In an April 14, 2013 meeting with USCIS Headquarters, the American Immigration Lawyers Association asked USCIS to clarify when a provisional waiver applicant’s criminal past will automatically exclude the applicant from the provisional waiver process. The current standard under the regulation requires CIS to deny any case filed under the provisional waiver program if USCIS has “reason to believe” that an applicant’s criminal conduct could lead to a finding of inadmissability besides unlawful presence by a consulate officer when the applicant travels abroad.  USCIS failed to describe how a “reason to believe” is measured but more importantly, explained that USCIS officers will not analyze a crime or even the documentation that an attorney provides to counter such a finding that is filed at the same time with the provisional waiver filing.

Although USCIS has explained that immigration officers deciding these waiver cases will be trained, it is too early to know how strict this “reason to believe” standard with no clear definition is going to be applied. From a worse case scenario, someone with even a misdemeanor DUI with no jail time could be excluded. The officers are only located in one state and are not considered experts on state law so many immigration attorneys fear the worst at this point, that any criminal act will lead to a denial of eligibility for a provisional waiver. The recent minutes from the AILA meeting with CIS lean towards the accuracy of this interpretation. To view the original minutes, view AILA Infonet Doc 13041143 at aila.org.

Get Your Free Guide! Immigration Attorneys & You: How to Choose Between the Right One and Those You Should Run From by Attorney Heather L. Poole

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