In January 2013 DHS issued a new process, the “provisional waiver,” that allows certain spouses, children, and parents of U.S. citizens to apply for waivers of unlawful presence while they are in the United States. What the provisional waiver does, among other things, is shorten the amount of time that the relative must spend abroad to complete the immigrant visa waiver process.
Since the provisional waiver is so new, immigration lawyers nationwide are trying to determine how USCIS is adjudicating these cases, and what trends currently exist. One trend that currently exists, and that we are hoping will change, is the denial of any applications where the person has a criminal history.
USCIS reviews and adjudicates applications for the provisional waiver. If an applicant’s provisional waiver is granted, the applicant must still attend a visa interview at a U.S. consulate abroad. The consular officer determines whether the applicant is entitled to an immigrant visa.
We have learned that USCIS is denying applications for provisional waivers where the USCIS officer has a “reason to believe” that the consular officer abroad would find the applicant “inadmissible” to the United States. A person is “inadmissible” within the meaning of the immigration laws if he, for example, has been convicted of certain crimes. However, not all criminal convictions render a person inadmissible.
Despite this distinction between crimes that render a person inadmissible and crimes that do not, a disturbing trend has developed. USCIS officers deny provisional waiver applications where the applicant has any criminal history—even a criminal history that would not result in a finding of inadmissibility. For example, having a conviction for DWI should not render a person inadmissible. However, there have been reports of USCIS officers denying provisional waiver applications because the applicant has been convicted of DWI.
We are hoping that this trend will die down as USCIS becomes more comfortable in adjudicating these applications. If a person with any criminal history is interested in applying for the provisional waiver, we would recommend retaining an immigration attorney to prepare and file the application. The attorney can attach an addendum or a cover letter to the application explaining why the applicant’s negligible criminal history would not result in a finding of inadmissibility.
The Verdin Law Firm will continue to provide other updates on the provisional waiver as they arise.
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