Provisional Waiver Update: USCIS Elaborates on How it Will Determine Criminal and Other Issues

On April 11, 2013 the American Immigration Lawyers Association (AILA) representatives met with USCIS on a variety of topics including the I-601A provisional waiver.

AILA inquired into how USCIS was going to make the decision if disqualifying criminal issues or other issues that prevented a person from obtaining a green card – what are known as “admissibility issues” – other than the unlawful presence bar – were going to be determined by USCIS. For example, a crime may or may not qualify as a “crime of moral turpitude,” which is an inadmissible offense. Normally an applicant/attorney would argue at the Visa Interview the law supporting that it would NOT trigger the offense. If one files a provisional waiver, what will USCIS do with this situation?

USCIS stated that it will review the criminal background check conducted through the biometrics appointment. If the results of the background check give USCIS “reason to believe” that a Department of State consular officer would find that the individual is inadmissible on grounds other than unlawful presence, USCIS will deny the application.

AILA then asked if a provisional waiver case would be automatically denied if a criminal issue arose.
USCIS responded, “Since the Department of State consular officer will ultimately determine whether an individual is admissible to the United States, USCIS will not review analyze or consider evidence to determine if another ground of inadmissibility exists. USCIS will only find a “reason to believe” that a DOS consular officer may find the individual inadmissible based on his or her criminal history.”

This is an interesting and disconcerting response. No they won’t analyze arguments or evidence to make a determination of criminal or misrepresentation issues – which are often factually based. Nevertheless, they must still “analyze” something to make their “reason to believe” conclusion. This analysis will be based merely on the criminal background check and nothing else. “Reason to believe” is a vague definition that gives USCIS wide latitude to make decisions. If there is anything in the background check – prior removals, criminal charges or convictions that could possibly be construed as inadmissible problems, then the provisional waiver will be denied under this “reason to believe” standard.

The bottom line is that you should speak with a knowledgeable immigration lawyer like Catherine Brown about your I601 provisional waiver if you have any criminal issues, prior visa or entry denials based on misrepresentation, and any issues with being “picked up” by ICE or stopped at the border and returned or what is known as expedited removal. These may be determined as “reason to believe” grounds that make one ineligible for a provisional waiver. Call us at 303-322-2117 for a consultation.

 

 

2 Comments

Pepe

Good evening, this was a great question to ask. I was also wondering if anyone happened to ask what the time frame for approval of the I601a is. USCIS.gov does not even show the form on any of the field offices, so it is a little concerning to think that they are not anywhere near approving any applications yet.

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admin

It took them about 5 months to get the Deferred Action new for I821D on the processing time system so I would anticipate the same amount of time for getting the new form I601A on the USCIS processing time system. Right now taking about 3-4 months.

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