Contributed by Amber Blasingame, Associate Attorney
On January 24, 2014, the US
Citizenship and Immigration Services posted long-awaited guidance on the application
of the “reason to believe” ineligibility standard for provisional waivers of
unlawful presence. USCIS has agreed that evidence of a criminal record is not
grounds for an automatic rejection or denial of a provisional waiver.
Approval of a provisional waiver
only “forgives” an applicant’s unlawful presence in the United States. If the
only ground of inadmissibility is unlawful presence, then an applicant may
apply for a provisional waiver prior to attending her immigrant visa interview
at a US Consulate outside of the United States.
However, an applicant who may be subject to any other grounds of
inadmissibility, such as certain criminal convictions, is ineligible for a
provisional waiver. Applicants who may be eligible for a waiver of unlawful presence,
but may also need additional waivers, must apply for the waivers at the US
Consulate at the time of the immigrant visa interview and remain outside of the
United States until USCIS adjudicates the waiver applications.
Since the executive order became
effective on March 4, 2013, USCIS has applied a hardline approach and rejected
or denied many applicants for provisional waivers with any criminal record,
minor or otherwise, and even applications with evidence of minor traffic
citations. In almost all cases, USCIS denied these applications without so much
as a Notice of Intent to Deny which would have provided an applicant the
opportunity to prove a prior offense would not subject the applicant “to
grounds of inadmissibility other than unlawful presence at the time of the
immigrant visa interview.”
The agency’s hardline approach on
provisional waivers was almost immediately challenged by immigration legal
practitioners and advocates. Eventually, USCIS suspended adjudication of any
provisional waiver pending with a criminal record to reconsider its approach.
The field guidance issued by US
Citizenship and Immigration Services to examining officers instructs officers
to “review all evidence in the record, including any evidence submitted by the
applicant or the attorney of record,” to determine if an applicant, with or
without a criminal record, may be subject to other grounds of inadmissibility.
If the criminal offense “falls within the ‘petty offense’ or ‘youthful
offender” exception OR “is not a CIMT [Crime Involving Moral Turpitude] . . . ,
then USCIS officers should not find a reason to believe that the individual may
be subject to inadmissibility . . . solely on account of that criminal
offense.”
Posts
