Law Firm Blog

Friday, January 24, 2014

USCIS Issues Field Guidance on I-601A Provisional Waiver Applicants with Criminal Arrests or Convictions




USCIS Issues Field Guidance on I-601A Provisional Waiver Applicants with Criminal Arrests or Convictions


On March 4, 2013, the USCIS began a new provisional unlawful presence waiver program for immediate relatives of U.S. citizens whose only ground of inadmissibility is unlawful presence in the United States under section 212(a)(9)(B)(i)(I) and (II) of the Immigration and Nationality Act (INA).


The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all I-601A Provisional Waiver eligibility requirements and warrant a favorable exercise of discretion.


There are several circumstances that may render an individual ineligible for a provisional unlawful presence waiver.  For example, individuals with final orders of exclusion, deportation, or removal; individuals who are currently in removal proceedings that are not administratively closed at the time of filing; and individuals who have a pending application with USCIS for lawful permanent resident status are not eligible to apply for the provisional unlawful presence waiver.  Individuals for whom there is a reason to believe that they may be subject to grounds of inadmissibility other than unlawful presence at the time of the immigrant visa interview with a  Department of State (DOS) consular officer also are ineligible for the provisional unlawful  presence waiver. See 8 CFR 212.7(e) (2013).


If a USCIS officer determines, based on the record, that there is a reason to believe that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of his or her immigrant visa interview with a DOS consular officer, USCIS will deny the request for a provisional unlawful presence waiver. See 8 CFR 212.7(e)(4)(i) (2013).


Since the commencement of the I-601A Provisional Waiver program, the USCIS denied I-601A waiver applications when the applicant had any criminal history.  In these cases, if the record contained evidence that an applicant was charged with an offense or convicted of any crime (other than minor traffic citations such as parking violations, red light/stop sign violations, expired license or registration, or similar offenses), regardless of the  sentence imposed or whether the offense is a Crime Involving Moral Turpitude (CIMT), USCIS denied the I-601A waiver application.


The USCIS has now issued guidance to its officers to review all evidence in the record, including any evidence submitted by the applicant or the attorney of record.


If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication, or (2) is not a Crime Involving Moral Turpitude under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense.


The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful  presence waiver, including whether the applicant warrants a favorable exercise of discretion.


This news has been much-anticipated by potential waiver applicants who have certain convictions such as Driving Under the Influence (DUI) on their record.  Assuming the applicant’s criminal conviction(s) does not trigger a ground of inadmissibility, or their criminal conviction falls under the “petty offense” or “youthful offender” exception, waiver applicants may now proceed with their I-601A Provisional Waiver applications.


Keep in mind that it is extremely important for applicants with criminal conviction(s) in their background to prepare and submit a memorandum, together with their I-601A waiver package, clearly describing why their criminal conviction(s) does not trigger a ground of inadmissibility; or why their criminal conviction falls under the “petty offense” or “youthful offender” exception of INA section 212(a)(2)(A)(ii).

Tuesday, July 10, 2012

Deferred Action is Here!!

The President and the Secretary of the U.S. Department of Homeland Security (DHS) have announced a policy for DHS to grant "deferred action" and work authorization to certain students and young adults who otherwise might be removable ("deportable") from the United States. Deferred action in general is a DHS decision not to pursue enforcement against a person for a specific period of time and allows recipients to apply for an Employment Authorization Document (commonly known as "work authorization"). This is a real, but limited, step that has engendered national discussion about the proposed Development Relief and Education for Alien Minors Act (the "DREAM Act"), which at its core provides a form of relief to certain students and young adults who are out of status through no fault of their own and a pathway to citizenship. Although the Deferred Action Program mirrors the DREAM Act, it does not provide a pathway to lawful permanent resident status or citizenship; rather it prevents qualifying applicants from being deported and enables them to apply for work authorization.

Eligibility for Deferred Action Program

As of June 15, 2012, qualifying applicants must meet all of the following criteria: 

  1. Have come to the U.S. under the age of 16;
  2. Have continuously resided in the U.S for at least 5 years prior to June 15, 2012;
  3. Have been physically present on June 15, 2012;
  4. Currently be in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  5. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  6. Not be above the age of 30; and
  7. Be age 15 or older to request deferred action affirmatively from U.S. Citizenship and Immigration Services (USCIS) (as opposed to those facing removal by Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP), who can apply even if under age 15).

Evidence to Establish Eligibility

The process for applying affirmatively under the Deferred Action Program will be implemented by August 15, 2012. However, eligible applicants should begin assembling the following:

  1. At least 6 passport style photos;
  2. Travel records;
  3. Financial records;
  4. Medical records;
  5. School records, such as transcripts and diplomas;
  6. Employment records;
  7. Birth certificates (with translation) or Passport.

The Chandak Law Firm, PLLC assists clients in Raleigh, North Carolina and throughout Wake County, North Carolina.

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