On January 24, 2014, USCIS issued guidance on the adjudication of Form I-601A waivers in cases involving applicants with criminal history. To understand the significance of this guidance, let us first review the rules on Form I-601A waivers.
On January 3, 2013, USCIS published the Final Rule on Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, which took effect on March 4, 2013. As a general rule, aliens who apply for immigrant visas abroad but who are inadmissible must file waiver applications after their visa interviews abroad. This means that these aliens would have to spend some time abroad while waiting for the outcome of their waiver applications. The new provisional waiver rule provides a narrow exception.
An alien is eligible to apply for a Form I-601A provisional waiver if he or she: (1) is physically present in the US; (2) is at least 17 years of age at the time of filing; (3) is the beneficiary of an approved immediate relative petition; (4) has a pending immigrant visa case with the Department of State for which the visa processing fees have been paid; (5) upon departure from the US, would be inadmissible for unlawful presence under INA 212(a)(9)(B)(i); (6) meets the requirements for a waiver under INA 212(a)(9)(B)(v); and (7) will depart from the US to obtain an immigrant visa abroad. If USCIS approves the provisional waiver, this waiver does not take effect unless the alien departs from the US and appears for an immigrant visa interview at a US Consulate abroad.
USCIS will deny a provisional waiver application if the alien does not meet the above requirements or the alien: (1) has a pending adjustment of status application; (2) is in removal proceedings unless these proceedings are administratively closed; (3) has been ordered deported, excluded or removed from the US; (4) is subject to the reinstatement of a prior removal; (5) was scheduled for an immigrant visa interview prior to January 3, 2013; or (6) USCIS has reason to believe that the alien may be inadmissible for other grounds of inadmissibility aside from unlawful presence.
This last ground for denial has created some controversy. USCIS has denied provisional waiver applications when applicants have any criminal history on the ground that USCIS has reason to believe that these aliens may be inadmissible for other grounds of inadmissibility. However, not all criminal convictions are grounds for inadmissibility. Criminal grounds for inadmissibility include, among others, convictions for crime involving moral turpitude (CIMT), controlled substance violations, two or more convictions for which the aggregate sentence was 5 years or more, controlled substance trafficking, and prostitution.
However, even if an alien is convicted of a CIMT, he would not be inadmissible if he falls under recognized exceptions such as the youthful offender exception under INA 212(a)(2)(A)(ii)(I) and the petty offense exception under INA 212(a)(2)(A)(ii)(II). Under the youthful offender exception, an alien is not inadmissible if: (1) he has committed only one crime; (2) his crime was committed when he was under 18 years of age; and (3) his crime was committed more than 5 years before the date of his application for a visa or admission into the US. Under the petty offense exception, an alien is not inadmissible if: (1) he has committed only one crime; (2) the maximum penalty possible for this crime does not exceed one year imprisonment; and (3) the alien was not sentenced to more than 6 months of imprisonment.
During the drafting of the provisional waiver rule, there were suggestions that USCIS should not deny a provisional waiver application simply because it has reason to believe that the applicant was convicted of a crime since some crimes are not automatic bars to admission or, upon further review, would not be considered convictions for immigration purposes. These suggestions were not adopted because the goal of the provisional waiver rule was to facilitate the issuance of immigrant visas to immediate relatives who are inadmissible only for unlawful presence. USCIS believed that, if it were required to consider grounds of inadmissibility other than unlawful presence, there would be backlogs in the adjudication of provisional waivers and in turn that would delay the processing of immigrant visas.
USCIS has now changed its position. Under the January 24, 2014 guidance, USCIS will no longer deny a provisional waiver application based on a reason to believe that an applicant may be inadmissible due to a CIMT if the evidence shows that the applicant’s criminal offense: (1) falls within the petty offense or youthful offender exception; or (2) it is not a CIMT. This is a good change in policy that should encourage more eligible aliens to apply. Those who are eligible should take advantage of this favorable policy before USCIS decides to change it again in response to unforeseen problems. However, applicants should not be satisfied with submitting complete evidence and expect USCIS to figure out the applicable exceptions. It is the applicant’s duty to explain clearly why exceptions apply or why the offense is not a CIMT.
