USCIS Offers Field Guidance on Provisional Unlawful Presence Waivers - Articles

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Posted by: Christy Gibson on Mar 25, 2014

Raquel Bellamy*

One of the most difficult experiences of an intending immigrant is the process of waiting for an unlawful presence waiver. Until March 3, 2013, an applicant who did not qualify for adjustment of status here in the United States was forced to return to his/her home country before applying for an unlawful presence waiver.  This often resulted in the separation of U.S. citizens from their immediate relatives for one or more years. In an effort to “shorten [the] wait time,” U.S. Citizenship and Immigration Services (USCIS) introduced a new “provisional unlawful presence waiver program” for certain qualifying individuals.[i]

Under the provisional unlawful presence waiver program, qualifying immigrant visa applicants are permitted to apply for a waiver in the United States prior to traveling to the U.S. embassy or consulate in their home countries to attend immigrant visa interviews.

Eligibility Requirements

Eligibility requirements may be found in 8 CFR 212.7(e) and are also listed on the instructions document for Form I-601A.[ii] It is important to note that this waiver only applies to applicants whose only ground of inadmissibility is unlawful presence in the United States under section 212(a)(9)(B)(i)(I) and (II) of the Immigration and Nationality Act (INA). In short, applicants must be 17 years of age or older, be an immediate relative of a U.S. citizen, have an approved Form I-130, have a pending immigrant visa case with Department of State (DOS), and be able to prove that refusal of admission to the U.S. would cause extreme hardship to their U.S. citizen spouse or parent.[iii]  Applicants must also be physically present in the United States.

Those applicants who were scheduled for an immigrant visa interview by DOS before January 3, 2013 are disqualified.  Those applicants who are currently in removal proceedings or who have a final order of deportation are also disqualified.  Criminal history may also impact eligibility.

Field Guidance

On January 24, 2014, the USCIS issued field guidance pertaining to applicants for provisional unlawful presence waivers.[iv] This guidance was limited to adjudication of Form I-601A in cases involving applicants with criminal history. The memorandum addressed various circumstances in which an applicant would be deemed ineligible for a provisional unlawful presence waiver, some of which are discussed above.[v]

In practice, the USCIS has denied thousands of applications for the provisional unlawful presence waiver stating there was “reason to believe that an applicant may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(i) at the time of the immigrant visa interview.  Immigration attorneys as well as pro se applicants have reported to the USCIS Ombudsman’s Office that in many of these cases, the criminal history involved fell under the exception for “petty offenses” and “youthful offenders.” It is arguable that many cases were denied routinely, without adjudication of whether or not the conduct involved was classified as a crime of moral turpitude (CIMT) under INA section 212(a)(A)(i)(I). The “reason to believe” standard for denial of I-601 petitions appeared to be the most controversial by far.

Though the Field Guidance affirmatively instructs USCIS officers to consider whether evidence in the record demonstrates a criminal offense falls within the “petty offense” or “youthful offender” exceptions, practitioners are left with more questions than answers. Instead of routinely denying petitions based on “reason to believe,” will USCIS actually adjudicate whether there are other grounds for inadmissibility? Will USCIS begin issuing Requests for Evidence (RFEs) in cases where the evidence in the record does not adequately address the question of moral turpitude?

Luckily, on March 18, 2014, the USCIS reopened cases, on its own motion, for all I-601A waiver requests that were denied before January 24, 2014, solely because of a prior criminal offense. Now, the USCIS will re-determine whether there is reason to believe the prior offense might make the applicant inadmissible. Hopefully, this development will lead to more provisional waivers being approved.


*Raquel Bellamy is an attorney at Branstetter, Stranch & Jennings in Nashville, Tennessee. Ms. Bellamy is a graduate of Vanderbilt School of Law. She may be reached at or (615) 254-8801.



[iii] Many find it ironic that USCIS will consider hardship to the applicant’s U.S. citizen spouse or parent, but not to his/her USC child. 


[v] Ibid.