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Waiving Goodbye to Unappealable Decisions: Indirect AAO Jurisdiction, or Why Having Your Appeal Dismissed Can Sometimes be a Good Thing

The USCIS Administrative Appeals Office, or AAO, has administrative appellate jurisdiction over a wide variety of USCIS decisions that are not appealable to the Board of Immigration Appeals.  This jurisdiction is primarily set forth in a regulatory list that has been absent from the Code of Federal Regulations since 2003, but was incorporated by reference that year into DHS Delegation 0150.1.  Pursuant to that delegation, as manyAAOdecisionsstate, the AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. 103.1(f)(3)(iii) as in effect on February 28, 2003.  (It has been previously pointed out by attorney Matt Cameron that a currently nonexistent jurisdictional regulation is an undesirable state of affairs for an appellate body; USCIS recently indicated in a July 2013 Policy Memorandum regarding certification of decisions that DHS intends to replace the list in the regulations in a future rulemaking.)

The regulatory list of applications over which the AAO has jurisdiction does not include Form I-485 applications for adjustment of status, with a minor exception relating to applications based on a marriage entered into during removal proceedings denied for failure to meet the bona fide marriage exemption under INA §245(e).  Thus, it would appear that the AAO would not have appellate jurisdiction over denials of adjustment applications, and that one’s sole administrative recourse if an adjustment application is denied would be to seek review before an immigration judge in removal proceedings, as is generally permitted (except for certain arriving aliens) by 8 C.F.R. §1245.2(a)(5)(ii).  But appearances can be deceiving.

Many, although not all, of the grounds for denial of an adjustment application are potentially subject to waiver under appropriate conditions.  If an application is denied because the applicant was found inadmissible under INA §212(a)(2)(A)(i) due to conviction for a crime involving moral turpitude (“CIMT”), for example, a waiver can be sought under INA §212(h) if either the criminal conduct took place more than 15 years ago, or the applicant can attempt to demonstrate that the applicant’s U.S. citizen or lawful permanent resident spouse, parent, son or daughter would face extreme hardship if the applicant were not admitted.  Similarly, one who is found inadmissible under INA §212(a)(6)(C)(i) due to fraud or willful misrepresentation (not involving a false claim to U.S. citizenship taking place after September 30, 1996) can seek a waiver of inadmissibility under INA §212(i) based on extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.  Various other grounds of inadmissibility are waiveable as well.

While the AAO does not have jurisdiction directly over the denial of an adjustment application, the AAO does have jurisdiction over the denial of most waiver applications.  And in the AAO’s view, appellate jurisdiction to determine whether someone should have been granted a waiver necessarily includes jurisdiction to decide whether that applicant even needed a waiver in the first place.  If the AAO finds that a waiver was unnecessary, it will dismiss the waiver appeal and remand for further processing of the adjustment application.  That is, it will decide on appeal that the applicant was not, in fact, inadmissible, and thus in effect will have reviewed the denial of the underlying adjustment application even without regard to whether a waiver would be justified if one were indeed necessary.  Although this process does not appear to be documented in any precedential AAO decision, comparatively few AAO precedent decisions of any sort having been published, this exercise of indirect appellate jurisdiction by the AAO occurs with some frequency in non-precedential, “unpublished” decisions that have been made available online (generally by USCIS itself, or occasionally by other sources).

Dismissal of a waiver appeal as moot can occur in the context of a §212(h) waiver, for example, where the AAO finds that the applicant’s conviction was not for a CIMT (see also these additional decisionsfrom 2012; 2010; February, March, Apriland June of 2009; 2008; and 2007).  Even if the applicant does have a CIMT conviction, that AAO may conclude that the applicant’s only conviction for a CIMT qualifies for the petty offense exception under INA §212(a)(2)(A)(ii)(II) and thus does not give rise to inadmissibility (see also these decisions along the same lines from Januaryand Marchof 2009, 2008, and 2006).  Dismissal of a §212(h) waiver application as moot can also occur when the AAO finds that the applicant was not convicted of a crime at all given that the official disposition of a charge was a “Nolle prosequi, or that an applicant who was not convicted of a crime had not given a valid admission to the elements of a crime, in accordance with the procedural safeguards required by precedent, so as to give rise to inadmissibility in the absence of a conviction.  Outside the CIMT context, as well, the AAO can dismiss a §212(h) waiver appeal as moot upon a finding that no waiver is needed, such as when someone who was thought to have a waiveable conviction involving 30 grams or less of marijuana successfully points out on appeal that disorderly conduct under a statute not mentioning drugs is not an offense relating to a controlled substance.

In the context of a denial based on inadmissibility for fraud or misrepresentation, the AAO can dismiss an appeal from the denial of a §212(i) waiver as moot if it finds that the misrepresentation was not material (see also these decisions from 2010, 2009and 2007), or that an applicant who was victimized by others submitting a fraudulent application on his behalf without his knowledge did not make a willful misrepresentation, or that any misrepresentation was the subject of a timely retraction (see also this decision from 2006).  AAO dismissal of a §212(i) waiver appeal as moot can also be used to vindicate the legal principle that presenting a false Form I-94 or similar false documentation to an employer to obtain employment does not give rise to inadmissibility under §212(a)(6)(C)(i), and neither does procuring false immigration documentation from a private individual more generally, because a misrepresentation under 212(a)(6)(C)(i) must be made to an authorized U.S. government official.  Finally, AAO dismissal of a §212(i) waiver appeal as moot can occur where the only alleged misrepresentation occurred in the context of a legalization program which is subject to statutory confidentiality protection, such as the SAW (Special Agricultural Worker) program under INA §210 or a LULAC late legalization application or other application under INA §245A, and therefore any such misrepresentation cannot be the basis of inadmissibility under §212(a)(6)(C)(i) because of the confidentiality protection.

This sort of indirect AAO jurisdiction can also be used to correct errors regarding inadmissibility for unlawful presence under INA §212(a)(9)(B), if a waiver application is filed under INA §212(a)(9)(B)(v).  For example, in a 2012 decision involving an applicant who was admitted for duration of status (D/S) and had been incorrectly found to have accrued unlawful presence after failing to maintain status even absent any finding of such by USCIS or an immigration judge, contrary to the 2009 Neufeld/Scialabba/Chang USCIS consolidated guidance memorandum on unlawful presence, the AAO dismissed the appeal as moot upon finding that the applicant was not, in fact, inadmissible under §212(a)(9)(B).

The AAO’s indirect appellate jurisdiction over inadmissibility determinations has even been exercised where the initial inadmissibility determination was made not by a USCIS officer in the context of an application for adjustment of status, but by a Department of State consular officer in the context of a consular application for an immigrant visa.  In a 2009 decision, the AAO dismissed as moot an appeal from the denial of a §212(h) waiver by the Officer in Charge (OIC) in Manila, holding that the applicant did not require a waiver because the applicant’s admission to an examining physician that he had used marijuana in the past did not give rise to inadmissibility, and that Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) (finding a valid admission to the elements of a crime resulting in inadmissibility under similar circumstances) did not apply because the applicant and the office that made the decision were located in the Philippines rather than within the jurisdiction of the Ninth Circuit.  The AAO ordered “the matter returned to the OIC for further processing of the immigrant visa application.” It explained the source of its authority in this context as follows:

The Secretary of Homeland Security (and by delegation, the AAO) has final responsibility over guidance to consular officers concerning inadmissibility for visa applicants. See Memorandum of Understanding Between Secretaries of State and Homeland Security Concerning Implementation of Section 428 of the Homeland Security Act of 2002, issued September 30, 2003, at 3.

Matter of X- (AAO June 17, 2009), at 4.

Nor was that Manila case an isolated exception, although the detailed explanation of the source of the AAO’s authority in the consular context that was contained in that decision is rarer that the exercise of the authority itself.  The AAO has also dismissed as moot an appeal of the denial of an application for a §212(h) waiver by the Mexico City district director in the case of an applicant who sought an immigrant visa in the Dominican Republic and had been convicted of a firearms offense which would properly give rise to deportability but not inadmissibility; dismissed an appeal from a decision of the Frankfurt, Germany OIC denying a §212(h) waiver for an applicant whom the AAO determined had not been convicted of a CIMT; dismissed an appeal from a decision of the Vienna, Austria OIC denying a §212(h) waiver for an applicant the AAO found had only been subject to juvenile delinquency proceedings not giving rise to a conviction for immigration purposes under Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2001); and dismissed another appeal from a decision of the Vienna OIC where the AAO found that the applicant’s conviction qualified for the petty offense exception.  Indeed, the AAO has exercised its indirect appellate jurisdiction over a consular inadmissibility determination in at least one appeal from a decision of the Mexico City district director where “the applicant did not appear to contest the district director’s determination of inadmissibility” but the AAO found that neither of the crimes of which the applicant had been convicted was a CIMT.  The AAO’s indirect appellate jurisdiction has also been exercised in a case coming from the New Delhi, India OIC where an applicant disputed his date of departure from the United States which started the running of the ten-year bar, and the AAO found that the applicant’s actual departure had been more than ten years prior and thus no §212(a)(9)(B)(v) waiver was required.

Perhaps most interestingly, it appears that the AAO will even exercise its indirect appellate jurisdiction over inadmissibility determinations in some cases where the applicant has failed to demonstrate prima facie eligibility for the relevant waiver, although the only examples that this author have been able to find of this involve the AAO’s indirect jurisdiction over USCIS adjustment denials rather than consular-processing of an immigrant visa.  In a 2006 decision, an applicant who had not provided any evidence that his wife was a Lawful Permanent Resident who could serve as a qualifying relative for either a §212(i) waiver or a §212(a)(9)(B)(v) waiver was found not to be inadmissible because he had made a timely retraction of any misrepresentation, and had accrued no unlawful presence due to last departing the United States in 1989.  In a 2009 decision, an applicant who had pled guilty to hiring undocumented workers, and who had been found inadmissible under INA §212(a)(6)(E)(i) for alien smuggling and appealed the denial of his application for a waiver of inadmissibility under INA §212(d)(11), was found not inadmissible by the AAO, which withdrew the district director’s contrary finding—even though the district director had found that the applicant did not meet the requirements of §212(d)(11), and seems very likely to have been right about that, since §212(d)(11)applies only to an applicant who “has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.”  And in 2010, the AAO declared moot a waiver application under INA §212(g) by an individual infected with HIV who apparently had not established any relationship with a qualifying relative, on the ground that in January 2010 the Centers for Disease Control had removed HIV from the official list of communicable diseases of public health significance, and therefore HIV infection was no longer a ground of inadmissibility.  Some potentially difficult ethical and practical questions would need to be resolved before deliberately filing a waiver application on behalf of an applicant ineligible for such waiver in order to obtain AAO review of whether the applicant was inadmissible at all, but it is at least a possibility worthy of further analysis.

So when an application for adjustment of status, or even for a consular-processed immigrant visa, is denied, it is important to keep in mind that an appeal may be available even if it does not appear so at first glance, and that establishing the necessary hardship to a qualifying relative to support a waiver application is not necessarily the only way to win the case.  If a waiver of the ground upon which the denial was based is at least theoretically available, so as to support AAO jurisdiction over the denial of that waiver, then one can leverage the waiver to seek AAO review of whether a waiver was necessary in the first place.

US MISSION IN INDIA EXPANDS INTERVIEW WAIVER PROGRAM: DOES THIS BODE WELL FOR H-1B AND L VISA APPLICANTS?

The U.S. Mission in India has announced expansion of the Interview Waiver Program (IWP), launched in March 2012, which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer. The U.S. embassy in New Delhi expects this expansion to affect thousands of visa applicants in India.
Under the current IWP, Indian visa applicants who are renewing visas that are still valid or expired within the past 48 months may submit their applications for consideration for streamlined processing, including waiver of a personal interview, within the following visa categories:
  • Business/Tourism (B-1 and/or B-2)
  • Dependent (J-2, H-4, L-2)
  • Transit (C) and/or Crew Member (D) – including C-1/D
  • Children applying before their seventh birthday traveling on any visa class
  • Applicants applying on or after their 80th birthday traveling on any visa class
Under the expanded IWP, the following Indian applicants may also be considered for streamlined processing:
  • Children applying before their 14th birthday traveling on any visa class
  • Students returning to attend the same school and same program
  • Temporary workers on H-1B visas
  • Temporary workers on individual L-1A or individual L-1B visas
The renewal application must be within the same classification as the previous visa. If the previous visa is annotated with “clearance received,” however, that applicant is not eligible for a waiver of a personal interview.
Not all applications will be accepted for streamlined processing. As always, consular officers may interview any visa applicant in any category. Applicants who are renewing their visas may still need an appointment for biometrics (fingerprint and photograph) collection. All applicants must submit all required fees and the DS-160 application form.
It remains to be seen whether the expanded IWP will improve the processing of H-1B and L visa applications. For over two years, US Consulates in India have routinely held up the processing of H and L visa renewal applications. Many of these applications are re-adjudicated even after the H-1B or L visa petition has been approved by the USCIS, and that too after the petitioner overcame objections by responding in detail to a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID).  The visa applicant is often requested to provide further proof of the bona fides of the job opportunity or the petitioning company. This is done mainly for visa applicants who are employees of IT consulting companies. Even if the visa applicant is able to overcome any suspicions about the employer or the bona fides of the job opportunity at the US consulate, it could take several months before the visa is re-issued and this delay could cause extreme hardship to the applicant, including the loss of the job. As a result, many beneficiaries of H-1B and L petitions have not traveled outside the US, even for a vacation, out of an abundance of caution. First time H-1B and L visa applicants may still be subjected to a vigorous re-adjudication of their petitions, but it is hoped that the expansion of the IWP to H-1B and L applicants will eliminate further delays caused due to re-adjudications. If every H-1B or L renewal applicant is subjected to the same vigorous scrutiny as before then it would defeat the objective of the expansion of the IWP.
Still, applicants for renewals of their H-1B and L visas should not take for granted that they will be accepted for streamlined processing under the expanded IWP, especially if there have been changes to the terms of the employment. For example, if the H-1B petition was approved based on the beneficiary working at a client site in Philadelphia, and the client site has now been changed to San Francisco, the US Consulates in India do not take too kindly to this change after the approval of the petition. The US consul may want to see an amendment to the H-1B petition reflecting the new job site. Otherwise, there is a likelihood that the consul could recommend to the USCIS that the petition be revoked, leading to even further delays. Although petitioners may appropriately rely on USCIS guidance that an amended petition is not required if the job site changes, so long as a Labor Condition Application (LCA) is certified for the new site prior to the employee’s move there, US consuls in India may not honor this guidance.  It is therefore recommended that a petitioner continue to amend the H-1B petition if there is a change in the job site after the approval of the petition.
The U.S. embassy in New Delhi said that this is “one of many steps the Department of State is taking to meet increased visa demand in India.” The embassy explained that in 2011, consular officers in India processed nearly 700,000 nonimmigrant visa applications, an increase of more than 11 percent over the previous year. Currently, applicants generally wait fewer than 10 days for visa interview appointments and spend less than one hour at U.S. consular facilities in India. In September 2012, the U.S. Diplomatic Mission to India implemented a new visa processing system throughout India that further standardizes procedures and simplifies fee payment and appointment scheduling through a new website at http://www.ustraveldocs.com/in. For more details about procedures for submitting a renewal application, see http://www.ustraveldocs.com/in/in-niv-visarenew.asp

DISTURBING TREND OF K VISAS BEING RETURNED FOR REVOCATION AT US CONSULATES

By Cyrus D. Mehta

My distinguished colleague, Paul Parsons, in Austin, Texas, has justifiably complained to Jeff Gorsky, Chief, Legal Advisory Opinions Section, Visa Office, State Department, http://bit.ly/bl44VO, about the arbitrary manner in which consular posts administratively close K-1 or K-3 visa cases, and recommend revocation of the petition visas when they suspect the bona fides of the relationship. The K-1 visa allows a US citizen to sponsor a fiancé or fiancée. The K-3 visa allows the spouse of a US citizen to enter the US after the I-130 petition to sponsor the spouse for permanent residence has been filed.

If the consul has doubts about the relationship or a bona fide intent to marry, the case is quickly dispatched to the USCIS for revocation even before the attorney has a chance to intervene on behalf of the hapless client. It would be one thing if the USCIS acted quickly, by issuing a Notice of Intent to Revoke (NOIR), and allowing the petitioner to respond to any allegations of fraud or the alleged lack of a genuine relationship. Unfortunately, the USCIS takes its own sweet time, and it usually takes in excess of a year, and sometimes even in excess of two years, before the petitioner receives a NOIR. To add insult to injury, the K-1 approval has a validity date of only 4 months pursuant to 8 CFR § 214.2(k)(5). If the USCIS does not act quickly by issuing a NOIR within the 4 month period, which it most likely will not do, then the DHS never provides an opportunity to the petitioner to rebut the allegations on the ground that the 4 month validity period of the K-1 has lapsed. Another distinguished colleague, Brent Renison, in Portland, Oregon, has filed a class action suit complaining against this procedure and also challenging the validity of 8 CFR § 214.2(k)(5), http://www.entrylaw.com/tranclassaction.html. This is a most worthy law suit challenging a very arbitrary practice, and affected K-1 visa applicants may seek to join as class members. Details on the class action are provided in the link above.

A careful reading of 8 CFR § 214.2(k)(5), however, reveals that there is authority to extend the validity of the K-1 petition for an additional 4 months:

Validity . The approval of a petition under this paragraph shall be valid for a period of four months. A petition which has expired due to the passage of time may be revalidated by a director or a consular officer for a period of four months from the date of revalidation upon a finding that the petitioner and K-1 beneficiary are free to marry and intend to marry each other within 90 days of the beneficiary’s entry into the United States. The approval of any petition is automatically terminated when the petitioner dies or files a written withdrawal of the petition before the beneficiary arrives in the United States.

The State Department’s Foreign Affairs Manual at 9 FAM 41.81 Note 6.2 provides further authority to extend the K-1 any number of times:

An approved K-1 visa petition is valid for a period of four months from the date of Department of Homeland Security (DHS) action and may be revalidated by the consular officer any number of times for additional periods of four months from the date of revalidation, provided the officer concludes that the petitioner and the beneficiary remain legally free to marry and continue to intend to marry each other within 90 days after the beneficiary’s admission into the United States. However, the longer the period of time since the filing of the petition, the more the consular officer must be concerned about the intentions of the couple, particularly the intentions of the petitioner in the United States. If the officer is not convinced that the U.S. citizen petitioner continues to intend to marry the beneficiary, the petition should be returned to the approving office of DHS with an explanatory memorandum.

Notwithstanding this authority in the 8 CFR and the FAM, it makes no sense for the USCIS to refuse to give the petitioner an opportunity to respond on the ground that the K-1 has a limited validity of only 4 months. If that is indeed the policy, it also makes no sense for a US Consulate to even return a K-1 petition for revocation. It is a waste of time, government expense, and falsely raises the expectations of the affected parties who may be looking forward to challenge the illusory revocation.

When a K-1 petition is sent for revocation, it is also not prudent to file a new I-129F petition for a new K-1 visa. Consuls can be quite cynical, and will most likely instruct the K-1 visa applicant to wait for a resolution of the prior petition, which was recommended for revocation, before they will adjudicate the new K-1 visa. The love birds may decide that enough is enough, and one may pop the question to the other, and they get married. This ends the fiancé or fiancée relationship, and the I-129F petition is now rendered moot, even though it has been sent for revocation. The US citizen files a well documented I-130 petition establishing the bona fides of the marriage so that the foreign national spouse can apply for an immigrant visa at the US Consulate upon the approval of this petition. Surely, the consul should not be able to say that the post is still awaiting the outcome of the resolution of the K-1 petition. There is no longer an intent to get married, the parties are now married! The petitioner cannot possibly fight the NOIR, if at all it is issued, on the I-129F. It is hoped that a consul will independently look at the bona fides of the marriage de novo without asking the spouse to wait for the outcome of the K-1 visa petition.

On the other hand, it should not be assumed that the marriage of the couple and the subsequent filing of an I-130 petition would provide the panacea to the problem of the K-1 being sent for revocation. The consul may also hold up the immigrant visa processing on the ground that there was fraud or misrepresentation in the K-1, and this would provide an independent ground of inadmissibility under INA § 212(a)(C)(6)(i) to deny the immigrant visa application. Under such circumstances, in the event that a belated NOIR is issued on the K-1, it may be well worth it to respond to the allegations even though there is no longer a fiancé or fiancée relationship, and Marc Ellis in an insightful article also suggests a similar strategy, http://www.ilw.com/articles/2006,0323-ellis.shtm. Here too, it makes no sense for the consul to find prior fraud during the K-1 visa interview (if the consul suspected their bona fide intention to marry) when the couple have further reaffirmed their bona fides after marrying, but as we know, a lot of things do not make sense in K-1 visa processing these days. In my opinion, the K-3 may not be worth it as the I-130 petition is being approved quite quickly, and if both the I-130 and the I-129F get approved simultaneously, the National Visa Center will process the I-130 and not the K-3 for consular processing.

Given the risks of K-1 revocations, and all the complications accompanying such revocations, it behooves an I-129F petitioner to thoroughly document the relationship with the fiancé or fiancée, including trips together or meetings, exchange of correspondence, gifts to each other, and affidavits from others, such as friends and relatives, attesting to the relationship. Moreover, although an engagement ceremony is not required, if such an engagement ceremony did indeed take place, it should be thoroughly documented and explained within its cultural or religious context. The petitioner and his or her fiancé (e) should also include a detailed statement about how they first met, their contacts with each other, and about their clear plans to get married in the US.

Finally, it is extremely important to note that the parties should not be married prior to the grant of the K-1 visa as that would vitiate the I-129F. Even an unregistered marriage ceremony, so long as it is recognized as a marriage in the country, such as a Hindu marriage in India, will be considered a marriage and would invalidate the I-129F petition. Under those circumstances, the petitioner should withdraw the I-129F, and instead, file an I-130 petition. Even if a marriage has occurred, it should not be assumed that it would be considered bona fide. Similar documentation must be submitted with the I-130 petition, including proof of the wedding, to further establish the bona fides of the marriage so as to ensure a smooth and quick grant of the immigrant visa at the consular post.