Imperium

9 FAM 305.4-3(A)  (U) Department of State's INA 212(d)(3)(A) Waiver Authority

(CT:VISA-1620;   09-07-2022)

(U) The Congress, in enacting INA 212(d)(3)(A), conferred upon the Secretary of State and consular officers the important discretionary function of recommending waivers for NIV ineligibilities to the Department of Homeland Security (DHS) for approval.  You should not hesitate to exercise this authority when the applicant is entitled to seek waiver relief and is otherwise qualified for a visa, and when the granting of a waiver is not contrary to U.S. interests.  The proper use of this authority should serve to further our immigration policy supporting freedom of travel, exchange of ideas, and humanitarian considerations, while at the same time ensuring, through appropriate screening, that our national welfare and security are being safeguarded.

9 FAM 305.4-3(B)  (U) Criteria for Waiver Recommendation

(CT:VISA-1620;   09-07-2022)

(U) The following conditions must be met before an INA 212(d)(3)(A) waiver can be recommended or granted:

(1)  (U) The applicant is not ineligible under INA 214(b);

(2)  (U) The applicant is not ineligible under INA 212(a)(3)(A)(i)(I), INA 212(a)(3)(A)(ii), INA 212(a)(3)(A)(iii), INA 212(a)(3)(C), INA 212(a)(3)(E)(i), or INA 212(a)(3)(E)(ii);

(3   (U) The applicant is not seeking a waiver of nonimmigrant documentary requirements of INA 212(a)(7)(B), which may only be waived under the provisions of INA 212(d)(4).  See 9 FAM 201.1; and

(4)  (U) The applicant is otherwise qualified for the NIV they are seeking.

9 FAM 305.4-3(C)  (U) Factors to Consider When Recommending a Waiver

(CT:VISA-1620;   09-07-2022)

a. (U) You may, in your discretion, recommend an INA 212(d)(3)(A) waiver for any nonimmigrant whose case meets the criteria of 9 FAM 305.4-3(B) above and whose presence would not be harmful to U.S. interests.  Eligibility for a waiver is not conditioned on having a qualifying family relationship, or the passage of a specific amount of time, or any other special statutory threshold requirement.  The law does not require that such action be limited to humanitarian or other exceptional cases.  While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose of travel.

b. Unavailable

c.  (U) You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1)  (U) The recency and seriousness of the activity or condition causing the applicant's ineligibility;

(2)  (U) The reasons for the proposed travel to the United States; and

(3)  (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

(4)  (U) Whether there is a single, isolated incident or a pattern of misconduct; and

(5)  (U) Evidence of reformation or rehabilitation.

d. (U) Explain your basis for recommending a waiver in the comments section of ARIS (the Admissibility Review Information System), including identifying any factors that lead you to conclude the applicant has been rehabilitated and unlikely to repeat actions that led to the ineligibility.  Any additional supporting documentation should be uploaded as this information will be considered by CBP's Admissibility Review Office ("ARO") and decreases the likelihood of an "Information Required" response from ARO.  All documents should be scanned into NIV using a jpeg image format.  The PDFs are not displayable to those outside of the consular section. 

It would be next to impossible to overcome Section 214(b). Countries like India where general pattern is mass immigration, CO are reluctant to grant  NIV waivers. 130 may be the best route.

I missed, did OP completed their degree? 

6 hours ago, Boiler said:

I certainly would not plan on getting a B, is it impossible no but a long shot with it without a ban.

B is next to impossible with an overstay, not to mention current NIV appointment time of at least (176 days in Chennai to 589 in Mumbai).

18 minutes ago, Boiler said:

You may need to translate that.

It is in english🤪

1 minute ago, Boiler said:

You may need to translate that.

I would still focus on ROC.

8 minutes ago, Boiler said:

USCIS will not want to end up in Court to defending their incompetence, if you end up in Court there will be something else involved.

What I meant to say is that a trial is an ultimate part of this process and it did happen. Point is, our focus should be on an issue that we believe we merit the grant and that is compelling CIS to adjudicate ROC. N400 will get adjudicated once ROC is approved.

One thing to rememeber is that in case of people having issues (case related and dynamics) at home, when they petition the court, they should get them ready because FDNS will rush to visit the house to close any loop that is holding up the case.

4 minutes ago, Boiler said:

Trial? What Trial. This is all about getting them to pull finger out and do their job.

If CIS dont agree to your conditions or have challenges, trial (hearing) is the next step.

2 minutes ago, igoyougoduke said:

and why is that so..? there is no hard rule that n-400 delay cant be challenged.  you cant challenge anything in the land of litigations 

8 U.S.C Sect 1447(b)  and interpreting Courts have held that the 120 after the date of an interview a temporal parameter to assess delay. N400 cant be argued as delayed if an examination ahs not occured and 120 days have not passed yet. As is the case of OP. He has yet to have an examination trigerring the 120 days requirement. 

2 hours ago, Crazy Cat said:

I'm not sure I am following that logic.  The ROM is not dependent on the N-400.  However, the N-400 is dependent on approval of the ROC.  Just my thoughts.  I think I would try to push both at the same time.

ROC is not dependent. However, in case of a trial, it may be difficult to argue that a delay has occured on N400, absence of an examination. It then takes the focus away from main issue. 

1 hour ago, igoyougoduke said:

why bother with two litigations when you can file wom for both i-751 and n-400 together.  waste of time and resources doing it twice when you can do it one shot 

Because you cant argu that an N400 is delayed. You can only argue for ROC. If you combine both, it just makes the argument more complex. If an ROC is what is causing the delay, why then include N400 ( assuming the examination has not taken place). Just my understanding! 

I think doing WoM for both may add complexity to it. Strategically, I would file WoM first and get the ROC moved out of the way. It will help push the N400. I do not think N400 will take long after that. Once you have an interview, if there is a delay, invoke your right under 8 U.S.C Section 1447(b)  by depriving USCIS of jurisdiction. It is their worse nightmare.

Most foundamental difference in WoM and Action under Sect 1447(b) is the WoM draw sustenanace from APA and forces an employ to work. While Sect 1447(b) is precisely for naturalization delays AFTER an interview. WoM grant Court and CIS concurrent jurisdiction, while Sect 1447(b) deprives USCIS of jurisdiction once District Court recieves your case.

Since WoM seeks to remedy administrative delay , In my modest openion, WoM for an ROC is the best tool. Tactically, you are trying to caliberate legal pressure on USCIS that is enough to add urgency to your case. Chosing RoC alone gives your case more traction because of an undisputed delay, unlike the N400.

Just now, dnhk said:

when I married, my F1 was still valid and my F1 expired after 7 months I married

Okay, I just dont see why couple answer would prompt an IO to ask for withdrawal. She could have sent RFE. 

1 minute ago, dnhk said:

1) I came to US on 2011

2) I were undergrad

F1 visa is usually for four years (four years and 9 months for engineering), at the time of your marriage, were you in F1 status?

When did your F1 status expire?

Just now, dnhk said:

What is Afile?

A-File (Admin File) is the file that contains everything you have filed with USCIS and anything DHS has collected on you through their own sources. It will help you see if there is anything deragatory. This is just my suggestion. I am more into litigation than adminsitration. of benefits. Let other chim in on your question!

When did you arrive in the US?

Were you an undergrad or grad student?

12 hours ago, dnhk said:

Please give me advice on this situation. I am still worried about my case.
My situation: I applied N400 based on Divorce (5 year rule) on November 2022 and I got interview day on June 1, 2023. However, I need to go back my country to visit my parent because my father got sick. Therefore I traveled to my country 2 week and came back US on May 31, 2023.
 

Unlucky, I got headache, and my voice changed due to the sore throat. I was not conscious when I attended the interview day (June 1) and the officer asked about my propose day, and the day I met my wife. I provided information that did not match with the information that officer had on file when I interviewed for Green Card about the time I met, and location that I proposed which makes officer confuse about it. ( I had 2 plans to propose her at that time, and I used the planed propose location and time instead of using the real one that I proposed her.

 

That is because I got Jet Lag, was sick, headache and uncomfortable after a long flight to come back US. The officer recommended me to withdraw the N400 and I followed her recommendation.

 

My question is how long I can reapply the N400 and will the mistake information that I provide will be a big Red Flag for my future interview? Do they record all my answers and ask me about the confuse information on the future interview?

 

 What happened to your F1?

Did you not attend college?

Was your F1 status valid at the time of your marriage?

When did you get married?

How long were you married to that person? 

3 hours ago, Dashinka said:

Which is why IMO asylum cases should be treated like a B2 application.  Why does it have to go through a court system?  Why cannot it not be decided by an IO, or CBP officer with an assumption the claim is false (like B2 applicants are assumed to have immigration intent), and the petitioner responsible for the burden of proof.

Sec 208; asylum procedure requires that an applicant for asylum appear for an interview with an asylum officer at one of the nationwide asylum offices. If approved, he will refer the case to Sup AO for recommended approval. If a case is denied by an AO, the applicant is issued NTA and refered to an IJ. Alternatively, if ICE catches someone, and they claim fear of return to CoO, they file an asylum application before an IJ (defensive) and that subjects them a one year bar. That is how they end up in IC. US Asylum system is broken, outdated and inconsistent with the global procedures.

8 hours ago, Timona said:

 

Even if so, they're clogging space that can be used for legitimate cases. 

Asylum division is seperate and they don't clog other cases, however, mass refugee admission does clog the system.

9 hours ago, Timona said:

@Imperium she's not from any of those communities. Additionally, she's an adult. Noone will force her into it. Lastly, there are females from those communities who are educated and have not gone that route. Being that she's reached US, she's educated. 

 

She's grasping on straws, same as the other from Kenya who was here on VJ seeking to expedite his wife's case based on terrorism. I asked him for proof. He went under. 

At the end it is our moral conviction not to lie and fabricate something. I agree with you that asylum system is overloaded with fabricated claims. 

24 minutes ago, Imperium said:

No, 8 CFR Section 208 regulates asylum procedure in administrative claims, Section 1208 regulates defensive claims in EOIR. Section 208 requires that an application for asylum must have been pending for 150 days before an EAD can be applied. 

As for her claim, she only needs to show likelyhood of FGM being practiced in Kenya. Gov will be guided by the State Department Country Report on Kenya. It states "According to UNICEF, despite the legal prohibition of FGM/C and progress made by the government in eliminating the practice, myths supporting the practice remained deeply rooted in some local cultures. UNICEF estimated 21 percent of adult women ages 15 to 49 had undergone the procedure some time in their lives, but the practice was heavily concentrated in a few communities, including the Maasai (78 percent), Samburu (86 percent), and Somali (94 percent)."

UK Home Office published a report that on page 51, details FMG prevelance and cites data.

 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/993220/CPIN_Kenya_FGM_10.06.2021.pdf

These documents, when presented to an IJ, are sufficient to warrant a grant of approval, however, when did she arrive in the US remains a deciding factor in her case.

6 hours ago, Crazy Cat said:

When an asylum case like this is filed, is the applicant granted authorized stay or TPS until the case is heard in court?

No, 8 CFR Section 208 regulates asylum procedure in administrative claims, Section 1208 regulates defensive claims in EOIR. Section 208 requires that an application for asylum must have been pending for 150 days before an EAD can be applied. 

SAVE system can now be accessed remotely. Just memorize your Anu. Though your employer or an organization may want to see your I-551. 

World is departing from old norms. Introduction of Logical Data Struture 2 will soon replace the need of placing a physical visas and endorcements on a passport. We will get electronic visas digitally entered into the epassport chip for an enhance security, authenticity and efficient border control. 

Gov are also working on a digital passport stored on your device that can be accessed by biometric transaction.

2 hours ago, Rexpet said:

Bellow is the history of my case in San Juan, Puerto Rico. I'm happy it's over, but It was a bad experience, overall. I had one appointment cancelation, then, 19-month wait for their decision (endless service requests, etc.), until I decided to sue, after which they responded right away. I travelled after the interview and checked that on my Oath documents, but they didn't view it, so they called me *after* the Oath to check my travel dates. Working with them was extremely frustrating. I'm kind of traumatized, thinking they might call be back some day and decide they changed their mind. (pretty sure it won't happen)

 

Certificate Of Naturalization Was Issued	May 25, 2023
We scheduled you for an oath ceremony for your Form N-400, Application for Naturalization.	May 9, 2023
Your Form N-400, Application for Naturalization, was placed in line for oath ceremony scheduling.	May 8, 2023
We recommended that your Form N-400, Application for Naturalization, be approved. Your case was submitted for quality review.	May 8, 2023
We are actively reviewing your Form N-400, Application for Naturalization. Our records showed nothing is outstanding at this time.	May 8, 2023
We scheduled an interview for your Form N-400, Application for Naturalization.	September 20, 2021
We cancelled the scheduled interview for your Form N-400, Application for Naturalization.	August 11, 2021
We scheduled an interview for your Form N-400, Application for Naturalization.	September 20, 2021
We are actively reviewing your Form N-400, Application for Naturalization. Our records showed nothing is outstanding at this time.	May 8, 2023
We received your Form N-400, Application for Naturalization, and sent you a receipt notice.	June 12, 2021

Long way to see light, congrats.

On 5/20/2023 at 5:36 PM, igoyougoduke said:

i have seen in certain groups. USCIS is definitely pushing back when applicants are pooling together... i have seen it .. at some point it will become ineffective when lots of people file it 

I agree. It is already losing traction. Given the surge of refugee admission, it is likely that delays will occur more often, thus, creating a need for one to know their options, for awareness purposes, if not litigating Pro Se,.

However, I do believe we should have a seperate thread on Pro Se litigation. Many of us often get nailed down by ICE into EOIR. Though I have never considered BIA/EOIR to be intimidating, I am of the openion that many other do. Litigation/legal research competency gave one skill to navigate high waters of APA/WoM and action under 1447(b). There are technicalities that one must know and how to navigate them with out losing precious times and hard earned money.

4 hours ago, new68 said:

Husbandname and Wifename Lastname.

USCIS

123 S Street City, XX 99999

Attn: 1-751

PO Box 4072 Carol Stream, IL 60197-4072

Nature of Submission: Form I-751, Petition to Remove Conditions on Residence for Wifename Lastname, A-XXXXXXX

Dear USCIS Examiner,

Enclosed, please find a JOINT I-751 petition for the Removal of Conditions on the Permanent Resident status for Wifename Lastname.

This permanent resident entered the US on a K-1 visa on 04/XX/2021, married the U.S. citizen on 04/XX/2021, and was granted Conditional Permanent Residence on 10/XX/2021that expires on 10/XX/2023

Note: A 10 year card was given erroneously despite being married for less than two years at the time of granting permanent residence. (Attached is a 1-90 receipt showing an application

to fix the erroneous card was submitting on XX/XX/2021, as of XX/XX/2023 it is still being

actively reviewed).

Included with this petition are documents that show the merging of the personal and financial lives of Husbandname and Wifename Lastname since marriage on XX/XX/XXXX and their life as a happily married couple, continuously residing at one address at 123 S Street, City, State

Please find the following enclosed (further information about these documents can be found in the cover letters in the document's folder):

Add a Table of Contents and organize and refer contents under a particular exhibit (one page). Just a suggestion!

Exhibit A:

1. Form G-1145, E-Notification of Application/Petition Acceptance for 1751 Form 2. Check for $680 (including 1751 filing fee and $85 biometric service fee) 3. Form I-751, Petition to Remove Conditions On Residence filled and signed by Wifename and Husbandname Lastname

4. Copy of Permanent Resident Card: Front and Back (ERRONEOUSLY ISSUED 10 YEAR

CARD)

5. Copy of Marriage Certificate

6. Copy of I90 Receipt showing application to fix the erroneous green card. "as of Date XX/XX/XXXX still shows as actively being reviewed

Exhibit B Evidence of co-habitation:

1. Copy of atate IDs/driver's license for Husbandname and Wifename Lastname

showing residence at the same address 2. Utility bills with both Husbandname and Wifename Lastname's name listed

3. Screenshots from USPS informed delivery showing mail delivered to the same address for Husbandname and Wifename Lastname 4. House deed showing joint ownership of property at 123 S Street St, City, Michigan

where Wifename and Husbandname Lastname have resided together since

Exhibit C Evidence of mingled finances

1. IRS tax transcripts for 2021 and 2022 showing jointly filed federal taxes for Husbandname and Wifename Lastname, along with a copy of a refund check to

from the state  made out to Husbandname and Wifename Lastname 2. Bank statements from May of 2021 to May of 2023 for the joint checking account of Husbandname and Wifename Lastname, along with a letter from the bank branch manager.

3. House deed showing joint ownership of the property at 123 S. Street St, City, State 4. Documents showing Wifename Lastname as sole beneficiary for Husbandname

Lastname's IRA accounts.

5. Durable Power of Attorney documents showing Wifename and Husbandname can act on each other's behalf in legal and medical matters

6. Documents showing Wifename covered by Husbandname's employer provided health insurance plan 1095-b for 2021 and 2022 showing coverage, hospital bill

showing health insurance being utilized 7. Permission to release health care information filed with Ascension Borgess

Exhibit D Evidence of shared experiences:

1. Amtrak tickets showing travel together between City and City on XX/XX/XXXX

2. Round-trip plane tickets showing travel together between City and City

3. Boarding passes showing travel together from City to City. 4. Tickets for places and attractions visited together in City 5. Amtrak tickets showing travel together between City and City on XX/XX/XXXX

6. Photos showing travel and experiences together as various places like. A list of locations goes here

5 minutes ago, Boiler said:

I like that, cheap quick and achieves the object.

Exactly.

And to add, When I assisted someone a year ago, AUSA told him that you should have reached out to us before filing the suite. In ref to my earlier post about sending a Demand Letter to local USA.

Here is a precedent where 5th Cir ended the controversy over examination aka "interview."  Walji v. Gonzales, 500 F.3d 432 (5th Cir. 2007)

When the U.S. Citizenship and Immigration Services ("CIS") does not grant or deny an application for naturalization 120 days after the required examination of the applicant, the applicant may ask a U.S. district court to adjudicate the application. 8 U.S.C. § 1447(b). Does the 120 days begin to run after the application interview or after the background investigation is complete? The district court held the latter and dismissed the case for lack of subject matter jurisdiction. Reviewing the record de novo, we reverse and remand.