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ResourcesVisa & Immigration LawUS Immigration LawHow Will The New USCIS RFE Policy Impact the I-601 Waiver Process?

How Will The New USCIS RFE Policy Impact the I-601 Waiver Process?

Transcript of the above video:

As the title of this video suggests we are discussing request for evidence so-called RFEs and the I-601 waiver process.

A quick preface in this video. I have done a number of videos discussing recent changes to USCIS's policy regarding Request for Evidence, specifically a rescission of the "no possibility" Doctrine which basically used to dictate that an Adjudicating Officer at the United States Citizenship and Immigration Service needed to go ahead and issue an RFE, Request for Evidence unless there was, and I quote "no possibility that the case could be successful and there could be an approval in the case". And that "no possibility" doctrine was a pretty tough one for those adjudicators to sort of for lack of a better term, overcome. In most cases they need to issue an RFE if there was any sort of need for clarification or even where eligibility had not been established because it might still be possible for the case to be rectified pending further evidence being presented. That policy has been rescinded. It is no longer the policy of USCIS to issue RFEs automatically where eligibility has not been established. The "no possibility" doctrine no longer exists so what to take away from that from a practical standpoint, there is going to be, in my opinion, probably more denials of various petitions from USCIS as a result of a prima facie case for eligibility not being made. This could have a substantial impact on the I -601 waiver process.

In the past, many of the cases I have dealt with in the context of the I-601 waiver have had an RFE component, they have had a Request for Evidence, most of the time something along the lines of further clarification with respect to qualification of a relative or further clarification with respect to how a given situation would result in an extreme hardship to an American citizen or lawful permanent resident. All of these things sort of in total, in the totality of circumstances resulted in a number of RFEs being issued.

I think moving forward, the I-601 process is going to get much more difficult.  I think making ones case at the outset is extremely important.   Notwithstanding that, we have in the past seen what I felt to be were pretty clear-cut cases go ahead and get an RFE anyway  and whether or not we're going to continue to see that  or we are going to see faster approval, faster denial that is hard to say . But what my gut tells me is all of this basically adds up to a larger possibility of faster denial rather than sort of faster approval. 

So the thing to take away from this is those who  are serious about getting an I-601 waiver  adjudicated successfully  are strongly, strongly encouraged to contact a legal professional  in order to get good advice regarding how best to proceed  and probably have that legal professional, if they  have dealt with immigration matters substantially in the past, especially with respect to I-601 waivers,  get that professional’s assistance in order to get the best case on file possible in order  to, if a denial comes down the pike, a motion to reopen, a motion to reconsider,  an appeal even possibly but again all of that is going to be based on  the initial filing  and where this "no possibility" doctrine has been rescinded and  it is now possible for a denial to just occur out of hand .  It is possible, in fact it is highly probable, that weaker cases could sort of get locked in or sort of frozen as the adjudicative standard for what is going to be used on appeal and  that can be problematic. 

So the thing to take away from this. Understand that this is something of a sea change  with respect to USCIS doctrine  and possibly the assistance of a legal professional  with respect to I-601 waiver filing  is probably a good course of action, especially moving forward.