Last year, USCIS began a provisional unlawful presence waiver program that allowed certain relatives of U.S. citizens to remain in the United States while awaiting a decision on the waiver if the only basis for inadmissibility was unlawful presence. Under the previous guidance, however, an immigration officer could deny the waiver if the office had “reason to believe” that the applicant was subject to other grounds of inadmissibility.
Unfortunately, the initial application of the “reason to believe” principle produced harsh results. In some cases, applicants were denied waivers if they had any criminal history whatsoever, even if the alleged crimes would not have ultimately resulted in an inadmissibility finding. And for those applicants who were denied the provisional waiver, the only remaining option was to file for a traditional waiver at the consulate abroad – a requirement that was in direct opposition to the purpose and policies behind the provisional waiver program.
In new field guidance release January 24, 2014, USCIS clarified its procedures. Going forward, USCIS officers must review all records submitted by the applicant or the attorney of record. If those records appear to prove that that the alleged crime would either fall under the “petty offense” or “youthful offender” exception, or if the alleged crime is not a crime involving moral turpitude, then officers should not conclude that there is “reason to believe” that the individual is inadmissible for those reasons.
USCIS notes, however that the field guidance is only intended to provide officers with guidance in performing their job duties: “It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.”
