USCIS Announces: Evidence of a Criminal Record is Not Automatic Grounds for Denial of A Provisional Waiver

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.”