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The I-601A Provisional Waiver “Reason to Believe” Memo—Six Months Later

On March 4, 2013, the Final Rule on Provisional Unlawful Presence Waivers for Certain Immediate Relatives took effect. The new regulation provides a significant benefit to spouses, children and parents of U.S. citizens who are not eligible to adjust their status in the U.S. due to overstay-related inadmissibility grounds. The regulation allows such individuals to apply for provisional unlawful presence waivers while in the United States, whereas previously they could only apply outside of the U.S. and risked lengthy adjudication periods or prolonged separation from family members. The Provisional Waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to receive their waiver and then depart the U.S. for their immigrant visa interview at a U.S. embassy or consulate abroad.

However, since the law went into effect 16 months ago, numerous cases have been denied, sometimes on dubious criminal-related grounds. Below, we will examine the “Reason to Believe” reason for Waiver denials, the new guidance USCIS provided in response to public complaints over the denials, and the results of the new guidance—six months after it was issued.

By way of background, to be eligible for a Provisional Waiver, the individual on whose behalf an immediate family member petition has been approved must, among other requirements: (1) be physically present in the US; (2) have a pending immigrant visa case with the Department of State and paid the visa fees; (3) upon departure from the US, be inadmissible for unlawful presence under INA 212(a)(9)(B)(i); (4) meet the requirements for a waiver under INA 212(a)(9)(B)(v); and (5) not arouse a “Reason to Believe” (“RTB”) that the person has engaged in activity that would cause other inadmissibility—such as criminal acts.

It is the RTB standard with respect to crimes that is at issue. Because USCIS anticipated a significant influx of Provisional Waiver applications, and because analyzing criminal inadmissibility requires a complex and lengthy analysis of criminal records and statutes in differing jurisdictions, the RTB standard was implemented. Officers were instructed that if there is a reason to believe that a person would be inadmissible, the Provisional Waiver would be denied. USCIS had also indicated that RTB was implemented to avoid the heartbreaking experience where an applicant proceeds to their home country with Provisional Waiver approval in-hand only to have their visa denied when the consulate finds an additional ground of inadmissibility.

In the first nine months of the Provisional Waiver, numerous cases were denied under the RTB standard, even though the applicant’s purported crime would not have rendered them inadmissible under the immigration laws. It became clear that the RTB standard was overreaching. For example, individuals denied due to one DUI in their record, or a petty shoplifting or juvenile disturbing the peace conviction were cases that came to our attention, even though none of these offenses would have rendered the offender inadmissible.

Criminal grounds of inadmissibility include, among others, controlled substance violations, convictions for crime involving moral turpitude (“CIMT”), two or more convictions for which the aggregate sentence was 5 years or more, and prostitution. However, if there is a CIMT conviction in an individual’s past, he would not be inadmissible if he falls under recognized exceptions such as the youthful offender exception under INA 212(a)(2)(A)(ii)(I) or the petty offense exception under INA 212(a)(2)(A)(ii)(II).

Under the petty offense exception, the offender is not inadmissible if: (1) he has committed only one crime; (2) the maximum penalty possible for this crime does not exceed one year imprisonment; and (3) the offender was not sentenced to more than 6 months of imprisonment.  Under the youthful offender exception, the person is not inadmissible if: (1) he has committed only one crime; (2) his crime was committed when he was under 18 years of age; and (3) his crime was committed more than 5 years before the date of his application for a visa or admission into the US.

On January 24, 2014, USCIS issued guidance to its officers, in the form of a Policy Memorandum, which has a stated purpose of addressing the “Adjudication of Form I-601A, Application for Provisional Unlawful Presence Waiver in cases involving applicants with criminal history.” The guidance holds that USCIS will no longer deny a provisional waiver application based on RTB if the documentation submitted shows that the applicant’s criminal offense: (1) falls within the petty offense or youthful offender exception; or (2) it is not a CIMT. This update in policy was hailed by the immigration community as a positive step, but as always, we proceeded cautiously. Every Provisional Waiver applicant with any slight criminal history must submit carefully assembled evidence and a legal brief explaining the law and issues.

Typically, Provisional Waiver decisions are issued within about 5-7 months of filing. As six months have transpired since the January 2014 USCIS guidance, we have had several examples of cases that were initially filed or re-filed after the new guidance, and can report positive results in the adjudication cases affected by the January 24th Memorandum. Immigrants with a criminal record consisting of vandalism, trespassing, shoplifting/theft, disturbing the peace, disorderly conduct, DUI and procuring a prostitute have been granted waivers, whereas they would have likely been denied under RTB before the Memorandum.

According to recently released USCIS statistics, as of June 14, 2014, about 70% of cases denied prior to the January 24th Memorandum that have been reopened have either been approved or remain pending with additional evidence requested. Such numbers can be seen as a positive step, and should assuage qualified applicants who are meant to benefit from the Provisional Waiver process–promoting family unity and ameliorating hardship to U.S. citizens–but were discouraged by the earlier application of the RTB standard.

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