USCIS Reopening Previously Denied I-601A Provisional Waivers

Contributed by Amber Blasingame, Associate Attorney

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.