Advocating for Affiliates on Provisional Waiver Denials

Aug 14, 2013
Debbie Smith

On August 5, 2013, CLINIC's Executive Director Jeanne Atkinson sent a letter to USCIS Director Mayorkas highlighting CLINIC’s concerns about the agency's improper use of the "reason to believe" standard in adjudicating provisional waiver applications.  Prompted by CLINIC affiliates' reports of recent denials of provisional waivers, CLINIC asked that Director Mayorkas instruct adjudicators to employ the proper standard and reopen cases that have been wrongfully denied. 

The provisional waiver provides for the adjudication of waivers of unlawful presence before an applicant departs the United States for his or her immigrant visa interview abroad. The provisional waiver process is available only to “immediate relatives” who will be found inadmissible based on unlawful presence. An applicant whom the USCIS has "reason to believe" is inadmissible under any ground other than unlawful presence is ineligible for the provisional waiver process and the waiver will be denied.  For that reason, USCIS's interpretation of "reason to believe" is a crucial element of the provisional waiver adjudication.

CLINIC's analysis of the provisional waiver denials reflects that USCIS has made findings of “reason to believe” in cases where the evidence does not indicate there is another ground of inadmissibility.  For example, USCIS has denied waiver applications where the applicant was convicted of a minor motor vehicle offense, a simple driving under the influence conviction that occurred longer than five years ago, and other crimes that do not constitute a ground of inadmissibility. 

USCIS has also denied waiver applications where the applicant provided a false name and/or date of birth when stopped by immigration officers at the border, which would not make an individual inadmissible unless the false statement was material, meaning that the applicant is inadmissible on the true facts.  These denials indicate an interpretation of "reason to believe" that is inconsistent with the Foreign Affairs Manual (FAM) and case law from the Board of Immigration Appeals and federal courts of appeal.

CLINIC will be following up with Director Mayorkas on this problem.  We will report on developments to the CLINIC network as they arise.  Stay tuned.

Debbie Smith is Senior Attorney, Training and Legal Support, for CLINIC.