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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 cwheeler@cliniclegal.org.

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