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Update From The US Consulate In Ciudad Juarez

by Charles Wheeler

Santiago Burciaga, Chief of the Immigrant Visa (IV) Section at the U.S. Consulate in Cd. Juarez, and Warren Janssen, Officer in Charge of the USCIS office located at the consulate, each spoke at CLINIC''s annual family law training in El Paso on November 17, 2005. The following is a summary of the information they provided:

Mr. Burciaga. The current backlog in IV applications at his office is approximately 44,000. This translates to a seven-month wait for IR-1 (spouse of U.S. citizen) applicants and a nine-month wait for IR-5s (parents of U.S. citizens) from the date the consulate receives the approved I-130 petition and packet from the National Visa Center (NVC) to the date of the interview. The reasons for the backlog are two-fold:

  1. staff vacancies at the consulate, and
  2. an increase in volume of cases forwarded from the NVC.
The consulate currently employs 17 officers in the IV section (up from 8-10 officers a year ago), but hopes to be fully staffed at 20 officers soon. Over the last year, the USCIS service centers have increased the number of petitions they have approved and forwarded to the NVC. The NVC in turn has increased from 300 to 450 employees and moved to double shifts, thus resulting in a surge of cases being sent from the NVC to the consulates. The consulate in Cd. Juarez processes all of the IV applications for Mexico and approximately one third of all IV applications worldwide. It currently processes about 500 cases per day with a goal of processing 800 cases per day. It is the only consulate that performs its own review of the I-864 (affidavit of support) and the DS-230 (immigrant visa application); for all other consulates, the NVC performs an initial screening of these forms.

The consulate has out-sourced the telephonic information that it used to provide in-house, although it still schedules its own interviews. The call center is now run by a private company located in Leon, Guanajuato. The consulate provides it with updated information once a day through a computer up-link. Applicants in the United States who want information on the status of their case should call 900-479-1212 ($1.25/minute). Applicants in Mexico should call 01-900-849-4949 (12 pesos/minute). To contact the consulate by fax from the United States, the number is 011-52-656-616-9388 or 011-52-656-616-9027. To contact the consulate by e-mail, the address is

Increased background screening went into effect just over a year ago and involves both biometric requirements and photo-capturing. Every immigrant visa applicant must now be screened through the IDENT system, which adds about eight minutes to the process to receive an electronic response. The IDENT screening (index finger now, but may expand to full ten-finger prints next year) is required for all applicants over 14 years of age. Photos must now be screened and sent for data recognition. The center in Kentucky where photo images are screened has a data bank of approximately 39 million photos. It takes an average of four to five hours to receive a response to these photo submissions. All of this has lengthened the time it takes to process the applications. While most applicants are still processed in one day, some are required to return the next day.

The primary reason the consulate does not grant an immigrant visa is based on insufficient documentation. These cases are refused as opposed to denied under section 221(g) and the applicant is told what additional documentation is needed. If an applicant returns to the consulate with the documentation within a month (go to the information window between 8-10 a.m.), he or she will be rescheduled for an interview the next day. This is true for all categories of applicants (e.g., immediate relatives, preference categories, nonimmigrants). If the applicant returns more than a month later, he or she will be placed back in the cue and currently will have to wait seven to nine months for a rescheduled interview.

The number of formal denials has increased from last year, but it is in line with the increase in workload. For example, last year the consulate referred a total of 3,900 applicants to the USCIS office for waivers, while in the last month alone it referred 1,213 applicants. Applicants who know they will be denied at the consulate based on unlawful presence, fraud, or criminal convictions cannot submit the waiver prior to leaving the United States or prior to the consular interview. This is because the consulate must first review the application, weigh all the possible grounds of inadmissibility that might apply, and make a formal determination. In contrast, applicants who will be denied based on a prior deportation or removal are allowed to submit the Form I-212, Request for Permission to Reenter after Deportation or Removal, at the USCIS district office having jurisdiction over the deportation/removal, and have that adjudicated prior to the consular interview. But applicants who will need to submit both an I-212 and an I-601 waiver are instructed to submit both at the time of the denial at the consulate.

Applicants who are denied an immigrant visa but whose waiver is ultimately approved will then be placed back in the cue and rescheduled for a follow-up IV interview within seven or nine months (current backlog). At that interview, the consulate will want to see evidence that the applicant has remained in Mexico during that year-long period. Such evidence could consist of proof of employment, housing, or local purchases.

The most common ground for denial is for unlawful presence. Applicants subject to the three- or ten-year bar are told to complete an I-601 waiver, which is forwarded to Mr. Janssen's office. The next most common reason is for prior fraud on misrepresentation. These applicants can also submit a waiver application pursuant to section 212(i). The third is for prior drug use. Persons who admit during the medical exam to using an illegal drug within the last three years, or who are found with these substances in their system after drug screening, are inadmissible as drug abusers. There is an exception for mere experimentation (single use). There is no waiver for this medical ground, but applicants who have been in remission for three years since the last drug use can reapply for the visa. The consulate will keep the case open during this period. They should come prepared with evidence that they have undergone drug counseling or similar rehabilitation. A single DUI conviction within the last two years will result in a denial based on the medical ground of inadmissibility for having a "physical or mental disorder with a history of harmful behavior associated with the disorder."

It is recommended that applicants bring a copy of the affidavit of support and accompanying documentation with them to the IV interview in the event the original I-864 was not properly forwarded with the file from the NVC. For those sponsors relying on assets, remember that the assets must be located in the United States not Mexico and must equal five times the shortfall in required income. Although the USCIS and State Department has waived the affidavit of support requirement for IV applicants who can demonstrate acquisition of 40 qualifying social security quarters, the consulate still requires the applicant to satisfy the public charge ground of inadmissibility. The consulate in Cd. Juarez interprets this to mean that the petitioner on the I-130 must evidence an income of at least 100 percent of the poverty income level for their household size, as demonstrated by current employment and prior income tax returns. If the petitioner is unable to satisfy this, the officers will require the submission of an affidavit of support from a joint sponsor. Proof of prior tax filings do not have to be certified copies, but the copies do have to be signed and must include the W-2s.

Attorneys and accredited representatives are not allowed to accompany the client to the consular interview. In most cases the U.S. citizen or LPR spouse will also not be allowed into the consulate. In some cases the consulate will recommend that the spouse/parent attend the IV interview. The U.S. citizen or LPR parent will be required to accompany the alien child.

In cases where the principal beneficiary has adjusted status and the derivatives will be consular processing, the principal can file a Form I-824 with the USCIS. When the principal adjusts, the USCIS will approve the I-824 and forward it to the consulate, which will trigger consular processing for the spouse or children. Alternatively, the principal can send the consulate proof of having adjusted status, thus avoiding having to file an I-824. The consulate will then open a file and notify the derivatives of the IV process.

U.S. citizens who travel abroad and marry have the option of proceeding with an IV application or the nonimmigrant K-3 visa. K-3 visa processing is till faster than IV processing, although the time differential has narrowed. Even if the I-130 has been approved at the service center, sent to the NVC, and forwarded to the consulate, the consulate is still authorized to process the applicant for a K-3 visa. Once the applicant has decided to be processed for an immigrant visa (and possibly been denied for public charge), he or she cannot change and request the K-3 processing.

The USCIS has implemented nationwide a court decision allowing children who entered the United States with the V-2 or V-3 visa, or who obtained that status from the USCIS inside the country, to extend that status through a Form I-539 application after they turn 21. That policy, however, does not apply to children who left the United States before or after aging out, are now over 21, and want to return to the United States. They would be ineligible for a V visa or an extension of their visa.

Mr. Janssen. He started work as the Officer in Charge of the USCIS office in Cd. Juarez in July, succeeding Ben Aguirre who retired in March. His primary responsibility is adjudicating I-601 waiver applications, but he also investigates adoptions and I-30 marriage-based petitions from the Mexican states of Chihuahua and Durango. When he started he inherited a backlog of approximately 1,000 waiver applications. He and an assistant reviewed those cases and culled out the ones that were immediately approveable based on the documentation submitted. For the others he sent a two-page letter reminding applicants of the extreme hardship standard and summarizing the USCIS and BIA interpretation of that requirement. He asked applicants to consider supplementing their waivers with additional documentation or evidence and return that to his office within 30 days. Only applicants whose waiver was pending on August 1st received this request for evidence (RFE) and were afforded this second opportunity; those that were filed after that date will be adjudicated based on the documentation and evidence submitted.

While his predecessor was outspoken in his maintaining an approval rate of about 94 percent for I-601 waivers, Mr. Janssen prefers not to advertise current approval rates. However, he believes that the prior approval rate is unsustainable, based on BIA case law interpreting the extreme hardship standard in the suspension of deportation context. He nevertheless believes the majority of the waivers will be approved if they are well documented.

He encourages applicants not to base the extreme hardship to the qualifying relative on emotional reasons alone. In the letter he stresses that "family separation and financial inconvenience, in and of themselves, do not necessarily constitute extreme hardship." The strongest waiver applications will include evidence of "much more extreme impacts," such as health-related factors. Emotional reasons could also be combined with financial considerations, loss of educational opportunities, familial and community ties in the United States versus those in the home country, long residence here, and other special factors. While extreme hardship to the U.S. citizen or LPR child cannot be considered in unlawful presence or fraud waivers (as opposed to waivers based on criminal convictions), it can increase the hardship to the parent who is left in the United States taking care of the child.

Many of the waiver applications he inherited contained boilerplate declarations of one to two paragraphs that may have been prepared by fly-by-night immigration consultants, including the ones that operate down the street from the consulate. Make sure the extreme hardship is well-documented; if possible include declarations or reports from doctors, hospitals, or psychologists. Don''t just submit repetitive declarations from neighbors, friends, or family members that do not provide additional evidence or otherwise bolster the hardship claim. If the I-601 is submitted with an I-212, the I-601 will be adjudicated first. If that is approved, usually the I-212 will then be approved.

His office is currently experiencing a six- to nine-month delay in adjudicating waivers. You can request that the waiver be expedited based on emergent circumstances, such as health-related factors or military deployment. Contact the USCIS office in Cd. Juarez by telephone at 011-52-656-611-5284 or by fax at 011-52-656-611-0475.

About The Author

Charles Wheeler, Esq. is a senior attorney with Catholic Legal Immigration Network (CLINIC) in San Francisco. Prior to joining CLINIC, Mr. Wheeler directed the National Immigration Law Center in Los Angeles, which serves a similar function. He has been specializing in immigration law and aliens' rights issues for 25 years. He is considered an expert in several aspects of immigration law. He is a graduate of the University of Virginia and the University of Maryland School of Law.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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