Just last week, USCIS quietly issued a Field Guidance Memo providing clarity and guidance to USCIS personnel on “reason to believe” issues and how they affect adjudication of Provisional Unlawful Presence Waivers.
What is the Provisional Unlawful Presence Waiver?
On March 4 of 2013, USCIS began implementing a change in procedure that allowed for adjudication of unlawful presence waivers here in the United States. Such waivers would be “provisional” because they would be filed and decided here in the US before a consular interview is scheduled abroad for the immigrant applicant. The process entails the applicant being able to demonstrate that his/her United States parent(s) or spouse would suffer extreme hardship. Naturally, if the waiver was not approved, a consular interview would not be scheduled because that would defeat the purpose of the program since any departure would trigger the unlawful presence bar. However, if the waiver was approved, an interview would be scheduled abroad, the applicant would appear and presumably be able to return since the unlawful presence bar issue had already been disposed.
There are circumstances that disqualify an applicant from the provisional waiver program. The field guidance memo cites, for example, the following people as being ineligible: individuals with final orders of exclusion, deportation, or removal; individuals who are currently in removal proceedings that are not administratively closed at the time of filing; and individuals who have a pending application with USCIS for lawful permanent resident status. Additionally, individuals “for whom there is a reason to believe [emphasis mine] that they may be subject to grounds of inadmissibility other than unlawful presence…are also ineligible.”
The problem that attorneys and applicants have been seeing, lately, is that many waiver applications were being denied under this “reason to believe” clause. As the guidance itself confirms, many cases were being denied where the applicant wasn’t necessarily convicted of crimes involving moral turpitude (CIMT). In other words, many applicants who were charged with or convicted of criminal offenses were being rejected without regard to the type of sentence imposed or whether the crime is a CIMT. This potentially conflicts with certain provisions within the Immigration and Nationality Act (INA) that allow for exceptions to charges of inadmissibility such as the “petty offense exception.”
What does the Field Guidance Say?
In a welcome change, USCIS now directs its officers to adhere to a more liberal implementation of the policy. Officers are instructed to review all the evidence in the record. Now, should the applicant’s offense:
1) fall within the “petty offense” or “youthful offender” exception, or
2) is not a CIMT that would render the applicant inadmissible
officers are instructed should not find a reason to believe that the individual will be subject to inadmissibility at the time of the interview based solely on the offense(s). The guidance instructs “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.”
The practical import of this is that now many cases that would ordinarily be stymied because of officer questions regarding the legal significance of certain criminal offenses should hopefully be allowed to continue. Of course, questions and problems will always remain: what offenses are CIMTs? And which are not? Minor traffic offenses supposedly don’t come into the equation, but what is minor? How is Driving While Suspended to be interpreted? Unfortunately, immigration will never be as simple as some misguided portion of the population thinks. Just like tax law, it is mind-bogglingly complex and sophisticated.
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