I-601A Provisional Waiver Denials Based on Prior Criminal Offense Being Re-Opened by USCIS

I-601A Provisional Waiver Denials Based on Prior Criminal Offense Being Re-Opened by USCIS

The USCIS will re-open on its own motion, all I-601A waiver applications that were denied prior to January 24, 2014, solely because of a prior criminal offense, in order to determine whether there is reason to believe the prior criminal offense might render the applicant inadmissible.

The full update from the USCIS is available below:

The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in the regulations and warrant a favorable exercise of discretion.  The law provides that USCIS can deny an I-601A waiver application if USCIS has reason to believe that the individual is subject to another ground of inadmissibility, in addition to the unlawful presence ground that is the subject of the I-601A waiver application.

The public asked us: when the possible additional ground of inadmissibility is a prior criminal offense, does the existence of any prior criminal offense trigger the automatic denial of the I-601A waiver application, or must USCIS have reason to believe that the prior criminal offense would actually render the applicant inadmissible?  There are some criminal offenses, such as certain petty offenses for example, that do not serve as a ground of inadmissibility under the governing statutes.

In response, USCIS has determined that it should not find a reason to believe that the prior criminal offense would render the applicant inadmissible and deny an I-601A waiver application based on a prior criminal offense if the criminal offense falls under the petty offense or youthful offender exceptions or is not considered a crime involving moral turpitude. This answer is reflected in USCIS’s January 24, 2014 field guidance.

Starting on March 18, 2014, USCIS will reopen, on its own motion, all I-601A waiver applications that were denied prior to January 24, 2014, solely because of a prior criminal offense, in order to determine whether there is reason to believe the prior criminal offense might render the applicant inadmissible.  USCIS will re-adjudicate the cases where applicants have not been issued an immigrant visa, consistent with the new field guidance.  USCIS will notify applicants (and their legal representatives) of this action within 60 days.  Once the case has been reopened and reviewed, USCIS will continue to process the I-601A waiver application and either approve or deny it or request additional information from the applicant.

USCIS Issues Field Guidance on I-601A Provisional Waiver Applicants with Criminal Arrests or Convictions

USCIS Issues Field Guidance on I-601A Provisional Waiver Applicants with Criminal Arrests or Convictions

On March 4, 2013, the USCIS began a new provisional unlawful presence waiver program for immediate relatives of U.S. citizens 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).

The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all I-601A Provisional Waiver eligibility requirements and warrant a favorable exercise of discretion.

There are several circumstances that may render an individual ineligible for a provisional unlawful presence waiver.  For example, individuals with final orders of exclusion, deportation, or removal; individuals who are currently in removal proceedings that are not administratively closed at the time of filing; and individuals who have a pending application with USCIS for lawful permanent resident status are not eligible to apply for the provisional unlawful presence waiver.  Individuals for whom there is a reason to believe that they may be subject to grounds of inadmissibility other than unlawful presence at the time of the immigrant visa interview with a  Department of State (DOS) consular officer also are ineligible for the provisional unlawful  presence waiver. See 8 CFR 212.7(e) (2013).

If a USCIS officer determines, based on the record, that there is a reason to believe that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of his or her immigrant visa interview with a DOS consular officer, USCIS will deny the request for a provisional unlawful presence waiver. See 8 CFR 212.7(e)(4)(i) (2013).

Since the commencement of the I-601A Provisional Waiver program, the USCIS denied I-601A waiver applications when the applicant had any criminal history.  In these cases, if the record contained evidence that an applicant was charged with an offense or convicted of any crime (other than minor traffic citations such as parking violations, red light/stop sign violations, expired license or registration, or similar offenses), regardless of the  sentence imposed or whether the offense is a Crime Involving Moral Turpitude (CIMT), USCIS denied the I-601A waiver application.

The USCIS has now issued guidance to its officers to review all evidence in the record, including any evidence submitted by the applicant or the attorney of record.

If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication, or (2) is not a Crime Involving Moral Turpitude under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense.

The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful  presence waiver, including whether the applicant warrants a favorable exercise of discretion.

This news has been much-anticipated by potential waiver applicants who have certain convictions such as Driving Under the Influence (DUI) on their record.  Assuming the applicant’s criminal conviction(s) does not trigger a ground of inadmissibility, or their criminal conviction falls under the “petty offense” or “youthful offender” exception, waiver applicants may now proceed with their I-601A Provisional Waiver applications.

Keep in mind that it is extremely important for applicants with criminal conviction(s) in their background to prepare and submit a memorandum, together with their I-601A waiver package, clearly describing why their criminal conviction(s) does not trigger a ground of inadmissibility; or why their criminal conviction falls under the “petty offense” or “youthful offender” exception of INA section 212(a)(2)(A)(ii).

What is a Crime Involving Moral Turpitude and When is the I-601 Waiver Required?

What is a Crime Involving Moral Turpitude and When is the I-601 Waiver Required?

Legal Overview of Crimes Involving Moral Turpitude

Section 212(a)(2)(A) of the Immigration and Nationality Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime … is inadmissible.

There are however three exceptions to the inadmissibility triggered by Section 212(a)(2)(A):

  • Purely political offense:
    • Defined in DOS regulations at 22 CFR 20.41(a)(6).
    • Includes offenses that resulted in a conviction obviously based on fabricated charges or predicated on repressive measures against racial, religious, or political minorities.
  • INA  212(a)(2)(A)(ii)(I) (also referred to as the “Juvenile Offense Exception”):
    • Only 1 CIMT was committed, and
    • The alien was under age 18 at the time, and
    • The CIMT was committed and the alien was released (if confined) more than 5 years before the date of application for a visa, admission, or adjustment of status.
  • INA 212(a)(2)(A)(ii)(II) (also referred to as the “Petty Offense Exception”):
    • Only 1 CIMT was committed, and
    • The maximum penalty possible did not exceed 1 year, and
    • If convicted, the sentence imposed did not exceed 6 months (regardless of the time actually served).

[Read more…]

Petty Offense Exception – When the I-601 Waiver or 212(d)(3) Waiver is Not Required

Petty Offense Exception

Section 212 of the Immigration and Nationality Act [8 U.S.C. § 1182] sets forth classes of aliens who are inadmissible, including aliens who are convicted of certain crimes:

(a) Classes of Aliens Ineligible for Visas or Admission.  Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(2) Criminal and related grounds. –

(A) Conviction of certain crimes. –

(i) In general. -Except as provided in clauses (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or any attempt or conspiracy to commit such a crime…

Section 212(a)(2)(A)(i)(I) thus provides that aliens who have committed a crime involving moral turpitude are inadmissible.

However, Section 212(a)(2)(A)(ii) [§ 1182(a)(2)(A)(ii)] sets forth two exceptions:

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

Section 212(a)(2)(A)(ii) (emphasized by me in bold above) is referred to as the “petty offense exception”.  The practical effect of this exception is that applicants who are convicted of a single crime involving moral turpitude are not deemed inadmissible for a visa or admission into the United States if the single criminal conviction falls within this petty offense exception.

In other words, if Section 212(a)(2)(A)(ii) applies, then the I-601 waiver for intending immigrants (normally required to waive the ground of inadmissibility triggered by a conviction for a crime involving moral turpitude), or 212(d)(3) waiver for non-immigrants, is not needed.

In order to qualify for the petty offense exception, you must provide the actual state criminal statute clearly outlining the nature of the offense and the penalty at the time the offense was committed.  You must also submit the court record showing the final disposition of the case, that should include the charge and the sentence.  A legal memorandum clearly outlining your qualification for the petty offense exception is recommended.

I-601A Provisional Waiver Processing In-Depth & Latest Stats on Approvals

I-601A Provisional Waiver Processing In-Depth

Courtesy of CLINIC, we now have a more in-depth understanding of the internal processing that an I-601A Provisional Waiver goes through after being submitted an applicant. Please find the update by Susan Schreiber and Charles Wheeler below.  I have added highlights in bold to areas that I feel are important to keep in mind when preparing and submitting the I-601 Provisional Extreme Hardship Waiver.

NBC Background

Since March 4, 2013, The National Benefits Center has been responsible for adjudication of I-601A applications for provisional waivers.

Statistics

The NBC has provided the following numbers based on I-601A applications received or adjudicated from March 4 – September 14, 2013:

23,949 applications sent to Lockbox

17,996 applications accepted by Lockbox

5,953 application rejected by the Lockbox

The reasons for rejection could include no applicant signature, no proof of I-130 approval, no proof of Immigrant Visa fee paid, or applicant is under 17.  The number of applications received may include re-filings by applicants whose cases were initially rejected at the Lockbox.

The NBC has 12,098 applications in the pipeline, with approximately 2,300 ready for processing. It is averaging approximately 600 applications/week, so it has about four weeks of applications to adjudicate. With 45 adjudicators currently working these cases, this averages out to each adjudicator handling about 13 applications per week, or about 2.6 per day. Mr. Blackwood noted that adjudicators have other work responsibilities, including time spent in trainings and at meetings.

The NBC has issued the following decisions:

3,497 approvals (59%)

2,292 denials (39%)

103 admin closures (application returned fur various reasons, e.g., filed I-601 instead of I-601A) (2%)

Although applications have been denied for various reasons, the highest number of denials – 1,093, or 48% of all denials – is for “reason to believe.” The second highest number – 937, or 41% of all denials – is for failure to establish establish extreme hardship. Other reasons for denial include abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and applicant subject to existing or final order of removal.

At present, the average time between receipt of an application at the Lockbox and decision issuance is 103 days. The goal is to reduce the adjudication time to 90 days. The NBC adjudicators were working at that pace initially until the “reason to believe” denials became a controversial issue.

[Read more…]

I-601A Provisional Waiver

I601A Waiver

None of my clients have yet been denied on the I-601A Provisional Waiver Applications that I prepared and filed on their behalf. However, the current trend based on I-601A provisional waiver applications filed by others nationally appears to be that the USCIS is denying I-601A waivers when it has “reason to believe” that the applicant may be found inadmissible by a Department of State or consular officer at the time of his/her immigrant visa interview for a reason other than unlawful presence.

The American Immigration Lawyers Association, of which I am a member, is currently working with the USCIS in an attempt to have I-601A provisional waivers adjudicated in a more flexible and meaningful manner.

Unfortunately, the USCIS seems to be denying I-601A provisional waivers in two common situations: when applicants have had encounters with criminal law enforcement authorities in the past that do NOT constitute grounds of inadmissibility under INA Section 212; and when applicants allegedly gave false names, biographic data, or other information to the INS or DHS authorities, where such false information was NOT given in an effort to procure a visa, other documentation, or admission in violation of INA Section 212(a)(6)(C).

My current recommendation as of 08/10/2013 is to be absolutely sure NONE of the situations described below apply to you before you submit your I-601A provisional waiver application.  This means you never had any encounter whatsoever with criminal law enforcement authorities and never submitted any type of false information to the INS or DHS in the past.  Should the USCIS adopt the more flexible and meaningful approach advocated by AILA, this blog and my clients will be updated.

Denials Based on Criminal Acts That Do Not Form the Basis for an Inadmissibility Determination

Numerous reports indicate that USCIS is relying on the “reason to believe” standard to deny applications involving any prior criminal issue, no matter how minor or how long ago the incident took place.  AILA has also received reports of denials where the only offense involved a traffic citation or traffic violation.

Denials Based on Alleged Misrepresentations That Do Not Form the Basis for an Inadmissibility Determination

AILA has also received a number of examples of I-601A waiver applications that were denied based on an allegation that the applicant provided a false name or date of birth when apprehended at the border for attempting to enter without inspection.  Though some of these denials contain limited information specific to the alleged incident (year, border station), most of them are formulaic, and none acknowledge evidence that might have been submitted to explain why the incident does not render the person inadmissible.

USCIS Needlessly Denies Provisional Waiver Applications Where a Meaningful Review of the Evidence Would Reveal No Inadmissibility Concerns Other Than Unlawful Presence

Driving Under the Influence (DUI)

It is well-established that a simple DUI, without more, is not a crime involving moral turpitude and therefore, does not render a person inadmissible. See Matter of Lopez-Meza, 22 I&N Dec. 1188, 1194 (BIA 1999); Murillo-Salmeron v. INS, 327 F.3d 898 (9th Cir. 2003). This position has been acknowledged and cited by the USCIS Administrative Appeals Office in several non-precedent decisions. Moreover, a conviction for an aggravated DUI (based on multiple simple DUIs) under a statute that does not require a culpable mental state is also not a crime involving moral turpitude. Matter of Torres Varela, 23 I&N Dec. 78, 82-86 (BIA 2001).

AILA has received numerous examples of provisional waiver denials where the only incident from the applicant’s past involved a simple DUI conviction.  In many of these cases, the applicant acknowledged the incident on the I-601A form and submitted the record of conviction which revealed no aggravating factors. In at least one case, the conviction was ultimately dismissed and in most cases, the DUI occurred more than five years ago.  However, despite well-documented efforts demonstrating that the conviction would not render the applicant inadmissible, these provisional waiver applications were denied.

The Petty Offense Exception

AILA has also received numerous denials involving minor offenses that would clearly fall under the “petty offense exception” for a single crime involving moral turpitude.  An offense falls under the petty offense exception if (1) the crime was committed when the alien was under age 18, and the crime was committed (and the alien was released from confinement) more than five years before the date of the application; or (2) the maximum penalty possible for the crime did not exceed one year of imprisonment and if convicted, the alien was not sentenced to more than 6 months in prison.

Traffic Violations

Question 29 on Form I-601A seems to indicate that traffic violations are not considered when evaluating eligibility for a provisional waiver.  Yet, AILA has received troubling reports of cases that have been denied where the only offense involved appears to be one or more traffic violations.  Even if such violations could be considered relevant, they will almost always qualify for the petty offense exception.

Allegations of Providing a False Name or Date of Birth When Apprehended After Attempting to Enter without Inspection

AILA has also received many reports of denials based on a “reason to believe” the applicant is inadmissible under INA §212(a)(6)(C) for allegedly providing a false name or date of birth when the applicant was apprehended at the border for attempting to enter without inspection.  While providing a false name in conjunction with the formal inspection and admission process may certainly raise concerns regarding admissibility (for example, presenting a false passport at a port of entry), in most circumstances, simply providing a false name after an arrest for attempting to enter without inspection does not support a finding of inadmissibility under INA §212(a)(6)(C)(i) because it is not made in an attempt to “procure … a visa, other documentation, or admission into the United States” or other benefit under the INA.  Moreover, the Department of State takes the approach that misrepresentations regarding identity are material only if the alien is “inadmissible on the true facts or the misrepresentation tends to cut off a relevant line of inquiry which might have led to a proper finding of ineligibility.”  Providing a false name or date of birth after arrest (in a “catch and release” or “voluntary return” situation) when it has already been determined that the individual is inadmissible is not, by definition “material.”