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Expanded Provisional Waiver Program: the Good, Bad, and the Uncertain

On Behalf of | Sep 28, 2016 | Firm News

The final rule expanding the I-601A provisional waiver process went into effect on August 29, 2016.

The most significant and most publicized change in the rule allows applicants with U.S citizen or lawful permanent resident (LPR) spouses and parents to qualify for provisional waiver processing. Accordingly, USCIS estimates that an additional 44,061 newly eligible provisional waiver applicants and their family members will benefit from this expansion of this rule within the next ten years. While this is a positive development in provisional waiver processing, other provisions in the final rule also create new uncertainties in the provisional waiver processing.

The final rule creates new uncertainty by way of the elimination of the “reason to believe” standard.  Under the 2013 rule, I-601A adjudicators evaluated if the applicant could be subject to a ground of inadmissibility other than unlawful presence.  Of the “reason to believe’ standard, commentators argued that USCIS often applied the standard too rigidly by denying applications on mere suspicion, rather than actually adjudicating the relevant inadmissibility concerns. Commentators also criticized the lack of issuance of Notices of Intent to Deny or Requests for Evidence on the basis of “reason to believe” standard. In response to the comments, DHS the “reason to believe” standard in the adjudication of the provisional waiver will be eliminated under the final rule.

What the elimination of the “reason to believe standard” means is that any additional grounds of inadmissibility will be determined at the consulate level. This can create much more uncertainty at the time of the immigrant visa interview.  Under the 2013 rule, applicants with approved I-601A waivers generally attended their immigrant visa interviews with a level of assurance that most other grounds of inadmissibility had already been vetted by USCIS prior to the applicant’s departure from the U.S.. That vetting process of the “reason to believe” standard presumably also impacted the level of review by the consular officers. Now, with the elimination of the “reason to believe” standard, consular officers will logically be expected to more carefully vet cases for additional grounds of inadmissibility at the time of the immigrant visa interview. In the event of the finding of an additional ground of inadmissibility at the consulate level, the final rule retains the provision of automatic revocation of the I-601A approval, leaving a surprised and devastated applicant to file an I-601 abroad.

In the event of the revocation of the I-601A and the filing of the I-601 abroad, the final rule clarifies that USCIS is not bound by extreme hardship findings on an I-601A. The reasoning is that the additional inadmissibilities affect the discretionary eligibility assessment and may alter the totality of the circumstances evaluation of the waiver. This change in adjudication of the provisional waiver therefore results in greater uncertainty at the consulate level and at the time of the immigrant visa interview.

Given the elimination of the “reason to believe” standard, I-601A applicants are encouraged now, even more than ever, to consult with an experienced immigration attorney who can vet additional grounds of inadmissibility in advance of the filing of the I-601A waiver to reduce the level of uncertainty to an applicant at the consular level.

Please contact Wilson Law Group if you believe you or a loved one might benefit from the expansion of the provisional waiver program.