This generally happens when USCIS classifies a conviction a certain way or finds something in the applicant’s file that causes concern. The issue may not have even been discussed at the interview, but suddenly USCIS is worried about it.
My problem with this is that it happens after an interview when the attorney doesn’t have a chance to argue another viewpoint. The request for a waiver comes in the mail with the conclusion already made that the client needs a waiver.
What if I disagree with that conclusion, though?
There are three options for how to respond to a Request for Evidence that requests an I-601 waiver. I can:
- File an I-601 waiver, essentially admitting to the ground of inadmissibility that USCIS alleges. The client has to pay the government filing fees and my legal fees, which together can total several thousands of dollars.
- Respond to the Request for Evidence with a legal argument saying that I disagree with USCIS and that my client does not need a waiver. However, if USCIS does not agree with my legal argument, they could deny my client’s green card case because I failed to file the I‑601 waiver that they requested.
As it stands now, USCIS will only issue one Request for Evidence on a case and if you don’t provide them everything they want in your response, that’s it – you do not get a second chance to respond.
- Respond to the Request for Evidence with both the legal argument that I don’t think a waiver is necessary, but still file a waiver to be safe and to ensure that if my legal argument fails that my client will be protected.
The client will still need to pay all of the fees, but it is the safest route.
I would like to see the second option expanded to give advocates a chance to present legal arguments to USCIS as to why a waiver should not be required.
If, after reviewing the legal arguments, USCIS still wants a waiver, they should provide clients with an opportunity to submit the waiver instead of denying the case.
In my practice, I work with clients from all kinds of backgrounds. I have low-income clients who cannot afford to spend thousands just to be safe. I also have clients who have that luxury and would gladly file a waiver – even if they felt it wasn’t necessary, just to speed up the adjudication.
However, justice shouldn’t be about having money. It should be about having the opportunity to have your story heard.
Just because USCIS asks for an I-601 waiver doesn’t mean you have to submit one. You should talk with an experienced attorney about the facts of your case to ensure that what USCIS alleges is correct. If you need a waiver, don’t hesitate to file one, but you also don’t have to blindly accept what USCIS states in a Request for Evidence.