USCIS Field Guidance on Provisional Waivers

The new law on provisional waivers

In March 2013, USCIS implemented a new law called provisional waiver of unlawful presence. The new law is intended to help undocumented spouses of U.S. citizens to apply for and receive a lawful permanent resident status. An immigrant who entered the U.S. illegally and married a U.S. citizen must show that the U.S. citizen spouse will suffer extreme hardship if the immigrant is denied status or gets removed from the U.S. If the permanent resident status is indeed acquired, then they may now legally work. In some cases this is a gray area for even the employer, so being well informed on your rights can help you.

The state of law before provisional waiver was introduced

Under the old law, the waiver had to be adjudicated after the immigrant went to the U.S. consulate in his home country for a visa interview. The immigrants had to wait abroad for months or even years for the adjudication of their waivers. If a waiver was denied, the immigrant would get stuck in the home country.

Benefits of the new law on provisional waiver

Under the new law, provisional waiver can be adjudicated in the United States before the immigrant travels abroad for the visa interview in a U.S. consulate. Now if provisional waiver is granted, the immigrant can safely travel abroad for the interview and return quickly with an immigrant visa stamp in the passport. If provisional waiver is denied, the immigrant will not receive an immigrant visa through the petitioning U.S. citizen spouse. What is more important, however, is that the immigrant will not be placed in removal proceedings, will not have to travel abroad and the family will not be separated.

Adjudications of provisional waivers before the USCIS field guidance

Since the implementation of the new law on provisional waivers, immigration attorneys reported that USCIS was denying provisional waivers to anyone with criminal history. USCIS can deny provisional waiver if they have a reason to believe that the applicant was convicted of a crime that makes the applicant inadmissible. USCIS was abusing their power under this “reason to believe” standard. USCIS routinely denied provisional waivers in cases where the record contained evidence that an applicant was charged with an offense or convicted of a crime regardless of the sentence imposed or whether the offense would make the applicant inadmissible. Those denials conflicted with provisions in the Immigration and Nationality Act that allow for exceptions to charges of inadmissibility such as the “petty offense exception” or “youthful offender” exception.

Field guidance on provisional waivers

On January 24, 2014, USCIS issued a memorandum providing field guidance to all USCIS officials. The Field Guidance states the following:

1. USCIS officers should review all evidence in the record.
2. If the evidence shows the applicant’s crime falls within the “petty offense” or “youthful offender” exception, or that it is not a Crime Involving Moral Turpitude, the officer shall not find the applicant inadmissible solely on the basis of the criminal offense. 
3. The officer must continue processing the application to determine whether the other requirements are met for the provisional waiver.

Implications of field guidance on provisional waivers

This news is very important for provisional waiver applicants who have certain convictions on their record such as driving under the influence (DUI), petty theft, or other convictions that fall under an exception. If the applicant’s conviction does not trigger a ground of inadmissibility, or if conviction falls under the “petty offense” or “youthful offender” exception, such applicants may now file their provisional waiver applications.

The immigration laws are very complex and it is advisable to see an immigration attorney before filing a provisional waiver application. This is particularly true in cases where it is not clear whether the conviction is for a crime involving moral turpitude or whether it falls under an exception. In cases of applicants for provisional waiver who have criminal convictions, immigration attorneys routinely prepare and submit detailed memoranda clearly describing why the conviction does not trigger a ground of inadmissibility.