Starting March 18, 2014, the US
Citizenship and Immigration Services announced plans to reopen I-601A
Provisional Waivers previously denied “solely of a prior criminal offense.” Pursuant
to a USCIS memo published January 24, 2014, USCIS will reopen these cases “on
its own motion.” Applicants who may benefit from reopening of a denied case and
their representatives should receive notice “of this action within 60 days,”
from March 18, 2014.
In January 2013, President Obama
signed an executive order which was enacted on March 4, 2013, providing a
“provisional waiver” of unlawful presence for certain Immigrant Visa
applicants. Applicants over the age of 18 years old who were the beneficiary of
an immediate relative visa petition, married to a United States citizen, and
admissible, but for a period of unlawful presence in the United States, could
apply for a waiver of the bar to admission in the United States and prior to
any applicable consulate interview.
Upon review, USCIS had discretion
to request additional evidence or deny an application if it had “reason to
believe” the applicant was inadmissible to the United States on any other
grounds save unlawful presence. Until July/August 2014, USCIS narrowly applied
the “reason to believe” standard and denied most, if not all, applications
which presented any adverse legal history, including minor criminal offenses
and traffic violations. In most cases USCIS provided no opportunity to the
applicant to provide evidence that these offenses would not render the
applicant inadmissible and no opportunity for appeal. In late summer, upon
petition from the American Immigration Lawyer’s Association and other
advocates, USCIS suspended processing of provisional waivers which presented
evidence of any criminal history.
On January 24, 2014, after much
review, USCIS published field guidance concluding that “it should not find a
reason to believe that the prior criminal offense would render the applicant
inadmissible and deny an I-601A waiver application based on a prior criminal
offense if the criminal offense falls under the petty offense or youthful
offender exceptions or is not considered a crime involving moral turpitude.”
USCIS states that I-601A waiver
applicants, previously denied on the basis of a criminal offense falling within
the above parameters, should receive notice from USCIS within 60 days from
March 18, 2014. Applicants who may benefit from this action may check on-line
at [website] for status or visit www.uscis.gov/provisionalwaiver,
or contact a licensed immigration attorney for assistance.
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