USCIS Issues Positive Guidance for Review of Provisional Waivers Filed by Applicants with a Criminal History

Since March 4, 2013, certain immediate relatives of U.S. citizens have been eligible to apply for an I-601A Application for a Provisional Unlawful Presence Waiver with the U.S. Citizenship & Immigration Services (USCIS) prior to going abroad to apply for an immigrant visa at a U.S. Consulate. Prior to the implementation of this new program, these individuals would have to file for a waiver of their unlawful presence only after departing the U.S. for their consular interviews. They typically waited months or sometimes even years for a decision on their waiver, all the while separated from their families. The new I-601A provisional waiver allows certain individuals to apply for their waiver prior to departing the U.S., preventing long periods of separation from their families. For more information on the provisional waiver, check out our previous post discussing the eligibility criteria for an I-601A waiver.

Shortly after the USCIS implemented the new I-601A program, a disturbing trend began to develop, which resulted in the USCIS inappropriately denying many I-601A waiver applications. The regulations require that the individual applying for an I-601A waiver only be inadmissible to the U.S. based on his or her prior unlawful presence. This means that individuals with certain criminal issues are ineligible to apply for the I-601A waiver if those criminal issues make them inadmissible to the U.S. USCIS officers were instructed to deny any I-601A waiver application if there was a ‘reason to believe’ that the applicant may be inadmissible to the U.S. based on a ground of inadmissibility other than unlawful presence. As a result, the USCIS denied any I-601A waiver application where the applicant had any criminal issues, even if those crimes clearly did not make the applicant inadmissible. Immigration attorneys nationwide complained that the USCIS was applying the ‘reason to believe’ standard too broadly and denying I-601A waiver applications without analyzing whether the criminal issues actually made the applicant inadmissible.

Fortunately, on January 24, 2014, the USCIS issued new guidance for reviewing I-601A waiver applications involving applicants with a criminal history. The new guidance states that “USCIS officers should review all evidence in the record, including any evidence submitted by the applicant or the attorney of record” to determine if the applicant’s criminal issues make the applicant inadmissible or fall under one of the exceptions for criminal convictions found in the law (e.g. petty offenses or youthful offender exceptions). If the record demonstrates that the applicant’s criminal issues do not make him or her inadmissible, “then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense” and “[t]he USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful presence waiver, including whether the applicant warrants a favorable exercise of discretion.” This guidance should result in a more appropriate review of I-601A waiver applications for individuals with prior criminal issues.

Please contact an immigration attorney at Minsky, McCormick & Hallagan, P.C. if you or someone you know may benefit from an I-601A provisional waiver, especially if there are criminal issues involved.