Good News for Provisional Waiver Applicants

In an email sent to the American Immigration Lawyers Association (AILA) yesterday, the U.S. Citizenship and Immigration Services (USCIS) announced an important change in the way they consider and adjudicate applications for a provisional unlawful presence waiver (“I-601A”). Since the launch of the new program, USCIS had been denying applications where it had “reason to believe” that the applicant may be subject to another ground of inadmissibility beside the unlawful presence ground. In practice, this mostly affected applicants with any prior criminal offense.

Not all criminal offenses in fact render an applicant inadmissible– for example, a minor offense that is not considered to be a crime involving moral turpitude or that would fall under the petty offense exception does not trigger inadmissibility. However, USCIS had been blanketly denying applications by anyone with a criminal history without considering whether the criminal offense in fact rendered the person inadmissible. This policy had up until now excluded many applicants with minor offenses like a single shoplifting conviction who were nevertheless admissible as immigrants.

Thankfully, the USCIS has reconsidered its policy and has announced that it will now take the additional step of considering whether a prior criminal offense falls under the petty offense exception or is otherwise not considered a crime involving moral turpitude. Where the prior criminal offense is deemed to not render the applicant inadmissible, USCIS will proceed to adjudicate the I-601A. USCIS has further announced that it will reopen, on its own motion, all prior I-601A applications that it had denied based solely on the existence of a prior criminal offense and it is determined that the criminal offense is a not a ground of inadmissibility, will proceed to adjudicate the I-601A application.

For information about the Provisional Waiver process, check the USCIS website.