TBA Law Blog


Posted by: Christy Gibson on Sep 26, 2013

By Brittany Thomas*

Last year, immigration attorneys all over the country, including the author, waited in anticipation for the Provisional Unlawful Presence Waiver (“Provisional Waiver”) in hopes of common sense reform that would assist families to stay together, but the reform is not living up to all of the expectations.

Traditionally, a relative of an immigrant who entered without inspection filed an I-130 petition on his or her behalf and if approved, it went through NVC processing. Thereafter, the immigrant would leave the country for the immigrant visa interview at his or her home country consulate, be denied due to inadmissibility, and then file for waiver of the inadmissibility bar outside the U.S. With the traditional waiver, immigrants were left outside the U.S. in a sort of purgatory while waiting on a decision from United States Citizenship and Immigration Services (“USCIS”).

In January 2013, USCIS announced it would start accepting Provisional Waiver applications in March. This new Provisional Waiver process allows qualifying visa applicants, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver while remaining in the U.S. If approved, they would have a Provisional Waiver before they leave the U.S. for their immigrant visa interviews with the conditional assurance that they would be allowed to return. This differs from a traditional waiver, which can only be filed once an applicant has been found inadmissible abroad. The new process shortens the time U.S. citizens are separated from their family members while obtaining lawful status. To be eligible for the Provisional Waiver, the immigrant must be the spouse, parent, or minor child of a U.S. citizen and be admissible on all other grounds but for their unlawful presence in the U.S.

When USCIS announced the Provisional Waiver, undocumented immigrants in the U.S. with qualifying relationships immediately became hopeful. The Provisional Waiver is a common sense change to make things easier for U.S. citizens with undocumented relatives. In public informational calls, USCIS indicated that Provisional Waivers would be adjudicated similarly to traditional waivers; however, the adjudication process for Provisional Waivers had not gone as smoothly as advertised.

Waivers that appear to be good, if not model cases, are being denied all over the U.S. The culprit for these surprising denials is the current USCIS standard that requires its officers to deny the Provisional Waiver application if there is a “reason to believe” that an applicant may be inadmissible to the U.S. at the time of the immigrant visa interview, based on another ground of inadmissibility other than unlawful presence. USCIS has not given any further information of how a “reason to believe” standard is measured. Many seemingly eligible immigrants have had their applications denied with lightning speed because of this punitive and nebulous standard, despite the fact that they would not be disqualified under the published standards for the traditional waiver. Some of the reasons why applications are being denied are DUIs, juvenile offenses, presentation of false names, cumulative criminal history, and lack of documentary evidence. Under the “reason to believe” standard,all criminal history is presumed to be a material negative discretionary factor in the case. Any immigrant with a criminal history should proceed with caution when deciding whether to file for a Provisional Waiver.

USCIS officers are providing very little explanation for the denials. The officers are not issuing Requests for More Evidence to allow the immigrant to clarify a potential disqualifying factor. Officers are simply denying the Provisional Waiver applications. If a Provisional Waiver application is denied, there is no opportunity for an administrative appeal, a motion to reopen, or reconsideration of the decision. If denied, the only option is to file a completely new Provisional Waiver application. A new application is no more likely to be successful, unless there is a change in the applicant’s situation from the initial filing, or additional supporting evidence.

Unfortunately, the strict “reason to believe” standard is disheartening for immigrants who would be granted a waiver in their home country. The immigrants do not want to risk leaving the U.S., because they have been told there is a reason to believe they would be denied a traditional waiver application and they would not be allowed to return. USCIS also reserves the right to place any immigrant, whose Provisional Waiver application is denied, in removal (deportation) proceedings, which creates further apprehension against filing a Provision Waiver at all.

It is rumored that USCIS is currently in the process of reconsidering the “reason to believe” standard. Unfortunately, there is no way of knowing if there will be a revised standard or if a revised standard might be more sensible for immigrants and their families. Hopefully, a new standard will be closer to how waivers are reviewed abroad and will reduce the number of qualifying immigrants who are disheartened by a denial from USCIS.

Currently, attorneys face difficult decisions advising clients until a new standard is announced. Potentially life-changing choices must be made regarding applicants with any negative background or lacking substantial evidence.  For now, attorneys should consider waiting to see if USCIS revises the standard before filing any potentially unsound applications.

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*Brittany Thomas is an attorney at Grant, Konvalinka & Harrison, where she is a member of GKH’s immigration practice group, and represents businesses and individuals in the U.S. and around the world with regard to immigration, business and tax issues. Ms. Thomas is a 2012 graduate of University of Tennessee School of Law. She may be reached at 423-933-2731 or bthomas@gkhpc.com.