Requests for Evidence (RFEs) Commonly Issued by USCIS on Waiver Applications

Requests for Evidence (RFEs) Commonly Issued by USCIS on Waiver Applications

I am often contacted by applicants who have received a Request for Evidence from the USCIS and are understandably concerned and unsure how to respond.

While some Requests for Evidence are procedural and relatively simple to handle (e.g. a request for a copy of a marriage certificate, birth certificate, etc.), others are more serious and accompanied by a Notice of Intent to Deny as well.  This typically occurs because the adjudicating USCIS officer believes that the applicant failed to meet the legal threshold of the waiver being applied for.

Below are Requests for Evidence commonly issued by the USCIS to waiver applicants.  Our office has successfully responded to such requests from the USCIS on behalf of our clients for the past 12+ years.  Should such a request be issued, I recommend contacting an experienced I-601 and I-212 waiver attorney and get guidance on how to proceed.  It is extremely important that such requests be carefully and fully complied with to ensure successful approval of your waiver application.

100 RFE 601- Waiver Requirements for Unlawful Presence – INA 212(a)(9)(B)(v)
You have been found inadmissible to the United States under section 212(a)(9)(B) of the Immigration and Nationality Act (INA) because you had previously been unlawfully present in the United States in excess of either 180 days, or for one year or more.

To be eligible for a waiver under section 212(a)(9)(B)(v) of the INA, you must show that:

• You have a U.S. citizen or lawful permanent resident spouse or parent, or a U.S. citizen fiance( e) who petitioned for your K visa, who would experience extreme hardship if you were denied admission, and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

101 RFE 601- Waiver Requirements for Criminal & Related Grounds – INA 212(h)
You have been found inadmissible to the United States under section 212(a)(2) of the Immigration and Nationality Act (INA) because of your involvement in: [ISO inserts applicable basis for inadmissibility finding]

• A crime involving moral turpitude (other than purely political offense).
• A controlled substance violation according to the laws and regulations of any country related to a single offense of simple possession of 30 grams or less of marijuana.
• Two or more convictions, other than purely political ones, for which you received sentences of confinement amounting to 5 years or more.
• Prostitution, including having procured others for prostitution or having received the proceeds of prostitution.
• Unlawful commercialized vice whether or not related to prostitution.
• Serious criminal activity but you asserted immunity from prosecution.

This office may approve a waiver of the inadmissibility ground(s) under section 212(h) of the INA, if you can show that either:

You are only inadmissible for participation in prostitution; and

• You have been rehabilitated; and
• Your admission to the United States will not be contrary to the national welfare, safety, or security of the United States; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

The criminal activities for which you are inadmissible occurred more than 15 years ago; and

• You have been rehabilitated; and
• Your admission to the United States will not be contrary to the national welfare, safety, or security of the United States;
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

You have a qualifying relative who is a U.S. citizen or lawful permanent resident of the United States; and

• Your qualifying relative would suffer extreme hardship on account of your ineligibility to immigrate; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

You are the fiance( e) of a K visa petitioner; and

• The K visa petitioner would suffer extreme hardship on account of your ineligibility to immigrate; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

You are a VA WA self-petitioner

In addition to the above requirements, if an applicant has been convicted of a violent or dangerous crime, USCIS will not waive the inadmissibility as a matter of discretion unless the individual can show an extraordinary circumstance, such as:

  • One involving national security or policy considerations; or
  • If the denial of your admission would result in exceptional and extremely unusual hardship.

102 RFE 601 – Waiver Requirements for Fraud/Misrepresentation – INA 212(i)
You have been found inadmissible to the United States under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA) because you sought to procure an immigration benefit by fraud or willfully misrepresenting a material fact.

To be eligible for a waiver under section 212(i) of the INA, you must show that:

• You have a U.S. citizen or lawful permanent resident spouse or parent, or a U.S. citizen fiance( e) who petitioned for your K visa, who would experience extreme hardship if you were denied admission, or
• You are a VA WA self-petitioner, and that you or your U.S. citizen, lawful permanent resident, or qualified parent or child would experience extreme hardship if you were denied admission; and ‘
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

103 RFE 601 – Waiver Requirements for Communicable Disease – INA 212(g)(1)
You have been found inadmissible to the United States under section 212( a)(1)(A)(i) of the Immigration and Nationality Act (INA) because you have a medical condition that will not allow you to enter or remain in the United States. USCIS may waive this inadmissibility ground under section 212(g)(1) of the INA as a matter of discretion after consulting with the Centers for Disease Control and Prevention (CDC).

To be eligible for this waiver, you must show that you are one of the following:

  • The spouse, parent, unmarried son or daughter, or minor unmarried lawfully adopted child of
    • A U.S. citizen; or
    • An alien lawfully admitted for permanent residence; or
    • An alien who has been issued an immigrant visa
  • A self petitioner under the Violence Against Women Act (VA WA)
  • The fiance( e) of a U.S. citizen or the fiance(e)’s child.

104 RFE 601 – Waiver Requirements for Missing Vaccinations – INA 212(g)(2)(C)
You have been found inadmissible to the United States under section 212(a)(1)(A)(2) of the Immigration and Nationality Act (INA) because you have not received the vaccines required for entry into the United States. USCIS may waive this inadmissibility ground under section 212(g)(2)(C) of the INA as a matter of discretion if you can establish that:

  • You are opposing vaccinations in any form (that is, you are not just opposed to one vaccine but that you oppose the practice of vaccination in general); and
  • Your objection is based on religious beliefs or your moral convictions; and
  • Your belief or conviction is sincere (that you actually live according to your belief and conviction, and that you do not just have the belief or conviction because you do not want to be vaccinated).

105VWR – Waiver Requirements for Physical or Mental Disorder- INA 212(g)(3) 

You have been found inadmissible to the United States under section 212(a)(1)(A)(iii) of the Immigration and Nationality Act (INA) because you were determined to have a mental or physical disorder that poses or may pose a threat to the property, safety, or welfare of you or others; or because you have a history of a physical or mental disorder and a history of behavior that poses or may pose a threat to the property, safety, or welfare of you or others because the disorder is likely to reoccur.

After consultation with the Centers for Disease Control and Prevention (CDC), USCIS may waive this inadmissibility ground under section 212(g)(3) of the INA as a matter of discretion to ensure that you have arranged for suitable health care in the United States so that your condition will no longer pose a threat to you or others.

106 RFE 601- Waiver Requirements for Membership in a Totalitarian Party – INA 212(a)(3)(D)(iv)
You have been found inadmissible to the United States under section 212(a)(3)(D) of the Immigration and Nationality Act (INA) because you had been a member of the Communist Party or another totalitarian party (or subdivision or affiliate thereof).

To be eligible for a waiver under section 212(a)(3)(D)(iv) of the INA, you must show that:

  • You are:
    • A parent, spouse, son, daughter, brother, or sister of a citizen of the United States, or
    • A spouse, son, or daughter of a lawful permanent resident of the United States; and
  • Your application should be granted to serve humanitarian purposes, to assure family unity, or because it is otherwise in the public interest; and
  • You are not a threat to the security of the United States; and
  • Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

107 RFE 601 – Waiver Requirements for Smuggling-INA 212(d)(11)
You have been found inadmissible to the United States under section 212(a)(6)(E) of the Immigration and Nationality Act (INA) because you had engaged in alien smuggling.

To be eligible for a waiver under section 212(d)(11) of the INA, you must show that:

  • You are:
    • An alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of removal, and are otherwise admissible to the United States as a returning resident under section 211(b) of the INA, or
    • Seeking admission or adjustment of status as an immediate relative under section INA 201(b)(2)(A) or as an immigrant under section 203(a) of the INA (first, second, and third family-based preference, but not fourth preference) or as the fiance(e) (or child of the fiance(e))’of a U.S citizen; and
    • You have encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was your spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of the law; and
    • Your application should be granted to serve humanitarian purposes, to assure family unity, or because it is otherwise in the public interest; and

Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

108 RFE 601- Waiver Requirements for Subject of Civil Penalty- INA 212(d)(12)
You have been found inadmissible to the United States under section 212(a)(6)(F) of the Immigration and Nationality Act (INA) because you have been the subject of a final order for violation of section 274C of the INA (Document Fraud).

To be eligible for a waiver under section 212(d)(12) of the INA, you must show that:

  • You are
    • An alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation or removal and who is otherwise admissible to the United States as a returning resident under section 211(b) of the INA, or
    • Seeking admission or adjustment of status as an immediate relative under section 201(b)(2)(A) of the INA or as an immigrant under section 203(a) of the INA (first, second, and third family-based preference, but not fourth preference) or as the fiance(e) (or child of the fiance(e)) of a U.S. citizen; and
    • This is the only civil money penalty order against you under INA 274C; and
    • You committed the offense only to assist, aid, or support your spouse or child (and not another individual); and
    • Your application should be granted to serve humanitarian purposes, to assure family unity, or because it is otherwise in the public interest; and

Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

109 RFE 601 – Applicant Previously Removed – INA 212(a)(9)(A)(iii)
The record indicates that in addition to the inadmissibility ground for which you have filed Form I-601, you are also inadmissible under section 212(a)(9)(A) of the Immigration and Nationality Act (INA) due to a previous removal or deportation.

An individual who is inadmissible under section 212(a)(9)(A) of the INA may file an Application for Permission to Reapply for Admission to the United States After Deportation or Removal (Form I-212).

Your application is missing evidence that you have filed Form I-212 with USCIS. Please submit a USCIS receipt notice for Form I-212 as evidence that you have filed the required application.

110 RFE 601-No Evidence of Visa Refusal or Pending I-485/I-821
An individual who is outside the United States may file Form I-601 if he or she has been found inadmissible by a U.S. Consular Officer after having applied for an immigrant visa or a nonimmigrant K or V visa.

An individual who is inside the United States may file Form I-601 along with an Application to Register Permanent Residence or Adjust Status (Form I-485) or an Application for Temporary Protected Status (Form I-821 ), or while the Form I-485 or Form I-821 is pending.

Your application is missing evidence that your waiver application is based on either:

  • An immigrant visa application (or nonimmigrant K or V visa application) filed with the Department of State (DOS), for which you were found ineligible due to an inadmissibility ground; or
  • A pending Form I-485 or Form I-821.

Please provide the following evidence to support your application:

  • If you are outside the United States, submit evidence that you have a pending immigrant visa application (or nonimmigrant K or V visa application), such as a copy of a DOS notice identifying your Consular Case Number.
  • If you are inside the United States and have a pending Form I-485 or Form I-821, submit evidence that you have a pending application, such as a copy of your USCIS receipt notice (Form I-797).

[Read more…]

Client Approval: I-601 Waiver under 212(h) Approved for Client With Multiple CIMT and Controlled Substance Conviction

Client Approval: I-601 Waiver under 212(h) Approved for Client With Multiple CIMT and Controlled Substance Conviction

Our office recently received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a client who was subject to a lifetime ban from being admitted to the United States pursuant to  INA 212(a)(2)(A)(i)(I) and  INA 212(a)(2)(A)(i)(II).  Our client has multiple criminal convictions in her background including a conviction for a crime involving moral turpitude which occurred in 1998 and a controlled substance conviction (possession of a cannabis bong) which occurred in 1997.  Our client is married to a U.S. lawful permanent resident husband with an approved I-130 immediate relative petition filed on her behalf.

She contacted me after filing the I-601 waiver on her own and receiving a notice from the USCIS stating that the waiver package she filed did not contain sufficient evidence that a favorable exercise of discretion was warranted in her case.

Legal Requirements of the § 212(h) Waiver

Section 212(h) of the Immigration and Nationality Act provides a discretionary waiver for the following criminal grounds of inadmissibility:

  • Crimes involving moral turpitude (subparagraph 212(a)(2)(A)(I))
  • Multiple criminal convictions (212(a)(2)(B))
  • Prostitution and commercial vice (212(a)(2)(D))
  • Certain aliens who have asserted immunity from prosecution (212(a)(2)(E))
  • An offense of simple possession of 30 grams or less of marijuana (212(a)(2)(A)(i)(II))

INA 212(h)(1)(A) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), and (E) of the Act may be waived in the case of an alien who demonstrates to the satisfaction of the Attorney General that:

  • the activities for which she is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of status;
  • the admission would not be contrary to the national welfare, safety, or security of the U.S.; and
  • the alien has been rehabilitated;

INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who:

  • has a parent, spouse, son, or daughter who is a U.S. citizen or lawful permanent resident of the United States; and
  • the parent, spouse, son, or daughter would suffer “extreme hardship” on account of the alien’s ineligibility to immigrate

Waiver applicants must also show that their application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in his or her case.

”Extreme hardship” has a special meaning under U.S. immigration law.  The factors considered relevant in determining extreme hardship include:

  • Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.
  • Financial considerations: future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children; cost of caring for family members (i.e., elderly and infirm parents).
  • Education: loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time in grade; availability of special requirements, such as training programs or internships in specific fields.
  • Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
  • Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
  • Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

Spouses must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.

How I Obtained Approval of the I-601 Waiver for My Client Who Had Multiple Convictions for Crimes Involving Moral Turpitude and a Controlled Substance Conviction

In support of my client’s I-601 waiver application, I prepared a comprehensive 21-page legal brief going over how the facts and circumstances of her situation met the legal standards for both INA 212(h)(1)(A) and INA 212(h)(1)(B) including citations of existing case law favorable to my client’s case.

I thoroughly outlined the the medical, financial, and psychological hardships of the case and presented persuasive evidence of my client’s rehabilitation and good moral character.  Not only did I show that my client was rehabilitated and her admission not contrary to the national welfare, safety, or security of the U.S., I also demonstrated that her overall dedication as a wife and mother was integral to the daily care of her ill U.S. citizen husband (who suffers from coronary heart disease and psychological disorders) and their three children (one of whom suffers from Attention Deficit Hyperactivity Disorder).  I also showed that the welfare of her husband and children depends on them remaining inside the United States together with their wife and mother.

An extensive table of exhibits also listed a variety of evidence in support of a showing of “extreme hardship” and rehabilitation.

As a result of our efforts, our client was approved for the 601 waiver within 4 weeks of submission and subsequently, received her lawful permanent residence to join her family in the United States.

Admitting Drug Use and Inadmissibility for Permanent Residence

Drug Use and Inadmissibility

All applicants applying for permanent residence to the U.S. must complete a medical examination.  The civil surgeon or panel physician requests a medical history of the applicant, conducts a physical examination, and inquires about physical health and medications the applicant may be taking to ensure any vaccinations required are not contraindicated.

During the course of the medical examination, the civil surgeon or panel physician is instructed to “evaluate the applicant’s history, behavior and physical appearance when determining if drug screening should be performed.”  If the civil surgeon or panel physician reviews the applicant’s medical history with the applicant and finds no signs of drug use or abuse, the civil surgeon or panel physician is instructed to not inquire about recreational drug use.

However, what happens if the applicant admits to drug use, such as recreational use of marijuana, during the medical examination?

In this situation, the civil surgeon or panel physician determines whether the applicant’s drug use should be classified as “drug abuse” or “drug addiction” as defined by the Department of Health and Human Services (HHS):

Drug abuseThe non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 U.S.C. 802) which has not necessarily resulted in physical or psychological dependence.

Drug addiction: The non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 U.S.C. 802) which has resulted in physical or psychological dependence.

If the civil surgeon or panel physician determines that the applicant’s drug use is neither drug abuse or drug addiction, then “No Class A or B Substance (Drug) Abuse/Addiction” would be noted in the applicant’s I-693 Report of Medical Examination and Vaccination Record.

However, should the civil surgeon or panel physician determines that the applicant’s drug use is either drug abuse or drug addiction, then a secondary determination is made as to whether the applicant has a “Class A” or “Class B” condition.

Being deemed to have a “Class A” condition would make the intending immigrant inadmissible due to being a “drug abuser or addict” or by having a “physical or mental disorder” associated with harmful behavior.  INA § 212(a)(1)(A)(iv)  or  INA § 212(a)(1)(A)(iii) would subsequently bar the applicant from obtaining permanent residence in the U.S until full sustained remission can be shown.

INA § 212(a)(1)(A)(iv) declares inadmissible any alien “who is determined…to be a drug abuser or addict.”

INA § 212(a)(1)(A)(iii) declares inadmissible any alien: “who is determined… (I) to have a physical or mental disorder andbehavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or (II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior…”

Being deemed to have a “Class B” medical condition is considered to be in full, sustained remission of substance abuse or dependence and is not considered an inadmissible medical condition.

The CDC currently defines sustained, full remission as a period of at least 12 months during which no substance use or mental disorder-associated behaviors have occurred.  The practical significance for diagnosis of remission is that applicants who are determined to be Class A for abuse or addiction for those substances listed in Schedule I through V of Section 202 of the Controlled Substance Act are not eligible for a waiver and must complete the time period for sustained, full remission before reapplying for admission (i.e. at least 12 months).

However, continuing with the example of an applicant who admits to past recreational drug use such as marijuana, a more serious consequence of the admission exists.

Depending on exactly what the applicant admits to during the medical examination, and what the civil surgeon or panel physician explains to the applicant about the illegality of  drug use, the applicant may be inadmissible under INA 212(a)(2)(A)(i)(II).  This section of the INA states that an applicant is inadmissible if he is found to have admitted “committing acts which constitute the essential elements of . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).”

Notice here that mere admission of drug use that would constitute a controlled substance violation is enough to make a person inadmissible.   A conviction is not required.  There is no waiver available.

So what constitutes an admission that could lead to such harsh immigration consequences?

The Board of Immigration Appeals uses the standards set forth in Matter of K, 7 I&N Dec. 594 (BIA 1957)  in determining the requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily.

Keep in mind however that the Ninth Circuit Court of Appeals has ignored some of the factors in Matter of K.  See Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002).   Consular officers have in the past been extremely strict in effectively banning applicants for life pursuant to INA 212(a)(2)(A)(i)(II).  The trend appears to be for greater leniency in recent years.

The important take away here is that the medical examination can be a perilous process in and of itself for the immigration consequences that can result.  It is extremely important you be honest yet informed about the ramifications of statements made during the immigration medical examination process.