Could an I-601 Waiver be Granted on the Basis of "Public Interest" Alone? Yes, it could. (April 2021)

May 02, 2021

In April 2021, our office successfully assisted a client obtaining an approval of his I-601 Waiver Application just 4 months after we filed the application. Our client is a beneficiary of an approved employment-based petition from a major U.S. technology company. Client was seeking to adjust his status from H1B to Permanent Residency. Client previously joined Chinese Communist Party as a student and his membership was terminated over 10 years prior. Our client has no belief or convictions of communism.

Pursuant to Immigration laws and regulations, past membership of a totalitarian party, such as the Communist Party, results in an applicant being inadmissible to the U.S. and ineligible to receive permanent residency. USCIS routinely issues Request for Evidence ("RFE") for an approval of I-601 Waiver application, Notice of Intent to Deny, and Denial Decision. This results in additional delays to clients seeking to adjust their status in the U.S.

At the time of filing the I-485 green card application, our client's Party membership was terminated over 10 years before the date of filing the application. Thus, client was eligible for the Five Year Exception of Past Membership, and should not have needed a submission of I-601 Waiver form. Unfortunately, client's employment based counsel was unable to successfully persuade USCIS to accept his Exception of Past Membership argument. Hence, client was issued an RFE which USCIS rejected client's claim that his membership was terminated 10 years prior, and required that our client to have an approval of his I-601 Waiver.

Our client then sought the assistance of attorney Nguyen D. Luu in exploring his legal options. Client was very concerned because his employment counsel advised him that he was not eligible to file the I-601 Waiver application due to the lack of qualifying relative.

When reading the law correctly, our client could also be eligible for the I-601 Waiver approval if his admission is in the public interest. He does not need a qualifying relative. Our office submitted a substantive legal memo and supporting documents to establish that our client meets the requirements for Relief for Non-meaningful Association, Relief for Non-voluntary Membership, Relief for Past-Membership, and Waiver for Public Interest. We are pleased that we were able to obtain client's I-601 Waiver approval based on the Public Interest argument in just 4 months after filing without any additional RFE.

Conclusion: If you are applying for adjustment of status and you were a member of the Communist Party, you should be aware that USCIS is applying strict enforcement policy on finding of inadmissibility. Further, it appears that USCIS is increasingly refused to accept applicants' claims of exceptions to inadmissibility. Specifically, in this instance, our client submitted a one page declaration based on a template provided by his employment based counsel. USCIS nevertheless still found him inadmissible even though his membership was terminated over 10 years before.

It is highly advisable that you submit a well-drafted persuasive declaration, legal brief, and supporting document to establish your eligibility to the exceptions at the initial filing of your I-485 application. Failure to do so might increase your risk of receiving a Request for Evidence, Notice of Intent to Deny, or even a Denial Decision, which might cause delays and complications to your filing.

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