing fee for Form I-601 only for an alien who is:

• A VAWA self-petitioner
• A T or U nonimmigrant
• An alien who is seeking adjustment of status with respect to whom inadmissibility under section 212(a)(4) of the Act (public charge) does not apply. 
  In any other case, the applicant must pay the filing fee.  

17.  How would the removal of HIV from the list of communicable diseases of public health significance affect I-601 waiver of inadmissibility processes and procedures? 

USCIS Response:   In September 2009, USCIS advised adjudicators that they could continue to approve waiver applications for aliens with HIV infection, if the aliens qualified for waivers under current law.  USCIS continued to approve waivers, where appropriate, until January 4, 2010.  As of January 4, 2010, HIV infection no longer makes an alien inadmissible to the United States.  Thus, an alien no longer needs to obtain approval of a Form I-601 in order to seek an immigrant visa.  

18. Do different consulates have different criteria for adjudicating I-601 waivers of inadmissibility?

USCIS Response:  We understand this question to refer to USCIS offices located in U.S. consulates as consular officers do not adjudicate I-601 waivers. USCIS officers do not have different criteria for adjudicating I-601 waivers.  USCIS officers follow the criteria set forward in regulation and case law.

19.  Will USCIS be reviewing and/or revising its criteria for extreme hardship?

USCIS Response:  USCIS follows the legal standard for extreme hardship as established by relevant BIA decisions and AAO decisions. USCIS has established quality assurance reviews for all field offices and strives to ensure consistent application of the criteria.

20.  There seems to be little communication between USCIS and the Center for Disease Control and Prevention for cases involving medical waivers.  Is anything being done to address this issue?

USCIS Response:  USCIS and CDC communicate regularly for cases involving medical waivers.  We, therefore, are unaware of a situation that has led to the perception of a lack of communication.  If there is a specific case in which the applicant or representative believes a lack of communication has impacted the processing of a medical waiver case, we would be pleased to look into that case.

21. Would USCIS consider expediting the adjudication of I-601 waivers of inadmissibility for individuals who are overseas over individuals who are in the U.S.?

USCIS Response:  Our aim is to adjudicate timely all waivers regardless of location.  We are striving to improve processing time, but resources overseas are limited and cannot be expanded easily.  We are addressing this issue by bringing some of the overseas adjudicative workload into the U.S.  The recent creation of the IASB is an example of our efforts in this direction.  We will, however, consider requests to expedite a case if there are compelling reasons.