The purpose of the provisional waiver
Let’s look at why the waiver was created in the first place. The provisional unlawful presence waiver is a new process to allow a foreign national who entered the United States without inspection (illegally) to leave the US and reenter again without being subject to the 3 or 10 year bar. A person who entered the US without inspection (also known as “EWI”) cannot apply for a green card unless that person leaves the US first. But, if a person has been in the US for more than 180 days and then leaves the US, the US government will not allow that person to come back into the US for the next three years. And if that person was in the US illegally for more than one year, that person cannot reenter the US for the next 10 years.
Let’s suppose a foreign national entered the US without inspection and does not have legal US immigration status. If that person were to marry a US citizen, that person should qualify for a green card based upon having a US citizen spouse. Since the person is not allowed to get a green card due to entering without inspection, the person must leave the US first in order to apply for a green card. And if the person is subject to the 3 or 10 year bar, that person would have to wait outside the US for 3 or 10 years.
Before the new provisional waiver became available in March, the old way to handle this was to leave the US, and then apply for an extreme hardship waiver at the US Consulate. If the waiver is granted, the person is allowed back in. But, if the waiver is denied, the person is trapped outside the US. The new provisional unlawful presence waiver allows a person in that same position to remain in the US and apply for the waiver without first being required to leave, and risk being subject to the 3 or 10 year bar. Then if the waiver is granted, he or she can go to the US consulate abroad and apply for a green card without having to worry about being subjected to the bar.
Reasons why waivers are being denied
The regulation says USCIS should deny a waiver if there is “reason to believe” that the person is admissible. But the USCIS has gone much farther than this. It has denied cases for things that do not cause a person to be inadmissible. It has denied cases simply because a person had a minor criminal arrest or conviction in the past, made any type of misrepresentation at the border, or other conduct that it believes may lead the person to be inadmissible. However, these activities by themselves do not necessarily render a person inadmissible, so there should be no “reason to believe” that they are inadmissible.
On a positive note, getting denied is not a disaster. Although there is no appeal when a case is denied, an applicant could just file another application and try again. Also, a denial does not result in any negative consequences. It just puts applicants back in the same position that they were already in before they filed the application. So there is nothing to lose by filing the provisional waiver application.
We expect that the USCIS will issue some clarification in the near future about how it intends to adjudicate these cases, and whether it will relax its incorrect interpretation of the “reason to believe” standard.