Filing Waiver in Mexico - New I601 Update

The following is a summary of the updated information provided from Ciudad Juarez by Charles Wheeler. Caseload. The consulate continues to be the largest and busiest immigrant visa (IV) post in the world. For the last fiscal year the consulate processed more than 89,000 immigrant visa applications.

That is a 3,000 application gain over the prior year.

The consulate has been experiencing a steady increase in applications – especially in the last few months – and anticipates that it will be processing approximately 135,000 IV applications during this current fiscal year. For example, last month the consulate processed 14,000 IV applications, and for the first three months next year it anticipates processing 16,000 cases per month. The consulate averages between 700 - 950 IV applications per day.

As of December 11, 2006, the National Visa Center (NVC) began scheduling the IV appointment interviews for immediate relative applications. At that time a sizeable backlog had developed at the consulate, due to a combination of staffing shortages and increased workload. This caused immigrant visa applicants to wait almost 10 to 12 months for the consulate to schedule the IV interview from the date it received the file from the NVC. As of the end of September 2007, the backlog in immigrant visa applications had been reduced to approximately 41,000 cases. This was comprised of approximately 25,000 immigrant visa applications scheduled by the consulate under the prior system and 16,000 cases where the visa appointment was scheduled by the NVC. As of today, the "local" backlog has been eliminated. The only remaining backlog is that which exists at the NVC.

By mid-March 2008, the consulate believes that it will be able to comply with the "30/60-day" Congressional mandate. That rule requires the consulate to schedule an IV interview within 30 days of receipt of an immediate relative application from the NVC; the consulate must schedule the interview within 60 days for a preference category case. Due to the high volume of applications and increased demand, the consulate has been unable to meet that requirement.

Upcoming move. The consulate anticipates a huge demand for services next year when millions of laser visas (border crossing cards) throughout Mexico will need to be renewed. Another demand will come through implementation of the Western Hemisphere Travel Initiative, which will require U.S. citizens to have a passport to travel to and from Mexico. The consulate will be moving into new facilities in June 2008, which will be larger, more modern, and better able to accommodate the increased number of immigrant and nonimmigrant visa applicants, as well as U.S. citizens seeking services. All of the various consular and USCIS offices will be housed together in this new compound, which will be located a little bit farther into Cd. Juarez (nine miles from the Port of Entry).

The physical move next summer should not cause much interruption in services.

The consulate plans on closing down services on a Wednesday and re- opening on the following Tuesday.

Communications. As a result of the increased caseload, backlog reduction efforts, and preparation for upcoming surges, the consulate has decided to suspend e-mail communications with practitioners for the next six to eight months.

Responding to e-mails had become very time consuming, with many practitioners sending follow-up questions and using it almost as a "chat" session. At the present time, applicants and practitioners must communicate with the consulate only through the Call Center. That number is 900-476-1212. If calling from Mexico dial 01-900-849- 4949. While practitioners may not receive the same type of response they were used to getting, Mr. Burciaga encouraged them to please continue using this service. The Call Center is submitting regular reports and the consulate is monitoring the service they provide. If the inquiry is particularly urgent, send a fax to the Immigrant Visa Chief and state your case.

The fax number is 011-52-656-616-9056.

For example, if you need to cancel an IV appointment, contact the Call Center. It will send a report to the consulate, which will in turn make a notation in the electronic file and send verification to the Call Center. In addition, you may also fax your request to the consulate, which will allow you to receive written confirmation that your communication was received. However, the faster and preferred method is to communicate through the Call Center.

The consulate will accept G-28s, Notice of Entry of Appearance as Attorney or Representative, signed by either the I-130 petitioner or beneficiary.

However, the USCIS, when adjudicating a waiver application, will only accept G-28s signed by the IV/waiver applicant.

Denials. Approximately 18-20 percent of the IV applicants are found inadmissible and require a waiver. Most of these are based on the unlawful presence ground of inadmissibility. In the last fiscal year, the USCIS adjudicated approximately 10,800 waiver applications, and for next year it anticipates processing almost double that.

K-3 visa applications. The consulate has also reduced the backlog in K-3 applications from U.S. citizens on behalf of spouses residing abroad. The wait time is now greatly reduced. If the consulate has started processing for the nonimmigrant visa and it receives the approved alien relative petition (Form I-130 and IV application) , it will ask the applicant which visa he or she would prefer to receive. If the applicant would prefer to receive the immigrant visa, the consulate will cease processing for the K-3, or vice versa. Having made that election, however, the applicant cannot change his/her mind.

Medical exams. As a result of new guidelines from the Center for Disease Control regarding screening for tuberculosis, applicants between the ages of 2-14 must receive a PPD skin test as part of the medical exam. The panel physicians need 72 hours to read the reaction to the skin test. Therefore, applicants with children must have the medical exam conducted at least four days prior to the scheduled immigrant visa interview. The NVC is not informing applicants of this new requirement, except to refer them to a website for possible supplemental information. This new TB test is currently only required for applicants immigrating through Cd. Juarez, Manila, and Guangzhou. It will be required for all IV applicants in the future.

Being an alcoholic is not per se a health-related ground of inadmissibility; one must also evidence associated harmful behavior. If the applicant drinks and drives, then that is a potentially dangerous activity and the applicant may be found inadmissible. If there was a prior drunken driving conviction, it doesn't matter when the DUI occurred as much as if the behavior continues.

Please refer to the new guidance issued by the State Department earlier this year that requires the consular official to refer the IV applicants to a panel physician if they have a single drunk driving arrest or conviction within the last three calendar years or at least two arrests or convictions in any time period. 9 FAM 40.11 N8.3. There is a waiver for alcohol-related inadmissibility, but not for narcotic drug use. In the latter situation, the applicants must show remission – usually for three years – before they can reapply.

If the derivative child is not named on the appointment letter, go to the consulate's Information Window and request a new appointment letter. The derivative will then be added. Take that letter and the Mexican passport to the panel physician and they will conduct the medical exam.

Affidavit of Support. After the USCIS finalized the affidavit of support rule in July 2006, applicants have been able to file an I- 864W in lieu of an I-864 in cases where the intending immigrant has satisfied the 40 Social Security quarters rule or will be deriving citizenship through the Child Citizenship Act of 2000. The consulate will now accept these "waiver" forms and will not require the submission of tax or employment information. The consulate recognizes that due to staff turn over, some officers have mistakenly rejected the I-864W and requested an affidavit of support. If your client experiences this type of improper rejection, please contact the consulate by fax.

If the applicant must submit an affidavit of support, the sponsor has to establish domicile in the United States. In cases where the U.S. citizen sponsor has been residing in Mexico and is petitioning for a spouse, that sponsor can re-establish U.S. domicile with the intending immigrant. The consulate does not require any specific evidence that the couple plans on settling in the United States upon the granting of the immigrant visa. Rather, the consulate looks to the intent of the parties. That intent to resettle does not have to be immediate; it could be an intent to resettle a year from now. The State Department has recently confirmed that Unemployment Insurance benefits are considered income and can be counted in satisfying the 125 percent of poverty requirement. Social Security retirement or disability benefits can be counted as well, though not Supplemental Security Income (SSI) for the, aged, blind, or disabled. The consulate will also count child support as income.

The consulate will not consider real estate located in Mexico as an asset, though it will consider the intending immigrant's income- generating property that will continue after the applicant immigrates.

Inadmissibility due to unlawful presence. The consulate and the USCIS office in Cd. Juarez define unlawful presence and its exceptions in the same manner for those potentially subject to the three- or ten- year bar under INA §212(a)(9)(B) and the "permanent" bar for illegal reentry after one year of unlawful presence under INA § 212(a)(9)(C) (i)(I). [Note: The wording of the statute is potentially ambiguous. The unlawful presence exceptions for minors, asylum applicants, Family Unity recipients, battered spouses and children, and adjustment/extensio n/change of status applicants appear to apply only to the three- and ten-year bar provision, not the permanent bar provision. The consulate is applying the exceptions to both provisions.] In other words, if a child under the age of 18 has not acquired unlawful presence for purposes of triggering the three- or ten-year bar, he or she will not have triggered the permanent bar for illegal reentry after one year of unlawful presence.

Repayment of IV visa fee after waiver granted. If the applicant is initially found inadmissible and denied an immigrant visa, submits a waiver, and the waiver is granted, the applicant will be rescheduled for an interview with the consulate. At that interview, the applicant must repay the $380 IV visa fee.

The only circumstances where the applicant will not have to re-pay the fee is when the consulate refuses the applicant under INA § 221 (g).

False claims of citizenship. There are no waivers for false claims of citizenship made after September 30, 1996, and there is only one narrow exception.

However, according to the consulate and the local USCIS office, children under the age of 15 are legally incapable of making a false claim of citizenship for purposes of INA § 212(a)(6)(C) (ii). Children aged 15-17 can be found to have made a false claim of citizenship if the facts indicate that they were acting on their own and not under the direction of a parent or guardian. In most cases, however, children under age 18 are determined to be not legally capable of committing this offense and therefore are not being found inadmissible.

Signing the State Department forms. The Form DS-230 Part 1 can be signed by either the IV applicant (I-130 beneficiary) , the I-130 petitioner, or the designated agent. The DS-230 Part 2 can only be signed by the IV applicant in front of the consular official on the date of the interview.

What to bring to the interview. Most of the IV interviews are now being scheduled by the NVC, which forwards the file to the consulate approximately one month before the scheduled date. The consular officials may go through the file prior to the interview date and notice that additional documents are required, or indicate that certain documents have been separated from the file. In that case, please bring the requested documents to the interview.

If the case is being scheduled locally, the consulate will send a notice indicating which documents should be taken to the interview. If original documents have already been submitted, these will be returned to the applicant at the interview upon being granted the immigrant visa. All applicants, including children, must come to the interview with the passport because the consulate is now issuing machine-readable immigrant visas that are stamped into the passport.

Family members attending the immigrant visa. The consulate will not allow family members of the intending immigrant to attend the interview with the exception of minor children. In those cases, the consulate would like the petitioning parent to attend the interview. This is a safety issue, given the rise in human trafficking and other fraudulent activity.

Derivatives. If a derivative child is not included in the visa forms sent from the State Department, either due to agency error, a failure to include the child's name on the I-130, or because the child is after-acquired, contact the NVC and have that office re-send the fee bill and forms. If the derivative and the principal for some reason have separate files, notify the consulate and it will cross-reference and merge the files so the family members can attend the same interview.

If the principal beneficiary has adjusted status in the United States and that person wants to start consular processing for derivative children residing in Mexico, the principal may file a Form I-824 with the USCIS and have that office forward confirmation of adjustment approval to the consulate, which will open a file for the derivatives. Alternatively, the principal may send proof of having adjusted directly to the consulate. Send a cover letter and a copy of the Form I-551, Resident Alien card. The consulate will register that derivative as following-to- join the principal beneficiary. The consulate will verify the "A" number with USCIS. On the day of the interview the consulate will request the principal beneficiary to be present and bring a copy of the original I-551 card.

Update from Warren Janssen. Mr. Janssen's office is located near the consulate, but is under the jurisdiction of the DHS/USCIS. Approximately 15 to 20 percent of the IV applications require a waiver for inadmissibility, and his main responsibility is adjudicating waiver applications.

When he started in this position in July 2005 he faced a backlog of waiver applications and a steady monthly stream of approximately 200- 400 applications.

The approval rate of his predecessor was between 95 to 98 percent. Mr. Janssen took a harder look than his predecessor at the waiver applications and documentation supporting the extreme hardship claim, and the approval rate necessarily went down. At this time, however, the approval rate is still quite high – between 70 to 75 percent of the waiver applications are granted.

The volume of waiver applications has steadily increased commensurate with the increase in IV applications. It soon became obvious that the job required more than two adjudicators. Part of the problem was that a large amount of time was being spent filing documents in the appropriate case file. Since it was taking between 6 to 12 months to adjudicate the waiver applications, and during that time applicants were allowed to supplement their cases with current evidence of extreme hardship to the qualifying relative, a more efficient system was developed that allowed for same-day adjudication of "clearly approveable" waiver applications. Mr. Janssen, working with the U.S. consulate, developed a pilot program in March 2007 that allowed IV applicants to schedule an InfoPass appointment a few days after their IV interview where they could submit their waiver application.

Immigrant visa applicants who were found inadmissible for a waivable ground are now given written notice at the time of the consular interview informing them of the procedure for submitting their waiver packet through an InfoPass appointment. At that time they return to the consulate, pay the waiver fee, and submit the waiver application, together with supporting documentation of extreme hardship. The consulate receives the application and hands the file over to the USCIS adjudicating officer in an adjoining room. If Mr. Janssen's office believes it is a "clean" case (no FBI criminal hits, no separate A file to examine) that is readily approveable, it will grant the waiver and hand the file back to the consulate. The consular official in turn will approve the immigrant visa either that day or the following.

The approval rate for applications processed through the pilot program is about 55 percent. Persons who do not have a clearly approveable case are not denied but are rather referred to the pre- existing adjudication process. In other words, their application is added to the backlog of pending cases and reviewed later. They are encouraged to supplement their file with additional proof of hardship. Although the referral letter indicates that they have 30 days to submit additional supporting documentation, they can actually submit it at any time up to the date of adjudication.

The current backlog of pre-pilot program cases is 4,000, which is down from a high of 8,000 cases. The waiting time for adjudication is 10 to 12 months.

Applicants may ask to expedite the waiver adjudication if they submit evidence of serious health factors or military deployment. The applications are reviewed and adjudicated locally, as well as sent to USCIS offices in Tijuana, Monterrey, and Mexico City for adjudication. If the USCIS receives the anticipated 18,000 waiver applications during this current fiscal year, and 55 percent (approx. 10,000) are approved through the pilot program, the others would be referred to the backlog, which would grow to12,000 unless action were taken to adjudicate them. Mr. Janssen plans to continue sending cases in the backlog to the other USCIS offices in Mexico, as well as adjudicating some in-house, to eliminate the backlog by the end of the fiscal year. His goal is then to adjudicate the cases referred through the pilot program within a three-month period.

That InfoPass pilot program worked well for the first six months until the demand for InfoPass appointments exceeded the number of available slots. This created a "frontlog" of several hundred persons trying to schedule an InfoPass appointment and who were unable to do so. Part of the problem with scheduling through InfoPass is that one can't schedule an appointment beyond a two-week period. The El Paso USCIS district office has recently lent Mr. Janssen's office an agent to assist in adjudicating pilot program applications. As a result, the USCIS has now doubled the number of possible appointment slots from 65 to 130, which should alleviate some of the difficulty in scheduling an appointment. It is their hope that the frontlog can be cleared up within the next several weeks.

Beginning December 17, 2007, persons wanting to schedule an appointment to file their waiver application with the USCIS will no longer be using InfoPass.

Instead they must telephone the Call Center (900-476-1212 from the United States or 01-900-849-49- 49 from Mexico). To use a credit card, call 800-919-1754 from the United States or 01-477-788-70- 70 from Mexico. The call-in appointment service should be able to schedule these appointments much more efficiently than the prior InfoPass system and handle a larger volume of applicants.

Mr. Janssen prefers to receive the application and supporting documentation two-hole punched at the top so it can be easily inserted into the file. Do not include any tabs that would protrude from the file. He likes to see a cover letter that sets forth in bulleted format the supporting documentation that is included. Do not include reports of country conditions or evidence (e.g., birth or marriage certificates) reestablishing the relationship to the qualifying relative. Set forth the facts that support the extreme hardship claim, but do not cloud the application with case citations or legalese.

Applicants who are denied may file an appeal with the Administrative Appeals Office. Those appeals are filed with his office and forwarded to the AAO. It currently takes approximately 12 to 25 months to receive a decision.