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The Provisional Unlawful Presence Waiver 1 Year Later



An interesting law went into effect about a year ago. The provisional unlawful presence waiver provides an "immediate relative" (a child, parent, or spouse) of a U.S. Citizen with a new immigration benefit. If the immediate relative is inadmissible and not eligible to "adjust status" (to get their green card) from within the U.S. due solely to an unlawful entry, they can apply for a waiver of this requirement without having to leave the country first. Prior to the new law, an immediate relative was required to apply for the waiver from abroad. 

Below is a link to the primary form used in these waiver applications:

http://www.uscis.gov/sites/default/files/files/form/i-601a.pdf

One source of frustration for those applying for the new waiver has been the "reason to believe" standard that immigration officers have been instructed to follow. If an officer determines based on the record that there is reason to believe that an applicant may be subject to a ground of inadmissibility other than unlawful presence, such as the ground involving certain criminal convictions, then the officer will deny the request for a provisional unlawful presence waiver.

Not all criminal convictions make a green card applicant inadmissible to the United States. In fact, many minor criminal convictions, such as those for certain traffic violations and petty theft crimes, do not lead to inadmissibility. 

The problem is that during the past year, in many cases immigration officers have denied requests for provisional unlawful presence waivers if an applicant has any criminal history at all. In these cases, if the record contained evidence that an applicant was charged with an offense or convicted of any crime, regardless of whether the crime would make the applicant inadmissible, the officer has denied the request for a provisional unlawful presence waiver.

Fortunately, a new memo was sent out to officers in January of this year to clarify that they should not deny a request for the provisional unlawful presence waiver unless an applicant has been convicted of a crime which would make the applicant inadmissible:
"USCIS officers should review all evidence in the record, including any evidence submitted by the applicant or the attorney of record. If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication, or (2) is not a CIMT under INA section 212(a)(2)(A)(i)(I) that would render the applicant 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. The 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 clarification should make the process for many applicants run more smoothly and lead to increased numbers of approvals.