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Increased Provisional Unlawful Presence Waiver Denials Based on the “Reason to Believe” Standard

Recently there has been an increase in denials for the Provisional Unlawful Presence Waiver based on the “Reason to Believe” standard that USCIS officers are implementing when adjudicating the case. To understand the importance of this new standard, there are a few facts to understand regarding the Provisional Hardship Waiver.

The Provisional Unlawful Presence Waiver was implemented so that those who were in the U.S. already and were seeking this waiver so they could legally adjust their status in the U.S. would not have to be separated from their family members for too long. In order to qualify for the Provisional Unlawful Presence Waiver, there are several eligibility requirements one must meet in order for it to be granted. These requirements are as follows:
– Be 17 years of age or older.

– Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.

– Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

– Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.

– Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.

– Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.

– Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.

– And Meet all other requirements for the provisional unlawful presence waiver.

The key requirement here is the last requirement to qualify for a provisional unlawful presence waiver. The other requirements include “you are not eligible for a provisional unlawful presence waiver if you are subject to one or more grounds of inadmissibility other than unlawful presence.” This point is critical in determining whether a hardship waiver should be filed based on other grounds of inadmissibility or that the provisional unlawful presence waiver applies in a person’s case. Recently, there have been two clear patterns for why no Requests for Evidence or Notice of Intent to Deny have been issued when these waivers have been denied. The two clear patterns are as follows:
– Where the waiver applicant has a criminal record of arrest or conviction, USCIS is denying the I-601A on the grounds that there is “reason to believe” that the applicant may be inadmissible on grounds other than unlawful presence. Denials are being issued notwithstanding evidence submitted to establish that either the arrest did not result in a criminal conviction or that the incident was not conduct that would render the alien inadmissible, or that the crime for which the alien was convicted was not an inadmissible offense.

– Where immigration records reveal that the waiver applicant had provided a 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 U.S. 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.

Because individuals and attorneys are not given a chance to explain these issues to USCIS and help them determine whether these issues are grounds for denying a provisional unlawful presence waiver, more and more of these cases are simply being denied. While the American Immigration Lawyers Association is taking up the issue with USCIS, it is important to provide a thorough record in the waiver of any other issues that may be grounds for denial so that if it is clear that the only consideration is unlawful presence, then the officer can approve the waiver. We will provide an update on whether USCIS continues to use this “Reason to Believe” standard as they continue making decisions on Provisional Unlawful Presence Waivers.