In March 2013, USCIS implemented a new program that permits certain immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children) who are physically present in the United States to request a provisional unlawful presence waiver prior to traveling abroad for consular processing of their immigrant visa applications. However, a provisional waiver will not be approved if USCIS has “reason to believe” that the applicant may be inadmissible on grounds other than unlawful presence.  Based on these first five months of adjudication, the American Immigration Lawyers Association (AILA) has recently raised concern that USCIS is taking a very broad approach to the standard “reason to believe,” and has been denying I-601A provisional waivers that follow two clear patterns:

  • Criminal record of arrest or conviction. “Reason to believe” denials are being issued notwithstanding evidence submitted that establishes that either the arrest did not result in a criminal conviction, that the incident was not conduct that would render the foreign national inadmissible, or that the crime for which the individual alien was convicted was not an inadmissible offense.
  • Providing false name, date of birth, or other information at the time of an apprehension for entry without inspection. USCIS is denying the I-601A on the grounds that there is “reason to believe” that the alien knowingly and willfully provided false or materially misleading information while applying for an immigration benefit or while trying to gain admission to the United States. Denials are being issued even though the allegedly false or misleading information was not material, or was not given in connection with a benefit application or application for admission.

Individuals should carefully examine their circumstances and seek guidance from their immigration attorney before applying for a provisional waiver.