Updates on Provisional Unlawful Presence Waivers I-601A – Criminal History Analysis

By Ekaterina Powell, Esq.

It’s been almost a year since the procedure for Provisional Unlawful Presence Waiver became effective. For all this time, USCIS has routinely denied cases where there was a reason to believe that the applicant may be subject to a ground of inadmissibility other than unlawful presence.

Thus, if USCIS believed the applicant may have a criminal, national security, health-related, misrepresentation, or another ground of inadmissibility, it denied the provisional waiver application and did not look further into the extreme hardship analysis.

Unfortunately, this practice has been applied by USCIS across the board to all cases even if it was evident that the applicant fell under one of the exceptions to inadmissibility, for example a criminal offense exception. Indeed, USCIS denied provisional waivers if the record suggested that the 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.

We are happy to announce that USCIS has revised its adjudications policy and has issued field guidance to adjudicating officers explaining how to treat provisional waivers if the applicant has any criminal history.

New USCIS Guidance – Exceptions for Certain Criminal Offenses

USCIS has instructed its officers to review the entire evidence in the record and to continue adjudicating the provisional waiver case on the merits if the applicant’s criminal offense is under one of the following exceptions:

  • Falls under “youthful offender” exception under INA section 212(a)(2)(A)(ii)(I) – this exception has 2 parts: 1) the crime was committed when the alien was under 18 years of age, and 2) the alien both committed the crime and was released from detention more than 5 years before the date of application for a visa or for admission to the United States. [there may be exceptions to this general rule]
  • Falls within the “petty offense” exception under INA section 212(a)(2)(A)(ii)(II) – this exception applies if the following is met: 1) the maximum penalty possible for the crime of which the alien was convicted or admitted to did not exceed imprisonment for one year, and 2) if the alien was sentenced to a term of imprisonment of no more than six months, regardless of how much time the convicted alien actually served.
  • The offense is not a CIMT under INA 212(a)(2)(A)(i)(I) – there is no clear definition or a list of crimes that fall under CIMT. However, generally, the term “moral turpitude” has been held to involve acts demonstrating “baseness, vileness, and depravity” on the part of the perpetrator. Crimes that have fraud as an element are considered to involve moral turpitude. In addition, CIMTs generally involve crimes of violence involving intent. When analyzing whether a particular crime falls under CIMT, USCIS looks at the language of the criminal statute and not to the underlying conduct of the alien.

Thus, if the applicant was convicted of a crime that falls under one of the above exceptions, USCIS will process such provisional waiver application and will determine if the applicant meets meets other requirements for the waiver and warrants a favorable exercise of discretion.

Even though the new guidance covers only very limited criminal exceptions to the ineligibility for a provisional waiver, it is a positive change in USCIS policies and we hope it will add consistency in the adjudication process.

If you need help analyzing whether you can file a Provisional Unlawful Presence Waiver, please contact our office to schedule a consultation.