Five Practice Considerations for I-601A Filings

1. Thoroughly Vet the Applicant’s Background

Be sure to thoroughly vet the applicant’s background at the beginning of the case to avoid surprises at the adjudication stage. File all necessary Freedom of Information Act (FOIA) requests to verify existing records related to any encounters between the applicant and the government. For example, if your client has ever been apprehended at the border or port of entry, a FOIA with CBP should be filed to determine what happened. In terms of timing, consider filing the FOIA either before or around the same time that you file the Form I-130. For more information on FOIA, see AILA’s Practice Pointer: Things to Consider Before Filing an Unlawful Presence Waiver (Doc. No. 13080645)

2. Verify That Your Client Has the Qualifying Relationship and Can Document Extreme Hardship

During the initial intake, review and confirm the applicant’s eligibility. This includes having the necessary immediate relative petitioner and qualifying relative. It is also very important to familiarize yourself with the threshold of proof necessary to meet the extreme hardship standard. A good case for reference is Matter of Cervantes Gonzalez 22 I&N, Dec. 560 (BIA 1999). See alsoAAO Finds Extreme Hardship in I-601 Waiver. (Doc. No. 07112662) Waiting to analyze the strength of the hardship claim halfway through the process can frustrate applicants if you ultimately determine that the claim is weak.

3. Organize Your I-601A Submission Packet

When preparing your waiver for submission, organize your packet in accordance with the suggested format set forth by the NBC. This will reduce the chance of lost or misplaced documents. See Best Practices for Packaging Provisional Waiver Applications. (Doc. No. 13072740) In addition, the instructions to Form I-601A at pages 8-11 indicate the types of evidence to be submitted with the application and can be a source of order for exhibit submissions.

4. Provide Proper Warnings to Your Client

Communicate to the applicant that the Department of State always has the final say on admission at the end of the process. They should know that even if the provisional waiver has been approved, other factors could result in a consular denial of the visa. See USCIS Final Rule on Provisional Unlawful Presence Waivers. (Doc. No. 13010240)

5. Contact AILA with Troubling Cases

Contact AILA by e-mailing reports@aila.org if you receive a troubling RFE or denial. These reports assist AILA in approaching the government with concerning trends in the adjudications process. They do make a difference!

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