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DHS Expands Eligibility for Provisional Waiver

Charles Wheeler

DHS Expands Eligibility for Provisional Waiver

On July 29, 2016, the Department of Homeland Security published its long-awaited final regulation that expands eligibility to those who would be triggering the unlawful presence bar when they depart the country to attend their consular interview. Eligibility for the provisional waiver program will be enlarged to include all family-based and other intending immigrants who would be found inadmissible due to unlawful presence.  And the qualifying relatives who will suffer the necessary extreme hardship will include both U.S. citizens and lawful permanent resident aliens (LPRs).  In addition, the final regulation makes other important changes.  The rule will go into effect on August 29, 2016, on which date the agency will also publish a new Form I-601A. The rule can be accessed here. The agency plans to issue final guidance on the definition of extreme hardship within the next few weeks.


Persons who have accrued more than 180 days but less than one year of unlawful presence in the United States will trigger the three-year bar when they depart the country; those who have accrued one year or more will trigger the ten-year bar. INA § 212(a)(9)(B).  Currently, immediate relatives – spouses, unmarried children, and parents of U.S. citizens – may apply for a provisional waiver of that unlawful presence bar before they depart the United States.  In order to obtain the waiver, these persons must establish that their “qualifying relative” will experience unlawful presence if the waiver is denied and they are required to reside abroad for the required period of time.  The waiver is called provisional because the ground of inadmissibility has not been triggered yet and the U.S. consulate may still determine that the applicant is inadmissible under another ground. Under the provisional waiver program, qualifying relatives have been limited to the U.S. citizen parent or spouse.

Applicants for the provisional waiver complete a Form I-601A and submit it to the Chicago Lockbox after they have paid the immigrant visa fee with the National Visa Center.  They will also include proof of the approved I-130 petition and documents that support the hardship claim, including declarations from the applicant and qualifying relative. The I-601A applications are then forwarded to the National Benefits Center for adjudication.

Summary of the Final Rule

The DHS made the following changes to the provisional waiver program with the final rule:

  • Expanded the provisional waiver eligibility to all intending immigrants, including all family-based categories 
  • Expanded the qualifying relatives to include both U.S. citizen and LPR parents and spouses
  • Eliminated the regulatory provision directing USCIS to deny the provisional waiver if it has a “reason to believe” the applicant will be inadmissible under a separate ground
  • Eliminated restrictions on eligibility based on the date that DOS acted to schedule the consular interview 
  • Allowed persons with final orders of removal, exclusion, or deportation to be eligible for provisional waivers provided that they have already applied for, and USCIS has approved, an Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I-212
  • Clarified that DHS must have reinstated a removal, deportation, or exclusion order in order for an individual who has returned to the United States unlawfully after removal to be ineligible for a provisional waiver, and
  • Clarified that all persons seeking provisional waivers, including those in removal proceedings, must file applications for provisional waivers with the USCIS.

Expanded Eligibility to Other Intending Immigrants Including all Family-Based Categories

The first way that the rule expands the provisional waiver program is by making it available to all those who are statutorily eligible to seek a waiver of unlawful presence inadmissibility.  In particular, this means that all other beneficiaries of approved family-based petitions (Form I-130) may apply for the waiver, including all of the preference-based categories:

  • Adult children of U.S. citizens (first preference)
  • Spouses and unmarried children of LPRs (second preference)
  • Married children of U.S. citizens (third preference), and
  • Siblings of U.S. citizens (fourth preference). 

This change will have the biggest impact on the spouses of LPRs, who do not qualify for a provisional waiver under the current regulations.

Expanded eligibility for the provisional waiver also means that beneficiaries of approved employment-based petitions (Form I-140), VAWA self-petitions (Form I-360), widow(er) petitions (Form I-360), special immigrants (Form I-360), and diversity lottery winners will be eligible to file a 601A waiver application once the new rules go into effect. The selection of the person for the diversity visa program would be considered the functional equivalent of having an approved immigrant visa petition.

LPR Qualifying Relatives

The second way that the rule expands the provisional waiver program is to allow LPR parents and spouses to be qualifying relatives.  At the present time, only U.S. citizen parents and spouses qualify.  This expansion allows all “qualifying relatives” – defined in the statute as U.S. citizen and LPR parents and spouses – access to the program.  This expansion allows the spouses and children (between the ages of 18-21) of LPRs to base their waiver applications on extreme hardship to their LPR spouses and parents.  It also increases the options for immediate relatives and family members in the other preference categories. For example, if a U.S. citizen files a petition for his spouse, he could be a qualifying relative, as could her LPR mother or father. The wife’s waiver application would be strengthened by including an additional qualifying relative. 

It is important to remember that the I-130 petitioner does not need to be the qualifying relative.  For example, a U.S. citizen son could file an immediate relative petition for his mother.  The mother could base the waiver on extreme hardship to her LPR spouse or parents. The LPR parents would not qualify to petition for their married daughter, though they can be qualifying relatives. While the LPR spouse could file an I-130 for her, that petition would be in the second preference and is subject to a backlog.

Impact on Derivative Beneficiaries

The expansion also effectively allows derivative beneficiaries in the preference categories to map out a plan for provisional waiver eligibility. For example, the married son of a U.S. citizen may qualify for the provisional waiver by establishing extreme hardship to his U.S. citizen parent.  Once he immigrates, his derivative spouse and children would qualify by establishing extreme hardship to him, since he would now be an LPR spouse and parent. Similarly, the adult, unmarried daughter of an LPR may qualify for the provisional waiver by establishing extreme hardship to her parent.  Once she immigrates, her derivative children would qualify by establishing extreme hardship to her, since she would now be an LPR parent.

Reason to Believe

The final rule eliminates the authority of the USCIS to deny the provisional waiver application when it has a “reason to believe” the applicant is inadmissible under another ground of inadmissibility.  This authority has allowed the USCIS to deny provisional waiver applications where the adjudicator believed the applicant might be subject to another ground of inadmissibility. While this is a welcome change, it is important to remember that attorneys and accredited representatives will now have sole responsibility for determining whether any other inadmissibility grounds are applicable to their clients.  As before, those who are found inadmissible on a ground other than unlawful presence will have the approved provisional waiver revoked. If the additional inadmissibility found by the consular officer is waivable, the immigrant visa applicant can apply for a waiver of both the new ground of inadmissibility and the unlawful presence ground previously waived.  But this is a situation to avoid at all costs, since the immigrant visa applicant will have departed the United States not expecting and not being prepared for a prolonged separation from his or her family. 

Scheduled for a Consular Interview

The USCIS limits eligibility for the current provisional waiver program to applicants who had their interview with the consulate scheduled on or after January 3, 2013. The final regulation eliminates restrictions based on the date that DOS acted to schedule the immigrant visa interview.

Final Orders of Removal

The agency has broadened eligibility to include persons who have received a final order of removal, deportation, or exclusion.  When the person departs the United States while a final order is outstanding, he or she affects or executes that order.  INA § 101(g); 8 CFR § 241.7. And execution of the order makes the person inadmissible for a period of five or ten years (20 years in some situations).  INA § 212(a)(9)(A). The person may apply for a “waiver” of this ground of inadmissibility on Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.  The standard is simply a balancing of the equities, which is much lower than the extreme hardship standard.

If the person has not affected the order by leaving the country, he or she could move to reopen the case, vacate the order, and have it administratively closed.  In addition, persons in removal proceedings who have not been ordered removed could also move to administratively close the case.  The basis for this motion would be that the person is eligible for an immigrant visa and wishes to apply for the provisional waiver.  Should the waiver be granted, the person is then advised to move to terminate the proceedings before departing the country.

The final regulation also allows persons who have been ordered removed to apply for a “waiver” of this ground of inadmissibility before it is affected by their departure.  This is done by filing the Form I-212 with the USCIS in the jurisdiction where the person was ordered removed. 8 CFR § 212.2(j).  Upon receiving such consent, the individual's order of removal, deportation, or exclusion would no longer bar him or her from obtaining an immigrant visa abroad. Obtaining such consent, the person would then be eligible to apply for the provisional waiver.

Persons who have affected the removal order by departing the United States and then reentering without inspection on or after April 1, 1997 have triggered a separate ground of inadmissibility called the “permanent bar.”  INA § 212(a)(9)(C). This ground may not be cured through the provisional waiver process; instead the person must reside abroad for ten years and then obtain a waiver (consent to reapply) by filing a Form I-212. 

Finally, illegal reentry to the United States after a deportation, removal, or exclusion order renders the person subject to reinstatement of removal.  INA § 241(a)(5); 8 CFR § 212.7(e)(4)(vii).  But in the final regulation the DHS clarified that ICE or CBP must have formally reinstated such an order for the person to be ineligible for a provisional waiver.


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CLINIC’s Comments on USCIS’ Proposed Expansion of the Provisional Waiver Program

The Catholic Legal Immigration Network, Inc. (CLINIC) submitted these comments to the proposed rule on the expansion of the provisional unlawful presence waiver program, published in the Federal Register on 22 July 2015. Click here for a copy of the full letter.

For more information about the proposed rule, click here. The deadline to submit comments is September 21, 2015.

For a model copy of comments on the expansion, click here.

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Practice Advisory on Provisional Waivers

On November 20, 2014, President Obama announced a series of reforms modifying immigration policy (“Executive Action”). On the same day DHS Secretary Jeh Johnson issued agency-wide memoranda providing specific and more detailed information regarding the proposed changes. One of these memos concerned the agency’s plans to expand eligibility for the provisional waiver for unlawful presence. On July 22, 2015, the USCIS published a proposed rule expanding the program in two significant ways. This practice advisory offers strategies for practitioners representing clients in family-based immigration matters who may require a provisional waiver.

Who needs a waiver for unlawful presence?

Applicants for adjustment of status or an immigrant visa are subject to the grounds of inadmissibility. The most common ground is for those who have accrued “unlawful presence” that has been triggered by a departure from the United States.  The term “unlawful presence” is not defined in the statute or regulations, although the exceptions to unlawful presence are set forth at INA § 212(a)(9)(B)(iii).  Agency guidance on how this term is to be interpreted is included in the Adjudicator’s Field Manual, Section 40.9. Those who have accrued more than 180 days of unlawful presence but less than one year are subject to a three-year bar to admission. Those who have accrued a year or more of unlawful presence are subject to a ten-year bar.

This ground of inadmissibility, set forth at INA § 212(a)(9)(B), may be waived by applicants who can establish that their absence would cause extreme hardship to a U.S. citizen or lawful permanent resident (LPR) spouse or parent. INA § 212(a)(9)(B)(v). Applicants who have accrued unlawful presence that has not been triggered by a departure and who are eligible to adjust status will not need to file a waiver. Those who will trigger the unlawful presence ground upon departing the United States to attend an immigrant visa interview may file a waiver upon being found inadmissible by the U.S. consulate.

What is the provisional waiver and who is eligible for it?

On March 4, 2013 the USCIS implemented a new program allowing for the provisional adjudication of waivers for those who would be attending a consular appointment at a U.S. consulate and would be triggering the unlawful presence ground of inadmissibility. Eligibility for the provisional waiver is limited to those who will be inadmissible due solely to unlawful presence. Final regulations implementing the program were published in 78 Federal Register 536 on January 3, 2013, and can be found in 8 CFR § 212.7.

The program allows the agency to adjudicate waivers of unlawful presence before the applicant departs the United States for the immigrant visa interview. The applicant applies for the waiver after paying the immigrant visa fee with the National Visa Center (NVC). If the waiver is approved, the USCIS notifies the NVC, which in turn will forward the approval notice to the consulate where the applicant will be interviewed for the immigrant visa. The applicant can finalize any processing with the NVC and travel abroad for the consular interview with the knowledge that there will likely be no delay in issuance of the visa. The waiver is approved on a provisional basis because the Department of State will still conduct its own investigation as to potential inadmissibility based on other grounds, as well as verifying eligibility for the underlying visa. If the applicant is determined to be inadmissible based on a ground other than unlawful presence, the provisional waiver will automatically be revoked. The immigrant visa applicant would then have to re-apply for the unlawful presence waiver, as well as for a waiver of any other ground(s) of inadmissibility identified by the consulate, assuming a waiver is available.

What are the proposed changes to the provisional waiver program?

The provisional waiver program is currently available only to immediate relatives (spouses, unmarried children under 21, and parents of U.S. citizens). To qualify, the applicant must be at least 18 years old.  The “qualifying relative” must be a U.S. citizen spouse or parent.  For that reason, few parents of U.S. citizen children over 21 will qualify for the provisional waiver because they will not have the qualifying relative.  The program is currently being utilized almost exclusively by the spouses of U.S. citizens.

The USCIS will be expanding eligibility for the provisional waiver program in two important ways. First, according to the proposed regulation, the agency will expand access to the program to all statutorily eligible classes of relatives for whom an immigrant visa is immediately available.  This expansion will include preference category immigrants: adult sons and daughters of U.S. citizens, married sons and daughters of U.S. citizens, siblings of U.S. citizens, unmarried children (regardless of age) of LPRs, and spouses of LPRs.  It will also include beneficiaries of employment-based petitions, widows and other special immigrants, and diversity visa lottery winners. Second, the agency will expand the definition of who can be a qualifying relative to include LPR parents and spouses. Only persons scheduled for an interview with the U.S. consulate on or after the regulation is finalized will be able to take advantage of this expansion.

In addition, the USCIS will be issuing specific guidance defining the term “extreme hardship.”  The USCIS will be specifying the factors that should be considered, and these factors will likely include “family ties to the United States and the country of removal, conditions in the country of removal, the age of the U.S. citizen or permanent resident spouse or parent, the length of residence in the United States, relevant medical and mental health conditions, financial hardships, and educational hardships.” If the waiver applicant demonstrates that certain factors are present, the USCIS will presume the existence of extreme hardship.  It is not clear whether this guidance will require a formal regulation or when the agency will issue it.

What other Executive Action changes may impact on waivers?

An expanded Deferred Action for Childhood Arrivals (DACA) program and a new Deferred Action for Parental Arrivals (DAPA) program that were scheduled to be implemented in 2015 have been enjoined by a federal court.  If that injunction is lifted and the programs are put into place, they will create new opportunities for people to adjust status through travel. Persons granted deferred action under either of these two programs will be eligible for advance parole. Leaving the United States under advance parole is not considered a “departure” for purposes of triggering the unlawful presence grounds of inadmissibility.  The Board of Immigration Appeals held this in a case involving two family-based adjustment applicants, Matter of Arrabally, 25 I&N Dec. 771 (BIA 2012). The USCIS has been instructed as part of Executive Action to issue a memorandum clarifying that no one who departs and returns under advance parole will be viewed as having made a departure.  Persons who are paroled back into the United States are eligible to adjust status if they are immediate relatives.

In addition, Executive Action also expands eligibility for parole-in-place to the family members of those who enlist in the military. Parole-in-place is currently available to the parents, spouses, and children of those who are serving as active duty members of the U.S. Armed Forces, are current members of the Selected Reserve or the Ready Reserve, or previously served in the U.S. Armed Forces or Selected Reserve or the Ready Reserve. Parole-in-place is a status that provides those undocumented family members the right to reside in the United States and qualify for employment authorization. The status of parole also allows those family members who are immediate relatives eligibility to file for adjustment of status under INA § 245(a).

Therefore, there will be more persons eligible to adjust status, fewer people needing to consular process, and fewer needing to file a waiver for unlawful presence.

Are the approval rates for provisional waivers the same as for waivers for unlawful presence filed while abroad?

On April 29, 2015, the USCIS released statistics on the adjudication of Form I-601 filed after the applicant has left the United States, and for the provisional waivers filed on Form I-601A. From October of 2010 through January of 2015, the average approval rate for I-601s has been 79.6 percent and the average denial rate has been 20.4 percent. From March of 2013 through January of 2015, the average approval rate for I-601As has been 70.2 percent and the average denial rate has been 29.8 percent. The number of I-601s and I-601As that have been filed during those two periods is approximately the same. Therefore, the approval rate for I-601s is slightly higher, even though the same extreme hardship standard is applied.  Some have reasoned that it is harder to obtain approval of the provisional waiver because the hardship to the qualifying relative is prospective and anticipated rather than with the I-601 where the hardship is currently being experienced.

What should practitioners do now?

Practitioners representing persons in family-based immigration matters are now weighing the effects of Executive Action and considering the additional options available to their clients. Some may be eligible for DACA or parole-in-place now, which would allow them to qualify to file for adjustment of status if they are immediate relatives and travel on advance parole. Others may qualify for expanded DACA or DAPA upon the lifting of the injunction and implementation of those programs. The uncertainty about when or if these programs will ever launch, however, favors the pursuit of consular processing and waivers of inadmissibility rather than waiting for a possible opportunity to adjust status in the future.  Those who would not qualify for these programs and who must consular process should be eligible to apply for a provisional waiver once the USCIS issues a final regulation and implements the changes. 

When the provisional waiver program began, the USCIS limited eligibility to immediate relatives who had their interview with the consulate scheduled on or after January 3, 2013. In the expanded program the USCIS is proposing to maintain that cut-off date for immediate relatives, even if they became eligible for the expanded program for the first time under broader definition of “qualifying relative.” For all others, the cut-off date would be the effective date of the final regulation. Under the proposed regulation, those who are scheduled for a consular interview before that date will be ineligible to apply for the provisional waiver. Given the likelihood that the Service will maintain those cut-off dates in the final regulation, practitioners should counsel clients not to pay the immigrant visa fees and complete the Form DS-260 if they want to participate in the provisional waiver program. Those clients who are scheduled for an immigrant visa between now and the date of the final rule will not be able to take advantage of the expanded eligibility criteria.

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Update on Waiver Adjudication from the NSC

By Susan Schreiber


On April 17, 2014, CLINIC was pleased to welcome Faye Frye and Ju Suh of the Nebraska Service Center (NSC) to speak to participants at our two-day training in Omaha on inadmissibility grounds and waivers of inadmissibility. The NSC adjudicates I-601 waiver applications filed abroad after the immigrant visa applicant has been found to be inadmissible on a waivable ground.  The NSC does not adjudicate I-601s filed in conjunction with an application for adjustment of status; those are adjudicated by the local USCIS district office. The NSC does not adjudicate the provisional waivers, Form I-601A; those are adjudicated by the National Benefits Center (NBC). Ms. Frye, an immigration services officer, and Mr. Suh, a supervisor, explained the waiver adjudication process and responded to questions on a wide range of issues.  Highlights of their remarks are summarized below.


1Notification of Inadmissibility and Application Submission.  Immigrant visa applicants who are found inadmissible on waivable grounds will receive waiver submission instructions along with the refusal notice.  The I-601 waiver form, and an I-212 if applicable, are filed with the Phoenix lockbox and then routed to the NSC.   If the applicant qualifies for expedited adjudication and there is a co-located USCIS office at the consulate, the applicant can file the waiver application abroad.  If the need for expedited adjudication arises after the application has been filed with the NSC, make the expedite request by contacting the National Customer Service Center, which will forward the request to the NSC.


2. Waiver Review.   Ms. Frye described the adjudication process as consisting of the following sequence of steps:

  • Determining whether I-601 is properly signed. Only the waiver applicant can sign the form, not the qualifying relative.
  • Determining if any G-28 form submitted with the application is properly signed by the applicant. If not, it will not be recognized and all case correspondence will go to the applicant's address as listed on I-601, which is usually a foreign address.
  • Reviewing the  inadmissibility ground or grounds identified by the consulate to determine if a waiver is available and, if so, if a qualifying relative is required
  • Confirming that a qualifying relative exists where required for waiver eligibility
  • Assessing evidence of extreme hardship to qualifying relative
  • Determining whether a favorable exercise of discretion is warranted

The NSC officer cannot reverse a finding of inadmissibility made by a consular officer, but will notify the consulate if USCIS service records contradict the finding of inadmissibility.  In that event, the officer will make that communication before adjudicating the waiver.  In addition, the NSC will consider all grounds of inadmissibility identified by the consulate, regardless of which boxes the applicant marks on the I-601.  It is possible, therefore, for an applicant found inadmissible for unlawful presence and for smuggling, to be granted a waiver for both grounds of inadmissibility even if the applicant only noted unlawful presence on the waiver form, assuming it was otherwise apparent that the applicant qualified for a smuggling waiver.


3. Assessment of Extreme Hardship.  The speakers noted that the extreme hardship standard is not variable based on the ground of inadmissibility.  For example, a person seeking a I-601 waiver for a willful misrepresentation or a crime does not need to show more extreme hardship than a person seeking a waiver for unlawful presence.  Ms. Frye described the declarations from the qualifying relative and the applicant and the supporting documents as the most important evidence.  The statements should be in the declarant's own voice, and handwritten declarations can be submitted if legible.  Ms. Frye also noted that in cases involving medical issues, it is helpful to include the credentials of the medical professional who wrote the assessment. She also encouraged applicants to include a cover letter – not a legal brief – that sets forth the facts in the case and explains why the application should be granted.

Crime-based inadmissibility is subject to a higher hardship standard when the underlying crime is deemed to be violent or dangerous.  Ms. Frye noted that adjudicators struggle with this issue and often consult with the NSC legal department for an opinion on whether the crime triggers the "exceptional and extremely unusual" hardship requirement.  Where the adjudicator determines that the higher standard applies, the applicant will receive an RFE to that effect, and be asked to submit additional documentation to satisfy the standard.  Ms. Frye reported that at least one waiver has been approved based on exceptional and extremely unusual hardship.


4. Exercise of Discretion.  Waivers may be denied in the exercise of discretion even where extreme hardship is established, although the presence of extreme hardship is viewed as a favorable discretionary factor.  Advocates are encouraged to try to counterbalance each negative factor in a case with evidence relating to a positive factor.  For example, they could show rehabilitation for someone inadmissible for a crime.  Unlike the extreme hardship requirement, the exercise of discretion is impacted by the underlying inadmissibility ground, making it harder, in general, to obtain a favorable exercise of discretion for crime-based inadmissibility.


5. Communicating Decisions to the Consulate. The NSC sends notifications to the consulate concerning I-601 and I-212 waiver decisions every Tuesday and Thursday.  Generally, these reports are sent to the consulate within a few days of the waiver adjudication. All consular reports are made at the same time and with the same process; the process of reporting decision outcomes does not vary from consulate to consulate.


6.  Adjudication Times and Approval Statistics. It is now taking about six months to adjudicate waiver applications, which represents improvement from a recent eight-month backlog. The NSC has doubled its staff and hopes to reduce adjudication time to four months.

There are no quotas set for approvals or denials of waivers; they are all decided on a case by case basis.  An RFE will always be issued before a denial, unless the applicant is statutorily ineligible for a waiver (e.g. inadmissible due to false claim of U.S. citizenship).

The speakers reported that USCIS is not releasing statistics on waiver approval rates, citing concern that a denial rate perceived as high will discourage some people from filing.  Ms. Frye also noted that there is no current tracking of I-601 waiver approvals as they relate to specific grounds of inadmissibility or multiple grounds of inadmissibility, nor is the NSC tracking the number of motion to reopen or reconsider leading to decision reversal.


7.  Quality Control:  Waiver adjudication officers received a ten-day training, followed by monthly meetings to discuss issues and a monthly quality review.  All denial decisions are reviewed by supervisors, who also check on percentages of denials and RFEs among officers to monitor consistency of adjudications.

Ms. Frye reported that there is no cross-communication between NSC and NBC with respect to comparing adjudications of I-601 and I-601A applications; these adjudications processes are kept separate. Although no statistics are kept on misfiled applications, filing the wrong form is likely to result in a denial. Where the right form is filed in the wrong place, however, that may be remedied by a transfer to the correct USCIS office.


8. Practice Tips

  • Make sure the waiver application and the G-28 are signed by the waiver applicant.
  • If possible, include a copy of the DOS refusal worksheet with your submission;  it doesn't matter if it's not in English.
  • Paginate all of the waiver application submission, starting with the cover letter.
  • If you use color page separators between various sections of supporting documents, do          not use card stock quality paper.
  • Do not include any multi-media evidence (e.g. video or audio recordings); these will not be considered.
  • Do not include massive amounts of country condition information for Mexico, and focus any country condition on the area where the applicant lives.  It is not necessary to submit full DOS country reports or large volume of newspaper articles.
  • Do not file the I-601 prematurely, before the consulate makes a finding of inadmissibility. Where that does happen, the NSC will send an RFE, and if the applicant is in fact found inadmissible at the consulate during the RFE response period, that can remedy the premature filing. Otherwise, the application will be denied.
  • It is not necessary to document the citizenship or immigration status of family members unless they are tied to the hardship claim.

Provisional Waivers: New CIS Memo on "Reason to Believe"

By Debbie Smith

On January 24, 2014, USCIS issued an instruction to its employees on the adjudication of provisional waivers in cases where the applicant has a criminal history. The new instruction limits the grounds on which provisional waivers can be denied.  The provisional waiver process, first implemented by regulations on March 4, 2013, allows immediate relatives to apply for the waiver of the unlawful presence ground of inadmissibility before departing the United States for a consular interview abroad. Under these provisional waiver regulations, a waiver is not available to an applicant whom USCIS has “reason to believe” may be subject to a ground of inadmissibility other than unlawful presence.

Applicants with Criminal Histories

Until the January 24th guidance, applicants who had been convicted of any criminal offense other than a minor traffic citation were found ineligible for a provisional waiver under the USCIS interpretation of the "reason to believe" standard.  Where biometrics or a law enforcement check revealed any apparent criminal issue in the applicant's background, USCIS would not analyze or consider the evidence to determine if it actually constituted a ground of inadmissibility.  Instead, USCIS denied the provisional waiver under the "reason to believe" standard on the ground that the consular officer "may find the individual inadmissible based on his or her criminal history."  See USCIS, Questions and Answers: USCIS-American Immigration Lawyers Association (AILA) Meeting (April 11, 2013). As a result, applicants who were not actually inadmissible based on any criminal basis were nonetheless denied the provisional waiver under the “reason to believe” standard.

The January 24th instruction changed this policy.  Now USCIS officers "should not find a reason to believe that the applicant may be subject to inadmissibility under INA § 212(a)(2)(A)(i)(I) (the crime involving moral turpitude ground) solely on account of that criminal offense." See USCIS, Guidance Pertaining to Applicants for Provisional Unlawful Presence Waivers, (January 24, 2014).  The new policy requires USCIS adjudicators to examine any evidence in the record, including evidence provided by the applicant or the applicant's attorney, in order to determine if the applicant is inadmissible on a crime-related ground.  The adjudicator must now analyze whether the criminal offense actually constitutes a crime involving moral turpitude and, if so, whether the applicant falls within the "petty offense" or "youthful offender" exception.  The new instruction recognizes that because a criminal conviction in and of itself may or may not constitute a ground of inadmissibility, an analysis of the underlying criminal offense is the only way to conclude if there is a "reason to believe" that the applicant may be inadmissible.

Remaining Issues

This policy is an important step forward in establishing a fair and just provisional waiver procedure. In August 2013, advocates, including CLINIC, AILA and other organizations, urged USCIS to apply a proper interpretation of "reason to believe."  The January 24th guidance is a positive development in response to advocates' concerns. However, there are certain limitations in the new guidance that should be kept in mind.

First, the new guidance does not address the process for reconsidering those applications that have already been wrongly denied before the guidance issued. The guidance contains no information on whether USCIS will reopen the previously denied application or whether a new filing will be required.  It does not address whether, assuming a new filing is required, a filing fee will be needed.  While the waiver regulations do not provide for the applicant to file an appeal or motion to reopen, there is nothing to prevent USCIS from reopening and reconsidering a previously denied application.

Second, the guidance did not does not address a separate issue related to USCIS use of the “reason to believe” standard, namely waiver denials based on an improper assessment of the applicant's statement made at the time of an attempted entry at the border.  Discrepancies related to the applicant's birth date or name, for example, are not "misrepresentations" that are material to the applicant's eligibility for admission to the United States.  Nonetheless, USCIS has routinely denied waiver applications based on the "reason to believe" standard where the applicant gave a false name or birth date when stopped at the border and refused entry, or where the officer reported the information incorrectly or incompletely. The January 24th instructions do not correct this improper application of the "reason to believe" standard. 

CLINIC hopes that USCIS will issue further instructions addressing the reopening of improperly denied waiver applications and the proper assessment of erroneous but immaterial statements made during the voluntary return process at the border.  CLINIC continues to advocate for these changes.

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Update from the NBC on Provisional Waivers

Update from the NBC on Provisional Waivers

By Charles Wheeler and Susan Schreiber

On September 26-27, 2013, CLINIC conducted a two-day training in Kansas City on provisional adjudication of unlawful presence waivers.  The training included a presentation by Robert Blackwood, Assistant Section Director for Adjudications at the National Benefits Center (NBC), who gave an update on the waiver adjudication process at the NBC and answered questions from training participants.  A summary of the information he provided appears below.

NBC Background

The NBC serves mainly as a pre-processing center for applications adjudicated at USCIS field offices, including I-485 adjustment applications and N-400 naturalization applications. In addition, the NBC adjudicates certain applications and petitions to completion, including I-90s, immediate relative I-130 petitions, interview-waivable adjustment applications and, since March 4, 2013, I-601A applications for provisional waivers.  In addition to its facility at Lee Summit, MO, the NBC has expanded to include a new facility in Overland Park, KS.   Approximately 500 government employees and 800 contract workers staff the Lee Summit site. Currently, the NBC facility in Lee Summit employs approximately 550 government workers, and 800 contract workers.  A new NBC facility in Overland Park, KS is expected to employ 400-500 government workers and a similar number of contract workers.

I-601A Adjudication

The NBC is divided into eight divisions.  Division 1 is responsible for I-601A adjudications and   is staffed with between 45-50 adjudicators and 5 supervisors.  When fully staffed, the division will have 6 supervisors, who in turn report to 2 section chiefs.

All I-601As are filed at the Chicago Lockbox, which reviews submissions under its own business rules that address document sufficiency.  If rejected, an application should be accompanied by an explanation of deficiency.  If accepted, the Lockbox creates a case receipt file and forwards it to the NBC, where it goes through its own initial processing checklist.  NBC contract staff goes through their checklist to determine if the application is complete.  If staff determines there are missing documents, it issues a Request for Evidence (RFE); otherwise, it will schedule the applicant for a biometrics appointment. When the biometrics and the name check results come back, the application is transferred to the “JIT" ("Just in Time”) shelves and is considered ready to be adjudicated.

Supervisors assign cases to adjudicators when they are ready to be adjudicated. When they receive a file, the adjudicator first looks for basic eligibility – name check and biometrics response, national security issues – and if there is a “hit,” the file is forwarded to a security clearance team for resolution.  For cases that pass security clearance or do not have “hits,” the adjudicators follow a “processing checklist” sheet, which guides them through the process of determining statutory eligibility (e.g., USC qualifying relative) and whether the applicant has satisfied the extreme hardship standard.  The adjudicator makes notes on the processing checklist, which is helpful in making the decision and for later supervisor review. If the case is denied, the file is sent to the National Records Center, where it will be stored.  If it is approved, the file will be sent to the Texas Service Center.  The TSC holds on to the case files so they can be matched up later after the applicant immigrates.  The NBC sends the applicant and the representative the written approval or denial decision.

The NBC sends the National Visa Center (NVC) an electronic data report on I-601A receipts on a daily basis, so that the NVC can stop processing the immigrant visa application until there is a decision on the waiver application. A "decisions" report is then sent to the NVC every week, to inform the NVC of waiver application outcomes so that the NVC can then proceed with IV processing. The NBC does not send the actual I-601A decision to the NVC; it only sends notification of whether the I-601A was approved or denied. If the NBC denies the application because it has a “reason to believe” the applicant might be inadmissible under another ground, it only informs the NVC that the waiver application was denied.

For the first two months of provisional waiver adjudication, all applications were reviewed by division supervisors to ensure that the appropriate decisions were being made. Now, all denials are reviewed by the supervisor and approvals only spot-checked.  If a supervisor has questions or concerns about a particular decision, the supervisor is not supposed to tell the adjudicator how to rule in a particular case.  Instead, the supervisor should encourage a dialogue with the adjudicator to find out more about the decision recommendation.  If there is still disagreement as to whether the application should have been approved or denied, the supervisor may go to one of the section chiefs for further guidance.

Every week a report is generated indicating how many applications were adjudicated.  Based on those reports, the process is becoming more efficient.  The NBC is in communication and is sharing data with the State Department to determine whether I-601A applicants who were denied were later approved by the consulate through an I-601 waiver.  It is looking specifically to see if applicants denied based on the “reason to believe” standard were found by the consulate to be inadmissible only for unlawful presence and later approved through an I-601. It is also seeking the opposite type of statistics: whether applicants whose I-601As were approved were later denied by the consulate due to a finding of inadmissibility on a ground other than unlawful presence.  After only six months of provisional waiver adjudication, the statistical evidence is not yet meaningful to draw any conclusions on these issues.

If an I-601A applicant who is denied elects to re-file, the NBC will pull the original application and check it against the new application.

Both ICE and EOIR seem supportive of the provisional waiver process because it allows them to clear cases off their active docket where the respondent is likely to receive an immigrant visa.


The NBC has provided the following numbers based on I-601A applications received or adjudicated from March 4 – September 14, 2013:

23, 949 applications sent to Lockbox

17,996 applications accepted by Lockbox

5,953 application rejected by the Lockbox

The reasons for rejection could include no applicant signature, no proof of I-130 approval, no proof of NIV fee paid, or applicant is under 17.  The number of applications received may include re-filings by applicants whose cases were initially rejected at the Lockbox.  

The NBC has 12,098 applications in the pipeline, with approximately 2,300 ready for processing. It is averaging approximately 600 applications/week, so it has about four weeks of applications to adjudicate.  With 45 adjudicators currently working these cases, this averages out to each adjudicator handling about 13 applications per week, or about 2.6 per day.  Mr. Blackwood noted that adjudicators have other work responsibilities, including time spent in trainings and at meetings.

The NBC has issued the following decisions:

3,497 approvals (59%)

2,292 denials (39%)

103 admin closures (application returned for various reasons, e.g., filed I-601 instead of I-601A) (2%)

Although applications have been denied for various reasons, the highest number of denials – 1,093, or 48% of all denials – is for "reason to believe."  The second highest number – 937, or 41% of all denials – is for failure to establish extreme hardship.  Other reasons for denial include abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and applicant subject to existing or final order of removal.

At present, the average time between receipt of an application at the Lockbox and decision issuance is 103 days.  The goal is to reduce the adjudication time to 90 days. The NBC adjudicators were working at that pace initially until the “reason to believe” denials became a controversial issue.

Reason to Believe

Mr. Blackwood explained that the provisional waivers working group developing the I-601A regulations and procedures for processing wanted to keep inadmissibility determinations a function of the Department of State, so that USCIS officers would limit their consideration to waiver adjudication. This is because the USCIS has no authority to determine admissibility in a case to be decided by the consulate after the applicant has left the United States and appeared for the interview. In other words, the USCIS did not want its adjudicators analyzing whether the applicant was inadmissible on grounds other than unlawful presence. At the same time, the USCIS did not want to approve I-601As and have the applicant be denied at the consulate for another ground of inadmissibility.

That was the rationale for developing the “reason to believe” standard, where the adjudicators would make a very quick assessment based on the name check and biometrics results as to whether the applicant might be inadmissible on another ground. Under this standard, adjudicators are instructed to deny all applications involving a criminal conviction, regardless of what the conviction is for, when it occurred, or whether it falls within a recognized exception to inadmissibility, like a petty offense.  If  the fingerprint check resulted in a “hit” during an IDENT database search, and it revealed a conviction, then the application was denied under the “reason to believe” standard.  Similarly, if there was an inconsistency in the name or date of birth of the applicant and that provided during CBP processing for voluntary departure after an arrest at the border, the applicant was denied for “reason to believe.”

As the NBC staff soon realized, this broad application of the "reason to believe" standard has led to a high denial rate.  Given this development, Mr. Blackwood announced that, as of six weeks ago, NBC stopped issuing any "reason to believe" denials and is suspending adjudication of cases where this issue is present while USCIS and DOS reconsider the current policy and decide how to proceed in the future.  During this time, cases that involve a potential "reason to believe" issue are being held in abeyance, with no action taken on the case; currently about 1,300 pending applications are affected by this issue and will not be adjudicated until there is further guidance on the reason to believe policy.

Mr. Blackwood noted that if the reason to believe standard is changed so that not all of the denied cases would warrant denial under revised interpretation, the NBC will also consider whether to apply any new policy retroactively and reopen denied cases sua sponte.

While there is no mechanism to appeal a denial or seek reconsideration, the NBC can reopen a case on its own if it believes a denial was made incorrectly. Mr. Blackwood indicated during his presentation that denials under the reason to believe standard that seem clearly wrong could be brought to his attention and he would pull the file to see if the agency made a mistake.  The examples he gave where the standard might have been misapplied include cases where the applicant’s name and date of birth appear inconsistently in DHS data files, but the inconsistency appears to be a clerical error or insignificant.  It would not include cases containing criminal convictions, since the agency is waiting for further instruction before reviewing those.  To bring those cases to his attention, send an e-mail to the authors at or  Include the name of the applicant, the waiver receipt number, and the “A” number, as well as a brief description of the issue (e.g., month and day of applicant’s date of birth were transposed; applicant’s name recorded incorrectly).

Adjudication of Extreme Hardship and RFEs

Current policy does not mandate that the agency issue an Request for Evidence (RFE) before issuing a denial.  NBC adjudicators will typically issue an RFE if they believe additional documentation will help them reach a decision in a case.  For example, if an applicant claims a health-related hardship, but only submits financial evidence, the adjudicator will issue an RFE.  Or if the applicant claims multiple hardships but submits only evidence supporting one claimed hardship, or weak evidence of hardship, the adjudicator will issue an RFE for the additional evidence.  But if the applicant claims hardship and the officer believes sufficient evidence was presented but that the extreme hardship standard was not met, then the adjudicator can simply issue a denial without issuing an RFE.  In other words, if additional documentation would not add any value to the hardship claim, the NBC will forego issuance of an RFE.  Mr. Blackwood noted that quality control measures are in place because all denials are reviewed by a supervisor. 

Mr. Blackwood explained that RFE response times are set at 30 days so that consular processing is not delayed.  A request for an extension may be considered if there are compelling reasons warranting additional time to respond to the RFE

Comparison with NSC Adjudications of I-601

NBC staff made adjustments to their standards for evaluating extreme hardship that has resulted in more provisional waiver approvals. These adjustments came in the wake of exchanging information and statistical data with the NSC regarding its adjudication of I-601 waivers, as well as reviewing AAO waiver denial reversals.  Mr. Blackwood explained that adjudicators are now assessing extreme hardship to the qualifying relative as impacted by hardships to other family members. As a result, the denial rate has come down and the NBC is approving more applications.  Mr. Blackwood anticipates that the denial rate will continue to go down as adjudicators gain more experience.

Mr. Blackwood also noted that the provisional waiver is more challenging for the applicant, because the hardship to the qualifying relative is prospective, as opposed to the I-601 applicant who has left the United States and whose qualifying relative is already experiencing the hardship.  For this reason, the denial rates will not necessarily be comparable. 

Waiver Submission Format 

Mr. Blackwood encourages applicants to submit a cover letter or brief that summarizes the hardships and helps the adjudicator understand the theory of the case. Submit all supporting evidence that is pertinent, such as a doctor’s letter summarizing medical conditions.  Since the Lockbox removes all tabs and bindings, use some kind of pagination system to help identify and segregate supporting documentation.  Even though the application is scanned at the Lockbox, the original submission is still sent to the NBC; any highlighting of important documentation or color dividers separating exhibits will be retained.  If submitting supplemental information after the application has already been submitted, make sure to include the receipt number and the A#.   Avoid sending multiple pages from the Internet on a specific medical condition (e.g., definition of diabetes) or DOS country conditions reports.


Stay tuned for a formal decision from the USCIS on whether the NBC will modify the way it adjudicates I-601As with respect to the reason to believe standard.  Expect the NBC’s current approval rate (approximately 60%, including reason to believe denials) to increase.

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Update on Provisional Waivers Adjudication

Update on Provisional Waivers Adjudication

By Charles Wheeler

The National Benefits Center has reported receiving approximately 7,000 I-601A waiver applications during the first four months of the program, although it is not releasing statistics on approvals or denials.  It also reported that most of the rejected applications are due to failure to submit proof of having paid the immigrant visa fee bill.  We have heard from some practitioners who have received approvals, which is encouraging.  The NBC is indicating that their goal is to adjudicate I-601A applications within six months of submission.

Unfortunately, we have also heard from practitioners who have received boilerplate Request for Evidence (RFEs) in cases that should have been approved.  The rate of RFE issuance is apparently quite high – anecdotal evidence puts the figure at perhaps 50% – which may be due to the agency trying to stall while they staff up to meet the demand. It has left practitioners in a quandary if they have submitted a strong application supported by ample documentation only to receive an RFE stating the following: “Your request for a provisional unlawful presence waiver does not include sufficient evidence that your U.S. citizen spouse or parent would experience extreme hardship if you were refused admission to the United States.”

We have also heard from some practitioners who have been denied because the NBC staff determined it had a “reason to believe” the applicant would be found inadmissible by the consulate for a ground other than unlawful presence.  Apparently the NBC is not applying the correct standard for who is or is not likely to be found inadmissible based on current interpretations.  For example, they have denying applicants for the following reasons:

  • They have a minor criminal offense that does not amount to a crime involving moral turpitude (CIMT)
  • They have a CIMT conviction that clearly falls within the “petty offense” exception
  • They were convicted of a single DUI more than ten years ago and even submitted evidence of counseling and a clean driving record since that date
  • They provided a wrong name or date of birth when arrested for illegal entry at the border and granted voluntary departure, or the name or date of birth was simply recorded incorrectly by the border official
  • They were incorrectly found to have triggered the “permanent bar” under 212(a)(9)(C) based on unlawful presence occurring before April 1, 1997.

The boilerplate denials include language such as: "The record shows that you have a criminal history that includes a conviction for at least one crime… Based on the information noted above, the USCIS has reason to believe that you may be found inadmissible by a Department of State consular officer.”

At this time we are recommending that practitioners hold off in filing I-601A waiver applications in cases where the applicant has a DUI or any other criminal offense.  CLINIC and other advocacy groups, including AILA NBC Liaison Committee, have notified the USCIS of this problem and are trying to pressure the agency to resolve it through better staff training and education on the law. We would like to be informed if you have received an RFE or a denial that you believe was improper. Please contact me at

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USCIS Finalizes Regulation on Provisional Waivers for Unlawful Presence

On January 3, 2013, the USCIS finalized its regulation regarding the adjudication of waivers for those who are consular processing and would be triggering the unlawful presence ground of inadmissibility.  The rule provides a process by which the agency will adjudicate these waivers before the applicants leave for their immigrant visa interview.  The procedure would be available only to immediate relatives who are inadmissible based on unlawful presence – and no other grounds – and who can establish extreme hardship to a qualifying U.S. citizen spouse or parent.  To be eligible, the applicant would need to have an approved I-130 or I-360 petition and have paid the immigrant visa fee bill.

Read the entire memo here.

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