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Archive for 4. September 2009

I-601 Waiver: Health-related Inadmissibility Grounds

4. September 2009 by admin.

The alien has a communicable disease of public health significance, as defined by the Secretary of Health and Human Services (HHS). 

  • “Communicable disease of public health significance” and includes 8 medical conditions.

  • HIV3 is listed in the INA and the HHS regulations as a communicable disease of public health significance.

The alien seeks admission with an immigrant visa, fiancé visa or V visa, or is applying for adjustment of status, and has not presented documentation of having been vaccinated against vaccine preventable diseases.

  • Required vaccines: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, haemophilus influenza type B, hepatitis B, varicella, pneumococcal, and influenza.

  • Required vaccines also include any other vaccines recommended by the Advisory Committee on Immunization Practices

    The alien has been determined (in accordance with regulations prescribed by the Secretary of HHS in consultation with the Attorney General):

    • To have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or

    • To have had a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others.

    The alien has been determined (in accordance with regulations prescribed by the Secretary of HHS) to be a drug abuser or addict. Note that this ground cannot be waived under INA 212(g). An alien who is inadmissible under this provision remains inadmissible until it is determined, under HHS rules for medical examinations, that his or her drug abuse or addiction is in remission.

    An individual who has been found inadmissible under this provision due to drug abuse or drug addiction is not precluded from undergoing a reexamination at a later date at his/her own cost. If, upon reexamination, the civil surgeon or panel physician certifies, per the applicable HHS regulations and CDC’s Technical Instructions, that the individual is in remission, this ground of inadmissibility no longer applies.

    If you were denied a K-1 fiancee or K-3 spousal visa due to a health-related provision, contact an immigration attorney at www.myfianceevisa.com or call 626-771-1078 to discuss your situation.


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I-601 Waivers: Request for Evidence and Notice of Intent to Deny Notices

4. September 2009 by admin.

If additional information is required in order to adjudicate a Form I-601, a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) may be issued to an applicant as a matter of discretion.  

• An RFE may be issued to request missing initial or additional evidence from an applicant; the timeframe for response to an RFE cannot exceed 12 weeks.

• A NOID may be issued based on evidence of ineligibility and it is mandatory when derogatory information is known to USCIS, but which may not be known to the applicant. The regulations provide an applicant with a maximum of 30 days to respond to a NOID.

An RFE or NOID is not necessary in every case prior to adjudication, and a USCIS  adjudicator may approve or deny an I-601 without first issuing a  RFE or NOID unless required pursuant to 8 CFR 103.2(b)(16).

If you’ve been denied a K-1 fiancee or K-3 spousal visa, contact an immigration attorney at 626-771-1078 or visit www.myfianceevisa.com for more information.


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I-601 Waivers: Reviewing the Grounds of Inadmissibility

4. September 2009 by admin.

The adjudicator makes an initial  determination that the applicant is inadmissible and identifies all inadmissibility grounds that apply; the adjudicator should not assume that the Consular Officer correctly identified the inadmissibility grounds. If additional inadmissibility grounds are identified, they should be noted in the decision.

If the adjudicator determines that the Consular Officer erred and that the applicant is in fact admissible to the United States, the application should be returned to the DOS and the applicant notified. The database should be updated to reflect that the application has been closed and returned to DOS because the applicant is admissible.

Be aware that the adjudicator may identify additional inadmissibility grounds based on events that are not included in the Form I-601 (for example, there is evidence in the record of a material misrepresentation to gain an immigration benefit, but the consular officer only noted an unlawful presence inadmissibility  round and the applicant only addressed that in the Form I-601). In that case, the adjudicator must advise the applicant to submit a revised Form I-601 to address the additional eligibility grounds. The applicant should be given 45 days to submit a revised Form I-601, without fee, directly to the USCIS office that is adjudicating the waiver.

If the applicant is inadmissible under some ground for which no waiver is available, the Form I-601 should be denied, because the applicant is ineligible to apply for a waiver, and consequently no purpose would be served in granting the application.

If you’ve applied for a K-1 fiancee or K-3 spousal visa and were denied, contact an immigration attorney at 626-771-1078 or visit www.myfianceevisa.com for assistance.


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I-601 Waivers: Fingerprint Processing

4. September 2009 by admin.

Normally, DOS obtains electronic fingerprints from the applicant, forwards them to the FBI, receives the FBI response and includes it in the waiver packet provided to USCIS for adjudication.

If the FBI response indicates a crime involving moral turpitude, the RAP sheet should also be included in the waiver packet along with court dispositions or an explanation as to why court dispositions are not available, per guidance in the FAM.

If the fingerprints are rejected by the FBI, the applicant must be fingerprinted a second time, either by requesting the applicant to return to the USCIS overseas office, or by coordinating with the DOS embassy or consulate where the applicant resides to retake the prints. If the fingerprints are rejected a second time, the applicant must provide the rejected fingerprint sworn statement, a “no record” statement from the police department in each locality where he or she has resided during


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I-601 Waivers: Background Checks

4. September 2009 by admin.

Prior to adjudication of the waiver, USCIS staff research the Central Index System (CIS) to determine whether an A-file exists for the applicant. If there is a record of an A-number, staff will note the A-number on the Form I-601 and also:

• Review the EOIR screen through RAPS, EARM, or CIS to determine whether the applicant has been previously placed in removal/deportation proceedings before EOIR;

• Review CIS, CLAIMS, the EOIR screen and, where appropriate, RAPS to determine whether the applicant has applied for asylum or adjustment of status and, if so, note the dates the applications were pending;

• Review EARM for any information regarding prior deportations;

• Review CIS for NAILS record(s). If CIS indicates that there is a NAILS record, IBIS must be queried to determine the nature of the NAILS record, even though some of the information may already be contained in results of a CLASS check Events that result in the NAILS hit may have occurred between the IV application/CLASS check and the time the waiver is adjudicated

If you’ve had a K-1 fiancee visa or K-3 spousal visa denied, please contact an immigration attorney at 626-771-1078 or visit www.myfianceevisa.com for more information


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I-601 Waivers: Where to File for K-1 and K-3 Visa Denials

4. September 2009 by admin.

An applicant for an immigrant visa or K-1 or K-3 nonimmigrant visa who is inadmissible should file an application for a waiver. The waiver application is filed  with the U.S. Consulate’s Immigrant Visa Section (IV) that is considering the visa application.

When a consular officer determines that the alien is admissible except for the grounds for which a waiver may be sought, the consular officer informs the applicant of the requirement to file a Form I-601. The alien must file the application at the consular post, which receipts the fee and then forwards the  application to USCIS for a decision. Consular posts should send to overseas USCIS offices only those waiver applications where there are no other grounds of inadmissibility that cannot be overcome. The FAM makes clear that the determination of whether or not to grant a request for an immigrant waiver lies solely within the jurisdiction of DHS. Even if the consular officer does not believe an applicant is eligible for a waiver, DOS must submit the waiver request to the DHS at the applicant’s insistence to allow DHS to determine waiver eligibility.

If you’ve applied for a K-1 fiancee visa or K-3 spousal visa and have been denied, contact an attorney at www.myfianceevisa.com or 626-771-1078 for assistance.



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