August 13, 2013
Minsky, McCormick & Hallagan
The I-601A, Application for Provisional Unlawful Presence Waiver, allows certain eligible individuals to apply for a waiver in the United States prior to departing for an immigrant visa interview at a U.S. embassy or consulate abroad. This differs from a traditional waiver, which can only be filed once an applicant has been found inadmissible after leaving the U.S. to apply for an immigrant visa at a consulate abroad. In such scenarios, applicants find themselves stuck abroad while waiting for approval of the waiver. The Provisional Waiver provides applicants a way to potentially bypass such situations. To be eligible, individuals must be admissible on all other grounds but for their unlawful presence. For more information about the Provisional Waiver and eligibility, please read USCIS Publishes Final Rule on Provisional Waivers for Unlawful Presence.
The I-601A Provisional Waiver application has brought hope to many because it can significantly reduce the length of time U.S. citizens will be separated from immediate relatives who consular process abroad. Unfortunately, the adjudication process for Provisional Waivers is unclear and has not brought all of the solutions immigration practitioners initially anticipated. Two main concerns with the adjudication of Provisional Waivers include: (1) waiver denials based on a ‘reason to believe’ that the applicant is inadmissible to the U.S. even if no crime of moral turpitude has been committed and (2) boilerplate requests for evidence (RFEs)—form replies that don’t address any specific facts of the case or provide any analysis—sent by the National Benefits Center (NBC) in response to I-601A Provisional Waiver applications.
The current standard under the regulations requires U.S. Citizenship and Immigration Services (USCIS) officers to deny any Provisional Waiver application if there is a ‘reason to believe’ that an applicant may be inadmissible to the U.S. at the time of his/her immigrant visa interview based on another ground of inadmissibility other than unlawful presence [8 C.F.R. § 212.7 and USCIS Q&A, April 11, 2013]. Unfortunately there is no indication of how a ‘reason to believe’ standard is measured. As USCIS has begun issuing decisions, applicants who are admissible (but for their unlawful presence) have been denied based on this ‘reason to believe‘ ground. Attorneys and applicants allege that this standard is being too broadly applied to cases where applicants are clearly not inadmissible on additional grounds.
Generally, once USCIS receives a Provisional Waiver application, it is forwarded to the National Benefits Center (NBC) for adjudication. The NBC then schedules the applicant for a biometrics appointment. The adjudicator will then review the application, supporting documents, and results of the background check. The USCIS Questions and Answers clearly state that if at that time the “USCIS officer has a reason to believe that a Department of State (DOS) consular officer would find that the individual is inadmissible on grounds other than unlawful presence, USCIS will deny the application.” Based on this statement, USCIS has denied a waiver application where the applicant was convicted of a misdemeanor DUI and did not receive any jail time.
Similarly, any criminal act, even if the DOS typically would not consider it an inadmissibility issue, may lead to USCIS denial of a Provisional Waiver application. For example, many Provisional Waiver applications have been denied where immigration records reveal that the applicant provided a false name, date of birth, or other information when apprehended at a border or other port of entry. The basis for denial has been the immigration officer’s ‘reason to believe’ that the alien knowingly and willfully provided false or materially misleading information while applying for an immigration benefit or while trying to gain admission to the U.S. Unfortunately, USCIS officers won’t consider any additional documentation from attorneys countering the inadmissibility issue. If a USCIS officer ‘believes’ the particular ‘hit’ from a background check may pose an inadmissibility question, the officer can simply deny the Provisional Waiver application without providing the attorney or applicant an opportunity to present evidence challenging the basis for the decision.
A second troubling trend in the adjudication of Provisional Waivers is the boilerplate requests for evidence (RFE) that USCIS often issues in response to Provisional Waiver applications. There have been reports that the NBC issues RFEs either summarizing basic eligibility criteria and/or asking for supporting documents proving hardship—evidence the applicant’s attorney has already submitted. The RFE often does not specify which documents have already been submitted with the application and which are still missing. This has left many applicants confused about whether their applications were thoroughly reviewed by officers. An additional concern is a recent USCIS policy memo that gives applicants only 30 days to respond to an RFE issued for a I-601A Provisional Waiver application, rather than the normal 84 days. This does not leave much time for an applicant to request necessary documents or translations from his or her country of origin [USCIS Policy Memorandum, March 1, 2013]. Please keep in mind that lack of response or incomplete response to an RFE may result in a denial of the Provisional Waiver application.
USCIS clearly provides that if a Provisional Waiver application is denied, the applicant cannot file an administrative appeal, file a motion to reopen, or seek reconsideration of the decision. An applicant may, however, file a new Provisional Waiver application—after again paying the required application fees—if there is a change in the applicant’s situation. The new filing should include additional evidence that a U.S. citizen spouse, child, or parent of the applicant will suffer as a result of the waiver’s denial.
Please speak with an immigration attorney about a Provisional Waiver if you have been unlawfully present in the U.S. You should be sure to disclose any criminal activities you have been involved in (even if you were not arrested), any prior entry denials, or other potential issues that could make you ineligible for a Provisional Waiver. In the case of a denial of your Provisional Waiver application, you may also qualify for other forms of relief, such as Deferred Action for Childhood Arrivals (DACA) or the traditional waiver process that permits filing of a waiver application following an interview at a consulate or embassy abroad. Please seek a qualified attorney’s advice to help you to assess which immigration benefit would be appropriate in your situation.