U.S. CITIZENSHIP AND IMMIGRATION SERVICES National Benefit Center

Transcription

1 1234 U.S. CITIZENSHIP AND IMMIGRATION SERVICES National Benefit Center Standard Operating Procedure for Form I-601A Application for Provisional Unlawful Presence Waiver Version 1.1 March 14, 2013

2 Standard Operating Procedure for Fonn I-601A CONTENT Section 1: Introduction 1.1 Purpose and Scope of ' the SOP 1.2 Versions 1.3 Background to Provisional Unlawful Presence Waivers Section 2: Authority and Resources 2.1 Applicable Statutory and Regulatory Provisions 2.l. 1 Unlawful Presence Inadmissibility Grounds Unlawful Presence Waiver Authority Provisional Waiver Regulation 2.2 Resources USCIS Policy Precedent Decisions RFE and Denial Standards Page Number Section 3: Procedural Guidance 3.1 Pre-Adjudication Overview of Lockbox Intake Related Immigration Records FBI Fingerprint and Name Check TECS Check Route to ISO 3.2 Adjudication - ISO Review Reviewing the Record Verify Basic Eligibility Reason to Believe Additional212(a) Ground Applies Weigh Extreme Hardship and Discretionary Factors 3.3 Adjudication - Dedision Request for Evidence Approval Denial 3.3_4. Withdrawal Service Motion Updating CLAIMS 3.4 Post-Adjudication Approved Cases Denied and Withdrawn Cases 3.4.3\Notifying the NVC ' Section 4: Overview of Provisional Unlawful Presence Waiver Requirements Filing Requirements 39 FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE 2 This document is FOR OFFICIAL l}se ONLY. It contains infonnation that may be exempt from public release under the Freedom of lnfonnation Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) infonnation, and is not to be released to the public or other personnel who do not have a alid "need, to-know" basis without prior approval from the originator

3 1236 Standard Operating Procedure for F onn I -60 l A Presence in the United States At Least 17 Years of Age Approved Immediate Relative Petition Consular Processing the Immediate Relative Petition Other Rejection Criteria Ineligibility Factors Failure to Pay the Biometrics Fee Failure to Appear at an ASC for Biometrics Capture NVC Acted Prior to January 3, 2013, to Schedule.IV Interview Pending Adjustment of Status Application Removal Proceedings Reason to Believe Other INA 212(a) Grounds May Apply Extreme Hardship Qualifying Relative Severity of Claimed Hardship St;tndard ofproof Burden of Proof Discretion Weighing Favorable and Unfavorable Factors Consistency in Discretionary Decisions Limitations, Conditions and Validity of Approval Lim itations of a Provisional Unlawful Presence Waiver Conditions of a Provisional Unlawful Presence ' Waiver Approval Validity of a Provisional Unlawful Presence Waiver Approval Automatic Revocation Service Motion to Reopen/Reconsider Results of Provisional Unlawful Presence Waiver Denial or Withdrawal May Not.File Motion/ Appeal May File New I-601A May Seek Waive r after the Consular Interview Notice to Appear Appendices A. Helpful Links B. I-601A Adjudication Worksheet C. Background Information for Form I-601A FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE 3 This document is FOR OFFICIAL USE ONLY. It contains infonnation that may be exempt from public release under the Freedom of Infonnation Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with. DHS policy relating to Sensitive But Unclassified (SBU) infonnation, and is not to be released to the public or other personnel who do not have a valid "need to-know" basis without prior approval from the origin\llor.

4 1237 Standard, Operating Procedure for Form I-60IA Section 1: Introduction 1.1 Purpose and Scope of the SOP <Return to Table of Contents) This Standard Operating Procedure (SOP) pertain!;; to the processing and adjudication of Form 1-601A, Application for Provisional Unlawful Presence Waiver, at the National Benefit Center (NBC). Questions or comments related to this SOP should be directed to the Field Operations Directorate (FOD) Program Manager fo r waivers, through a supervisor or training officer. 1.2 versions Numbered versions to this SOP will be issued as required. Electronic copies of the SOP will be modified to reflect changes; the following table lists the version and the associated changed. Version Date Subject Page 1.0 3/4/13 Initial release 1.1 3/14/13 Added version history; added TECS cover sheet 4, 12 to ROP order 1.3 Background to Provisional Unlawfui. Presence Waivers The Department of Homeland Security (DHS) developed the provisional unlawful presence w.aiver process to address the dilemma ce ain immediate relatives face when they have accrued unlawful.presence in the United States and must proceed abroad to obtain an immigrant visa: They must depart the United States to consular process the immigrant visa petition, but the very act of departing the United States often triggers a.3- or 10-year bar to receiving the immigrant visa due to prior unlawful presence. 1 DHS developed Form I-601A to allow immediate relatives of U.S. citizens to request a provisional waiver of the unlawful presence grounds of inadmissibility before they depart the United States to attend their immigrant visa interviews with a Department of State (DOS) consular officer. Appendix C contains more detailed information on the background of the provisional unlawful presence waiver program. 1 INA 212(a)(9)(B)(i). FOR OFFICIAL USE ONLY- LAW ENFORCEMENT SENSITIVE 4 This document is FOR OFFI C IAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with. DHS policy relating to Sensitive But "!Jnclassified (SBU) information, and is not to be releas d to the public or other personnel who do

5 1238 Standard Operating Procedure for Fonn I-601A FOR OFFICIAL USE ONLY- LAW ENFORCEMENT SENSITNE 5 This document is FOR OFFICIAL USE ONLY. It contaihs info.nnation that may be exempt from public release under the Freedom of Infonnation Act (5 U.S. C. 552). This document is to be controlled, handled, transmitted, distributed, ahd disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) inf nnation, and is not to be released to the public or other personnel who do

6 1239 Standard Operating Procedure for Form I-601A Section 2: Authority and Resources 2.1 Applicable Statutory and Regulatory Provisions (Return to Table of Contents) Unlawful Presence Inadmissibility Grounds The grounds of inadmissibility related to the 3- and 1 0-year unlawful presence bars are found in section 212(a)(9)(B)(i) of the Immigration and Nationality Act (INA). Under INA section 212(a)(9)(B)(i)(l),-an alien who was unlawfully present in the United States for more than 180 days but less than 1 year during a single stay, and who then. departs voluntarily from the United States before the commencement of removal proceedings, will be inadmissible for 3 years from the date of departure. Under INA section 212(a)(9)(B)(i)(II), an alien who was unlaẉfully present for 1 year or more during a single stay and then departs before, during, or after removal proceedings, will be inadmissible for 10 years from the date of departure. For detailed information on unlawful presence, including the statutory and policy. exceptions to the accrual of unlawful presence, see Chapter 40.9 of the Adjudicator's Field Manual. Links to the Adjudicator's Field Manual and other useful resources are.. located in Appendix A of this SOP Unlawful Presence Waiver Authority INA section 212(a)(9)(B)(v) gives the Secretary of Homeland Security (Secretary) the authority to waive the 3- and 10-year unlawful presence bars if the alien is seeking admission as an immigrant and if the alien demonstrates that the denial of his or her admission to the United States would cause "extreme hardship" to the alien's U.S. citizen spouse or parent. Because the granting of a waiver is discretionary, the alien must also establish that he or she merits a favorable exercise of the Secretary's discretion Provisional Unlawful Presence Waiver Regulation The DHS regulation at 8 CFR 212.7(e) outlines specific eligibility requirements for certain immediate relatives of U.S. citizens to receive a provisional unlawful presence waiver prior to departing the United States to complete consular processing oftheir immigrant visas that are based on an approved immediate relative petition. The eligibility requirements are discussed in detail in section 4 of this SOP. FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITNE 6 This document is FOR OFFICIAL USE ONLY. It contains infonnation that may be exempt from public release under the Freedom of lnfonnation Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) infonnation, and is not to be released to the public or other personnel who do not have a valid "need-to-know" basis without prior approval from th'e originator..

7 1240. Standard Operating Procedure for Form I-601A 2.2 Resources (Return to Table of Contents) v Immigration Services Officers (ISOs) should refer to INA section 212(a)(9)(B)(v), 8 CFR 212.7(e), and relevant precedent decisions for guidance while adjudicating Fonn I-601A. Additionally, when issuing a Request for Evidence (RFE) or denial notice related to any I- 601A, ISOs ust use RFE and denial standards that have been cleared for use by FOD USCIS Policy Chapter'40.9 of the Adjudicator's Field Manual (AFM) provides detailed guidance related to the unlawful presence grounds. of inadmissibility. A link to the AFM is located in Appendix A of this SOP. In addition, USCIS is currently developing a USCIS Policy Manual, which will include chapte. rs on inadmissibility grounds and waivers Precedent Decisions Precedent decisions provide binding rules of decision for later cases involving the same issue(s). Decisions ofthe Supreme Court of the United States are always precedent decisions. Published decisions of the U.S. Courts of Appeals are binding for ca es arising in th same circuit. The Attorney General, the Board of Immigration Appeals, and the USC IS Administrative Appeals Office may also designate one of their decisions as a precedent decision. The Executive Office for Iinmigration Review (EOIR) maintains copies of most Attorney General and Board of Immigration Appeals (BIA) precedent decisions in their Virtual Law Library. EOIR and AAO precedents are also published in the multi-volume series Administrative Decisions Under Immigration and Nationality Law of the United States. In addition, the NBC maintains a summary of relevant precedent decisions related to inadmissibility grounds and waivers on the Enterprise Collaboration Network (ECN) page. Links to the EOIR Virtual Law Library and the NBC ECN page are located in Appendix A of this SOP. USCIS counsel may assist ISOs in identifying and applying precedent decisions RFE and Denial Standards Any RFE or denial notice issued in connection with an 1-0IA must be based on standards cleared by FOD. Notices based on the approved standards are avallable on the NBC Letter Generator. In addition, cleared RFE and denial standards are posted on the NBC ECN. Links to the appropriate ECN pages are located in Appendix A of this SOP. FOR OFFICIAL USE O:tiL Y -LAW ENFORCEMENT SENSITNE, 7 This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other persoruiel who do

8 1241 Standard Operating Probedure for Form I-601A Section 3: Procedural Guidance This section provides step-by-step instructions for processing and adjudicating a Form I-60 1A. The column entitled "SOP" provides links to related sections of this SOP where more detailed information about the provisional unlawful presence waiver requirements is located. 3.1 Pre-Adjudication (Return to Table of Contents) Overview of Lockbox Intake ) Individuals seeking a provisional unlawful presence waiver must file their Form I-601A at a designated lockbox (LB) facility at the address listed on the USCIS website. Upon receipt, the LB will perform the following actions: Overview of Lockbox Intake SOP I I 1. The LB will reject any I-601A filed by an applicant under 17 years of age; The LB will reject any I-601A if the applicant fails to pay the required filing fee for the provisional unlawful presence waiver; The LB will reject any I-60 1A package that does not include: 0 Correct filing fee payment ($585) for the form; 0 Completed fields on the form for the applicant's family name and date of birth; 0 Signature of the applicant; 0 Domestic home address on the form; 0 Evidence of an approved or (may be Form I- 797, but may also be other evidence that will penn it USCIS to locate and confinn the approval); 0 Copy of the DOS fee receipt for the immigrant visa processing fee; and 0 A response to the question regarding whether the applicant has been scheduled for a visa.interview. The LB will r ject an I-601A if the applicant indicates that DOS initially acted before January 3, 2013, to schedule the applicant for a visa interview FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE 8 This document is FOR OFFICIAL USE ONLY. It contains infonnation that may be exempt from public release under the Freedom of lnfonnation Act (5 U.S. C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordapce with DHS policy relating to Sensitive But Unclassified (SBU) infonnation, and is not to be released to the public or other personnel who do not have a valid "need-to-know" basis wi!ljout prior approval from the originator.

9 1242 Standard Operating Procedure for Form I-601A 2. The LB will validate any A-number provided on the I-601A 1 (Part 1, Item Number 1). If no A-number is provided on the form, the LB will assign an A-number for the applicant. 3. The LB will enter the case data into Computer Linked Application Information Management System (CLAIMS) via the Enterprise Service Bus (ESB). 4. The LB will place the I-601A and supporting documents on the left-hand side of an A-file in the fo llowing order (top to bottom): 0 G-28, if applicable; 0 I-601A; approval notice for immediate relative petition (or other evidence of approval); 0 DOS fee receipt for immigrant visa processing fee; 0 Supporting documents in the order received. 5. The LB will send the A-file to the NBC for adjudication in accordance with the LB Business Requirements... FOR OFFICIAL USE ONLY- LAW ENFORCEMENT SENSITIVE 9 This document is FOR OFFICIAL USE ONLY. It contains info ation that may be exempt from public release under the Freedom of Information Act (5.U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance. with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do pot have a valid "need-to-know" basis without prior approval from the originator.

10 1243 Standard Operating Procedure for Fonn I-601A Related Immigration Records (Return to Table of Contents) After receiving an A from the LB, NBC contract personnel will perform the following actions to search for related immigration records: Related Immigration Records SOP 1. Query the Central Index System (CIS) (9103, 9104 and ) for related A-files by querying the applicant's first and last name (and any aliases) and date of birth (+/- 1-year range) provided on the I-601A (Part 1, Item Numbers 3-5). Query the National File Transfer System (NFTS) for related T-files. Print out the CIS/NFTS screens showing related files (or lack thereof) and place the printouts in the file. Ifthere ate any related A- or T-files, request the related files and place the case on hold for thirty days or until the files are received, whichever is sooner. Contract personnel will not place cases on hold and will remove cases from hold if it is determined that the related files are lost ("Not Found" iri CIS and "Lost ile" in NFTS). Consolidate any related A- or T-files received. I FBI Fingerprint and Name Check (Return to Table of Contents) NBC contract personnel will perform the following actions related to FBI fingerprint and name checks: FBI Fingerprint and Name Check SOP 1. If the NBC receives an I-601A from the LB in a yellow folder, this is an indication that the applic t has not yet paid the biometrics fee. If an applicant did not pay the biometrics fee, place the c e on a "bio-fee hold" until the LB notifies the NBC that the fee has been paid. FOR OFFICIAL USE ONLY - LAW ENFORCEMENT SENSITIVE 10 This document is FOR OFFICIAL USE ONLY. It contains infonnation that may be exempt from public release under the Freedom of Information Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) infonnation, and is not to be released to the public or other personnel who do not have a valid "need-to-know" basis without prior approval fron:t the originator.

11 1244 Standard Operating Procedure for F onn I A FBI Fingerprint and Name Check SOP 2. After receiving an I-601A from the LB or notification of biometrics fee payment (if previously placed on ''bio-fee hold"), schedule the applicant to appear at an Application Support Center (ASC) for biometrics capture. 3. If an applicant fails to attend the biometrics appointment and has not requested rescheduling of the appointment within 30 days of the missed appointment, OR if the applicant does not,. pay the biometrics fee within 87 days of notice (if previously I placed on "bio-fee hold"), route the case to an ISO to deny the I-601A for abandonment (b )(7)( e) TECS CheckJReturn to Table of Contents) NBC contract personnel will perform the following actions related to Treasury Enforcement Communications System (TECS) queries: TECS Query SOP FOR OFFICIAL USE ONLY - LAW ENFORCEMENT SENSITIVE 11 This document is FOR OFFICIAL USE ONLY. It contains infonnation that may be exempt from public release under the Freedom of Jnfonnatioit Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) infonnation, and is not to be released to the public or other persomel who do not have a valid "need-to-know" basis without prior approval from the origin or.

12 1245. Standard Operating Procedure for Form I-601A (b )(7)( e) TECS Query SOP Route to ISO <Return to Table of Contents) After completing all pre-adjudication steps listed above, the NBC contractor will perfonn the following actions before routing the file to an ISO for review: Route to ISO SOP 1. Verify that the required system checks and security checks were perfonned and that BCU and FDNS have completed additional vetting and hit resolution, when required. FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITNE 12 This document is FOR OFFICIAL USE ONLY. It contains infonnation that may be exempt from public release under the Freedom of lnfonnation Act (5 U.S. C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to S nsitive But Unclassified (SBU) infonnation, and is not to be released to the public or other personnel who do

13 1246 Standard Operating Procedure for Form I-601A Route to ISO SOP 2. Verify that all screen printouts are in the file in the following order (top to bottom): 0 FDNSIBCU memo, if applicable; 0 ROIQ, if applicable; 0 Cover Sheet 0 TECS/NCIC records, if applicable (TECS); 0 FBI fingerprint results (FBIQUERY); 0 FBI name check results (FBIQUERY); o Related A- or T -files (CISINFTS). 3. Route the file to an ISO for review. 3.2 Adjudication - ISO Review J{eviewing the Record <Return to Table of Contents) ISOs will perform the following actions while reviewing the record: Reviewing the Record SOP 1. Review the system printouts in the file. If a printout is missing, heck the appropriate system and print the I I results for the file. 2. If the CIS/NFTS printouts show related files, verify that ' all related files are present or can be viewed electronically. l. If a related file is determined to be lost, follow current USCIS policy regarding the adjudication of an application on a T -file. FOR OFFICIAL USE ONLY - LAW ENFORCEMENT SENSITIVE 13 This document is FOR OFFICIAL USE ONLY. h contains infonnation that may be exempt from public release under the Freedom of lnfonnation Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) irifonnation, and is not to be released to the public or other personnel who do not have a vaiid "need-to-know" basis without prior approval from the originator.

14 1247 Standard Operating Procedure for Fonn I-601A Reviewing tile R cord SOP 4. Review the I-601A, supporting evidence and any related files. The I-601A should list the USCIS receipt number (Part 2,Item Number 1) for an approved I or filed on behalfofthe applicant, and the file should contain a copy of the petition approval notice (Form 1-797) and the immigrant visa fee payment receipt Verify Basic Eligibility <Return to Table of Contents) ISOs will perform the following actions to verify that the applicant meets the basic eligibility requirements for a provisional unlawful presence waiver: Verify Basic Eligibility SOP If the applicant failed to pay the biometrics fee within days of notice and the applicant did not notify USCIS of a change of address, deny the I-601A for abandonment. If the applicant failed to: (1) appear at an ASC for the biometrics capture, (2) notify USCIS of a change of address, or (3) ask USCIS to reschedule the ASC appointment, then deny the I-601A for _ abandonment. If an applicant's fmgerprints were rejected twice as unclassifiable, issue an RFE for police clearance letters and any other.missing evidence. 4. Query the Person Centric Query Service (PCQS) or CLAIMS for other immigration benefit requests filed by (or on behalf of) the applicant by searching the applicant's name (including any aliases) and DOB provided on the I-601A (Part 1, Item Numbers 3-5). Print the PCQS results or CLAIMS history page for ariy immigration benefit requests filed by (or on behalf of) the applicant and place the printouts in the file. FOR OFFICIAL USE ONLY-LAW ENFORCEMENT SENSITIVE 14 This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do

15 1248 Standard Operating Procedure for Form I-601A Verify Basic Eligibility SOP 5. Compare the results of the PCQS or CLAIMS and queries with Part 2 of the I-601A, and the approval notice for the immigrant visa petition (1-130 or 1-360). Verify that the applicant is the beneficiary of an approved or (classifying the applicant as the immediate relatiye of a U.S. citizen), and that the petition has not been revoked. o. lfthe petition was filed by a U.S: citizen parent and the applicant is 21 years of age or older, - determine whethe the Child Status Protection Act (CSPA) applies. (The notes in Consolidated' Consular Database (CCD) should indicate whether. the CSPA applies.) 0 If the petition was filed by a lawful permanent resident (LPR) and the shows a family preference (F2) visa symbol, check CIS to determine whether the petitioner naturalized (and,., as a result, the applicant is now an immediate relative).. If the applicant is not the beneficiary of an approved ' immediate relative petition OR if the immigrant visa petition was subsequently revoked by USCIS or terminated by DOS, deny the I-601A. Do not re-adjudicate the underlying or However, if during your review you find that the record contains strong evidence of relationship fraud or other derogatory information that may not have been available at the time of the or adjudication, route the case to FDNS for review. FDNS will determine whether the applicant and petitioner should be interviewed at a local USCIS field office. FOR OFFICIAL USE ONLY - LAW ENFORCEMENT SENSITIVE 15 This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (S U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other pe nnel who do

16 1249 Standard Operating Procedtire for Fonn I-601A (cont.) Verify Basic Eligibility Before sending an I-601A to a field office for interview, prepare a memo to file requesting that the field office conduct an interview. The memo should provide specific details explaining why the ISO is requesting the interview. The memo should also include a request that the field office return the unadjudicated I-601A back to the NBC along with the results from the interview. Fully articulated and verified fraud may be considered a negative factor for purposes ofthe discretionary analysis. ISOs should NOT request that the NVC return the petition to USCIS for revocation; however, the ISO will share the fraud findings via secure with the NVC Fraud Prevention Unit (FPU) in ' accordance with local policies. SOP FOR OFFICIAL USE ONLY - LAW ENFORCEMENT SENSITIVE 16 This document is FOR OFFICIAL USE ONLY. It contains infonnation that may be exempt from public release under the Freedom of Infonnation Act (5 U.S. C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do

17 1250 Standard Operating Procedure for Form l-601a Verify Basic Eligibility SOP 6. Query the CCD for the immigrant visa beneficiary (IVIS Beneficiary) using the consular case number (NVC Case Number) listed on.the I-601A (Part 2; Item Number 4). The NVC Case Number is also located on the DOS immigrant visa fee receipt. Also query CCD for the case number listed on the DOS immigrant visa fee receipt if the NVCCase Number listed on the I-601A (Part 2) does not match the NVC Case Number located on the DOS fee receipt. Select the link with the correct NVC Case Number to view the IV Case Detail report. Compare the information on the CCD!VIS Ca e _Detail report with information on the I-601A (Part 2), the approval notice for the immigrant visa petition (1-130 or 1-360)," and the DOS fee receipt.. The Receipt Number (1-130/1-360) and Case Number I (DOS case) listed on the CCD report should match the information provided by the applicant in Part 2 of the I-601A and/or on the approval notice and th? DOS fee receipt; The Visa Symbol on the CCD report should.be for an immediate relative visa category (IR,' CR or IW); The IV Fee Paid field on t e CCD report should show that the fee was paid; and The Interview Scheduled field on the CCD report should be blank, or if scheduled, the date that the NVC scheduled the appointment should be on or after January 3, If the IVIS Beneficiary query does not return a record ("Query Returned No Data"), use the NVC Case Number to query the immigrant visa applicant (IV!DV Applicant Summary) or use the immigrant visa petition number to HUery IVIS Beneficiary.,- FOR OFFICIAL USE ONLY - LAW ENFORCEMENT SENSITIVE 17 This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS ' policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do

18 125 1 ':.:' Standard Operating Procedure fo r Form I-601A Verify Basic Eligibility SOP '6. (cont.) If the Con ular Case number and/or the immigrant visa petition that the applicant provided on the I-601A (Part 2) does not match the DOS fee receipt and/or the approval notice, continue with adjudication of the. I-601A after verifying that the applicant's DOS fee receipt is associated with an imm ediate relative visa petition that has not been revoked by USC IS... If the Consular Case Number associated with the DOS fee receipt is not related to an immediate relative visa petition, deny the I-601A. If the Interview Scheduled field shows that the National Visa Center (NV C) already scheduled the applicant to appear at a U.S. Embassy or consulate for the immigrant visa interview associated with the corresponding Consular Case Number, and the NVC scheduled the interview before January 3, 2013, deny the I-601A. The case must be denied "even ifthe interview has since been cancelled or rescheduled after Januar;; 3,2013." 8 C R 212.7(e)(4)(iv)..... FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITNE. 18 This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of. Information Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) in(l?rmation, and is not to be released to the public or other personnel who do

19 1252 Standard Operating Procedure for Form I-601A Verify Basic Eligibility SOP 7. Query PCQS or the EOIR screen hi CIS for each of the applicant's A-numbers to determine whether the applicant has ever been in removal proceedings. If the applicant has ever been issue a Notice to Appear (NT A) or Order to Show Cause (OSC), review the Enforcement Alien Removal Module (EARM) and any related A- or T-files to determine the outcome of the proceedings. If an' NT A was served on the applicant, but there is no record that the NT A was ever filed with the immigration court (i.e. no hearing scheduled, no data in EOIR, etc.), proceed with adjudication of the 1-60IA. If the applicant was previously in removal proceedings that were dismissed or terminated, proceed with adjudication oft e I-601A. Review the section of the I-601A related to removal proceedings (Part 1, Item Numbers 25 and 26), and any documents. submitted with the I-601A to determine whether the applicant is in removal. 'proceedings (includes being subject to a final removal. order, a finai order of exclusion or deportation under former INA section 236 or 242 (pre-april I, 1997), or to a DHS order reinstating a prior removal order). If the applicant is in removal proceedings b].it these proceedings were administratively closed and were not recalendared at the time the applicant filed the I-601A,.Proceed with adjudication of the I-601A. FOR OFFICIAL USE ONLY- LAW ENFORCEMENT SENSITIVE 19 This document is FOR OFFICIAL USE ONLY. It contains infonnation that may be exempt from public release under the Freedom of lnfonnation Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) infonnation, and is not to be released to the public or other personnel who do

20 1253 Standard Operating Procedure for Form I-601A (cont.) -. Verify Basic Eligibility Deny the I-601A if the applicant is: SOP _ In removal proceedings that are administratively closed but were recalendared at the time the I-6.01A was filed. o In removal proceedings that have not been administratively closed; terminated or dismissed. o Subject to a final order of removal, deportation, or exclusion; or o Subject to the reinstatement of a prior removal order. cj. I FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITNE 20 This document is FOR OFFICIAL USE ONLY. It contains infonnation that may be exempt from public release under the Freedom of. Information Act (5 U.S. C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid ''need-to-know" basis without prior approval from the originator.

21 1254 Standard Operating Procedure for Form I-601A Verify Basic Eligibility Review PCQS or CLAIMS printouts to determine whether the applicant has ever filed a Form 1-485, Application to Register Permanent Residence or Adjust Status. lfpcqs or CLAIMS shows that an is still pending, verify that the has not been adjudicated or withdrawn. 1 SOP -" If the is pending, deny the I-601A. After ( adjudicating the I-601A, route the A-file to the appropriate location for continued adjudication of the If CLAIMS shows that the is pending, but the was adjudicated or withdrawn, backend update the and continue adjudication of the I- 60 1A. If the A-file containing. the was not requested, or the request for the file was denied, contact the File Control Office (FCO) where that A-file is located to verify the status of the If the FCO confirms that the is pending, deny the I-601A. I FOR OFFICIAL USE ONLY - LAW ENFORCEMENT SENSITIVE 21 This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public.release under the Freedom of Information Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed; and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do

22 1255 Standard Operating Procedure for Form I-601A Inadmissibili.Y Determination for Unlawful Presence and Reason to Believe that Additional INA Section 212(a) Grounds May Apply (Return to Table of Contents) After verifying that an applicant meets the basic eligibility requirements above, ISOs will perform the following actions to determine whether additional inadmissibility grounds may apply: Inadmissibility Determination for Unlawful Presence SOP and Reason to Believe Additional INA Section 212(a) Grounds May Apply 1. Review the results of the security checks (FBI fingerprint, FBI name check, and ffiis), the answers in Part 1 of the I-601A (and any explanation in Part 5., Additional Information), and any related A- or T- files. If there are any national security concerns, route the file to FDNS Operations for review in accordance with local policies. FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITNE 22 This document is FOR OFFICIAL USE ONLY. It contains infonnation that may be exempt from public release under the Freedom of Information Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do

23 1256 Standard Operating Procedure for Form I-601A Inadmissibility Determination for Unlawful Presence and Reason to Believe Additional INA Section 212(a) Grounds May Apply SOP 2. Presume that the applicant will be found inadmissible at the time of the immigrant visa interview for prior unlawful presence under INA section 212(a){9)(B)(i). 0 Do not analyze whether the individual has accrued sufficient unlawful.presence or whether the individual has triggered the bar in the past; o Do not consider whether possible. statutory/policy exceptions apply in the individual's case. The consular officer will determine at the time of the immigrant visa interview whether the individual is inadmissible based on unlawful presence. Presume that other grounds of inadmissibility apply if, based on the immigration or criminal history records, USCIS has reason to believe that another ground of inadmissibility may apply at the time of the immigrant visa interview. 0 A USC IS finding of reason to believe does not involve a complete analysis regarding whether a particular ground of inadmissibility applies, which would require a review of statutory exceptions or case law.that may affect interpretation of the provision or a final determination of inadmissibility. The Consular office r will conduct a full admissibility assessment and make a final determination during the applicant's immigrant visa interview. 0 For grounds of inadmissibility based on health (INA section 212(a)(l }(A)); public charge (INA section 212(a)(4)); aliens present without admission or parole {INA section 212(a)(6)(A)); and documentation requirements (INA section 212(a)(7)}, fo llow th instructions immediately below. FOR OFFICIAL USE ONLY- LAW ENFORCEMENT SENSITIVE 23 This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S. C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid "need-to-know" basis without rior approval from the originator. ' -

24 1257 Standard?perating Procedure for Fonn I-601A (cont.) ' Inadmissibility Determination for Unlawful Presence and Reason to Believe Additional INA Sect on 212(a) Grounds May Apply Do!!! find a reason to believe that the following grounds will apply at the time ofthe immigrant visa interview: Health-related grounds (INA section 212(a)(l)) unless the record includes mention of a specific medical condition noted.in the INA that would render the individual inadmissible under INA section 212(a)(l )(A), Public Charge (INA section 212(a)(4)), Present without admission/parole (INA section I 212(a)(6)(A)), or Missing documentation requirements (INA section 212(a)(7)). SOP ' ; I I \ FOR OFFICIAL USE ONLY - LAW ENFORCEMENT SENSITIVE 24 This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do not have a valid ''need-to-know" basis without prior approval from the originator.

25 1258 Standard Operating Procedure for Fonn I-601A Inadmissibility Determination for Unlawful Presence and Reason to Believe Additional INA Section 212(a) Grounds May Apply SOP 3. Criminal grounds of inadmissibility (INA section (a)(2)): Find reason to believe that INA section 212(a)(2) (criminal grounds) may apply if the record contains evidence that the applicant was charged with an offense or convicted of any crime other than minor traffic citations, such as parking violations, red light/stop sign violations, expired. license or. registration, and similar offenses or noncriminal immigration violations, regardless of the sentence imposed or whether the offense is a Crime Involving Moral Turpitude (CIMT). Fraud and willful misrepresentation (INA section 212(a)(6)(C)(i)), and alien smuggle (INA section 212(a)(6)(E)); Find reason to believe that INA section 212(a)(6)(C)(i) or 212(a)(6)(E) may apply if the applicant answers "Yes" to Item Numbers 27 or 28, respectively, and the applicant's explanation in Part 5., Additional Information, shows that he or she understood the question. If the explanation in Part 5., Additional Information, suggests that the applicant did not understand the question, consult your supervisor before continuing your review of the I- 60IA. Unlawfully present' after previous immigration violation (INA section 212(a)(9)(C)(i)(I)): Find reason to believe that INA section 212(a)(9)(C)(i)(l) may apply if the applicant indicates in Item Number 17 that he.or she last entered the United States without inspection and admission or parole, and the applicant indicates that prior to his or her last entry the applicant was previously unlawfully present in the United States for more than one year in the aggregate (Item umbers 18-24). FOR OFFICIAL USE ONLY - LAW ENFORCEMENT SENSITNE 25 This document is FOR OFFICIAL USE ONLY. It contains infonnation that may be exempt from public release under the Freedom of 'lnfonnation Act (5 U.S. C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) infonnation, and is not to be released to the public or other personnel who do not have a valid "need-to-know" basis without prior approval from the originator,

26 1259 Standard Operating Procedure for Form I-601A Inadmissibility Determination for Unlawful Presence SOP and Reason to Believe Additional INA Section 212(a) Grounds May. Apply 4. Do not issue an ' RFE solely to determine whether there is reason to believe another inadmi sibility ground may apply. If an applicant fails to answer one or more questions in Part 1, but there is no reason to bfdieve another inadmissibility ground may apply, based on your review of the record, proceed to the Extreme Hardship and Discretionary analysis. r If the record shows that the applicant has been arrested, but there is no court disposition or other record showing a criminal conviction, proceed to the Extreme Hardship and Discretionary analysis. NOTE: An ISO, in his or her discretion, always has the authority to request additional evidence if the ISO believes that the applicant would ultimately be eligible for the provisional unhiwful presence waiver if the applicant provided the additional information. NOTE: An ISO should request information about immigration or criminal history records as part of the discretionary analysis if the applicant meets all other basic eligibility criteria, and the ISO believes that the applicant would be eligible for a provisional unlawful presence waiver if the applicant provides the missing information. However, the request must be added to the RFE standard for Discretion. I, 5. Following the guidance in this section, deny the I A ifthere is reason to be./ieve that the applicant may be found inadmissible at the time of the immigrant visa interview for any inadmissibility ground other than unlawful presence under INA section 212(a)(9)(B)(i). I Consult with a supervisor if you have any doubt about whether there is reason to believe another inadmissibility ground may apply. FOR OFFICIAL USE ONLY - LAW ENFORCEMENT SENSITIVE This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom Information Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or. other persomel who do not have a valid "need-to-know" basis without rior approval from the originator.

27 1260 Standard Operating Procedure for Form I-601A Analyze Extreme Hardship and Weigh Discretionary Factors (Return to Table of Contents) After verifying that an applicant meets the basic eligibility req irements, including that there is no reason to believe additional inadmissibility grounds may apply at the time of the immigrant visa interview, ISOs will perform the following actions to determine whether the I-601A should be approved based on the specific factors of the case: Analyze Extreme Hardship and Weigh Discretionary SOP Factors \ ' 1. Review Parts. 3 and 5 of the form. Identify any qualifyipg relatives (U.S. citizen spouse or parent). You will presume extreme hardship and proceed to the discretionary analysis if the qualifying relative is the U.S. citizen spouse or parent petitioner who died and the applicant meets the requirements of INA section 04(1) as a surviving relative. Applicants who do not meet the requirements of INA section 204(1) must establish extreme hardship to another qualifying relative (U.S. citizen spouse or parent). If a qualifying relative is not the immigrant visa petitioner, verify that the file contains evidence of the qualifying relative's U.S. citizenship and evidence of the Claimed relationship (spouse or parent). If there is insufficient evidence, request the missing evidence using the appropriate RFE standard cleared by FOD. NOTE: An applicant may have more than one qualifying relative. The qualifying relative does not need to be the immigrant visa-petitioner; however, for purposes of the I- 601A, the individual does have to be a U.S. citizen spouse or parent. If the applicant establishes extreme hardship to any one qualifying relative, it is not necessary to request evidence related to any other qualifying relatives. I 2. Review Parts 4 and 5 of the I-601A and any supporting evidence. Identify each hardship claimed to a qualifying relative.. FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITNE 27. This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Uncla5sified (SBU) information, and is not to be released to the public or other personnel who do not have a valid uneed-to-know" basis without prior approval from the originator.

28 Standard Operating Procedure for Form I-601A ' Analyze Extreme Hardship and Weigh Discretionary Factors SOP 3. Consider the claimed hardships individually and cumulatively, and consider every factor that may impact the claimed hardships to determine whether the clai ed hardships, considered in their totality, rise to the level of "extreme hardship" to a qualifying relative. The applicant bears the burden of showing that it is more likely than not (preponderance of evidence standard) that the qualifying relative would experience extreme hardship both: 0 If the qualifying relative would remain in the United States apart from the applicant; and 0 If the qualifying relative would relocate- to join the applicant abroad. Do not require the applicant to show prospective injury due to the qualifying relative's relocation if it is clear that the applicant cannot relocate, as outlined in the guidance in Section 4 below. In such cases, consider the second prong of the extreme hardship requirement to have been met (extreme hardship due to relocation) and limit the extreme hardship analysis to the first prong (extreme hardship due to separation).,-.. ' 4. If extreme hardship to a qualifying relative is not established, issue an RFE to request additional evidence using the RFE standard for Extreme Hardship cleared by FOD. If there appear to be discretionary issues as well (e.g. possible criminal convictions, fraud/misrepresentation and/or alien smuggling), include, in the RFE, a request for information or documents related to the discretionary analysis using the RFE standard for Discretion cleared by FOD. If the applicant does not show that the qualifying relative would experience extreme hardship, even after the RFE response is considered, deny the I-601A. If the applicant meets the extreme hardship requirement, proceed to the discretionary analysis. FOR OFFICIAL USE ONLY - LAW ENFORCEMENT SENSITNE 28 This document is FOR OFFICIAL USE ONLY. It contains information that may be exempt from public release under the Freedom of Information Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other persomel who do

29 " Standard Operating Procedure for Form I-601A Analyze Extreme Hardship and Weigh Discretionary SOP Factors 5. For the discretionary analysis, consider all of the favorable and unfavorable factors of the case. The fact that extreme hardship has been established should have considerable weight as a positive factor when balancing favorable against unfavorable factors. If there are any significant unfavorable factors, consider' whether those factors would render the applicant ineligible for a provisional unlawful presence waiver without having to make a discretionary analysis. If so, deny the I A for that reason. For example, if the applicant responds to an RFE with evidence that the applicant was convicted of a crime (other than minor traffic citations, such as parking violations,. red light/stop sign violations, expired license or registration, and similar offenses and noncriminal immigration violations), deny the I-601A because there is reason to ' believe the applicant may be found inadmissible on another ground at the time of the immigrant visa interview. If there are significant unfavorable factors that would not render the applicant ineljgible for the provisional unlawful presence waiver but are still relevant for the discretionary determination, weigh the favorable factors (including extreme-hardship) against these unfavorable factors. 6. If the unfavorable factors outweigh the favorable factors and J the I-601A cannot be denied for another reason, deny the 1-601A as a matter' of discretion. A supervisor must concur with any discretionary denial. 7. lfthe favorable factors outweigh the unfavorable factors, approve the I-601A.. FOR OFFICIAL USE ONLY LAW ENFORCEMENT SENSITIVE 29 This document is FOR OFFICIAL USE ONLY. It contains infonnation that may be exempt from public release under the Freedom of Information Act (5 U.S.C. 552). This document is to be controlled, handled, transmitted, distributed, and disposed of in accordance with DHS policy relating to Sensitive But Unclassified (SBU) information, and is not to be released to the public or other personnel who do AILA InfoNet Doc. '/ No (Posted 5/2/14)