The I-601A provisional waiver, a cousin to the I-601 Extreme Hardship waiver, was implemented in March 2013 for foreign relatives of US citizens (spouses, children, or parents). It is only applicable to those foreign nationals standing in the US and to those for whom the sole ground of inadmissibility is unlawful presence. Those with a prior deportation, with a criminal offense that makes them inadmissible, who are in removal proceedings that are not administratively closed at time of filing their waiver application, and those who have filed an application for permanent residency are not eligible for the provisional waiver. See previous blog entry, “A Brief Summary on Waivers in Immigration Law,” from September 20, 2013.

Initially, the new regulations provided that an applicant would be eligible if there was “reason to believe” no other inadmissibility offenses existed. Thousands of applicants applied who may have had criminal offenses or other offenses that did NOT make them inadmissible usually with clarification from the facts and the law as laid out by the attorney. Examples would be offenses that fit within petty offense exception or crimes that occurred when the applicant was a juvenile, which may not count as a “conviction.” USCIS decided that it could not make the “reason to believe” determination because admissibility was essentially only a decision to made at the Immigrant Visa interview by US Department of State. As such, USCIS began to deny I601A applications where the foreign national had ANY type of criminal offense.

On January 24, 2014, USCIS changed its policy, stating that all evidence sent in by the applicant would be reviewed and that those with criminal infractions may still be eligible for the waiver. All evidence and information WILL be reviewed by USCIS to make the determination.

Specifically, USCIS stated:

“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 (Crime Involving Moral Turpitude) 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 is a big victory for foreign national applicants who are otherwise eligible for the provisional waiver, but perhaps had criminal convictions. Cases denied previously on grounds of criminal convictions (not necessarily inadmissible offenses) have the option to be reopened, and ongoing cases will be reviewed under this new policy position.

Please call Boulder attorney, Catherine Brown at 303-322-2117 if you were denied a provisional waiver due to such problems or if you have criminal or other complicating issues and are applying for a provisional I-601A waiver.