I-601A Provisional Waivers a Tough Sell to USCIS

At the beginning of this year, USCIS was excited to announce a new program aimed at keeping immigrant families united in the U.S. The program, “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives” allowed certain immigrants (spouses, children and parents of U.S. citizens) who had accrued more than 180 days of unlawful presence in the U.S. to apply for waivers of their unlawful presence with USCIS, rather applying after they departed for their immigrant visa interviews with the Department of State.

The benefit of applying for a provisional waiver was getting a preemptive decision on the waiver, allowing many immigrant visa applicants a chance to plan their trips abroad, in case they might be away from their U.S. family for a prolonged period of time.

The risk of applying for the provisional waiver with USCIS though, has proven to be fairly high ever since USCIS began accepting applications on March 4, 2013.

Unlike the Deferred Action for Childhood Arrivals (DACA) program, USCIS has not released any processing data (i.e.: approval, denial, number of applications received) on the Provisional Waiver Program. The denial and approval rates, so far, are unknown, but anecdotal evidence from many licensed (and experienced) immigration practitioners abound.

TECHNICAL DENIALS

It appears USCIS has been denying Provisional Waiver applications, without first issuing requests for evidence (RFEs), on grounds unrelated to whether the applicant’s separation from the U.S. family member(s) would cause an extreme hardship to the U.S. family member. Officers are providing numerous other reasons for denying a provisional waiver application, including when USCIS “has reason to believe” the applicant might be subject to another ground of inadmissibility under the INA.

The challenge with “other grounds of inadmissibility” under the INA is that it requires USCIS Officers to review the circumstances of each application, and then make a prima facie legal determination. In its letter to USCIS Director, the Catholic Legal Immigration Network, Inc. (CLINIC) voiced concern over this process:

Understanding the elements of the various grounds of inadmissibility is the first step in evaluating whether there is reason to believe that the applicant may be inadmissible on another ground. For example, a criminal conviction in and of itself may or may not constitute a ground of inadmissibility. … [T]he conviction must be for a statutory offense that involves moral turpitude.”

One example of a denial, as documented by CLINIC, was an applicant who had been convicted of operating a vehicle without a license. In the denial letter, USCIS stated “You have a criminal history that includes a conviction for at least one crime.” Yet, a criminal conviction by itself is not enough to bar an applicant from being admitted to this country. The criminal conviction, according to the INA, must fall under a corresponding ground of inadmissibility.

Another often cited example is when applicants are alleged to have provided contradictory statements to past immigration officers when stopped at the border. While the issue of whether the information provided to officers at that time constitute a “material misrepresentation” or not, which requires legal analysis, applicants must also overcome instances where the record is entirely inaccurate. Some applicants are contesting the accuracy of these transcripts, being made aware of its inaccuracy only after having received a denial of their provisional waiver application.

NO APPEALS PROCESS

At a total government filing cost of $670, the provisional waiver application (Form I-601A) is no drop in the bucket. When factoring in additional costs to obtain supporting documentation (such as medical and/or mental health records, exams and/or assessments) as well as any legal fees, the provisional waiver application process can be an expensive venture for any family.

As one attorney put it, it looks to be another “bait and switch”, “poorly functioning USCIS-run nightmare.” Upon closer scrutiny though, it’s hard not to agree with this sentiment. Were an applicant’s provisional waiver application adjudicated on its substantive merits, then a foreclosure of the appeals process after a denial from USCIS is par for the course. However, where USCIS denies on technical grounds (particularly relying on “derogatory information” that an applicant is neither aware or had had the opportunity to rebut) seems fundamentally unfair, particularly when USICS had just accepted the applicants filing fees without conducting a thorough, well-trained review of the application. In any regular business setting, customers would be requesting a refund!

THE TAKEAWAY

Until USCIS provides improved training on provisional waivers to its adjudicating officers, USCIS may see a significant decline in provisional waiver applications.

In the meantime, practitioners should be very cautious when consulting with potential provisional waiver clients. For AILA members, the discussions in the Message Center regarding Provisional Waivers give practitioners a good sense of the current adjudicatory landscape from the past five months. One attorney I recent spoke with went as far as only accepting the strongest cases under this current climate.

This program has such admirable intentions. Let’s see if USCIS can turn it around to truly help families remain united!