U.S. Citizenship and Immigration Services (USCIS) recently announced that it will reopen Provisional Waiver of Unlawful Presence cases that were denied because of the applicant’s criminal history. This means hundreds of previously denied cases will be reopened and re-adjudicated.
A Brief Background:
The stateside Provisional Unlawful Presence Waiver allows applicants to remain inside the U.S. while USCIS adjudicates their applications. Because the Provisional Waiver only waives unlawful presence, applicants that have any other factors that might render them inadmissible, like prior removals or certain criminal convictions, do not qualify for this waiver.
The Provisional Waiver process is a relatively new one, beginning only last year. As may be expected of any new process, there were some bumps along the way. One of the biggest bumps in the new process was USCIS’s bungled handling of applicants with any sort of criminal history. Last summer, USCIS denied any applicant who had a criminal history—no matter how minimal—because it claimed there was “reason to believe” those applicants might be inadmissible on grounds other than unlawful presence. The problem was that USCIS failed to conduct any inadmissibility analysis of these cases before denying them; thus, applicants with, for example, a single alcohol violation might be denied a Provisional Waiver, even though the violation would not render them inadmissible.
USCIS’ New Policy:
In January of this year, USCIS finally announced a new policy regarding “reason to believe” waiver adjudications. Under the new policy, USCIS must analyze each case to determine if an applicant’s criminal history might render him or her inadmissible. If the criminal history does not rise to the level of rendering the applicant inadmissible, then USCIS must adjudicate the Provisional Waiver on its merits. This was great news for soon-to-be-applicants, but what about all those who applied last year and were erroneously denied?
In March, USCIS announced that it would reopen cases that were denied last year due to criminal history. If there is no “reason to believe” the applicant would be inadmissible, USCIS will adjudicate the waiver on its merits. This is great news for those whose waivers were erroneously denied. If you fall into this category, you do not have to do anything; USCIS will inform you if it is reopening your case.
For everyone else who is currently waiting for a decision on their Provisional Waiver, however, this new maneuver by USCIS could mean a longer wait. USCIS was taking about six months to adjudicate a Provisional Waiver; now, they are reopening hundreds of closed cases, which will likely slow down the adjudication process for everyone. If you fall into this category, sit tight and remember that this common-sense policy is a step in the right direction.
