Articles Posted in Provisional Waiver

Thumbnail image for outcast-2-1159994-m.jpgOn November 20, 2014, President Obama’s executive action on immigration effectively brought millions of our country’s unauthorized immigrants out from the shadows and onto a legitimate path toward citizenship. While the executive action promises to relax the threshold for extreme hardship while expanding the scope of who can experience hardship, the elements of what constitutes hardship stands to change very little in the world of Provisional Waivers.

Current doctrine

Under current doctrine, practitioners must show that 1) “refusal of admission to the United States would result in extreme hardship to the U.S. Citizen or Legal Permanent Resident spouse or parent, and 2) a waiver is warranted as a matter of discretion.” Not surprisingly though, extreme hardship is not statutorily defined and practitioners and their clients must instead rely on case law to decipher what rises to the level of extreme hardship. Guideposts identified by USCIS however, such as in the Matter of Andazola-Rivas, where the court found that “[e]xtreme hardship does not need to be unique or unusual,” and in the Matter of Nagi, holding, “extreme hardship is hardship that is greater than common consequences of the bar to admissions, i.e. separation, financial difficulties, etc…,” have proven to be quite helpful. With this in mind, practitioners have decidedly focused on demonstrating three to four factors that either in themselves, or in aggregate, rise to the level of extreme hardship: economic hardship, psychological or emotional hardship and physical hardship.

statue of liberty head.jpgLast month, we learned that the USCIS was denying many I-601A provisional waiver applications on the basis that there was a “reason to believe” that the applicant may be inadmissible to the United States. In our opinion, this USCIS policy was going too far since applications were being denied when the applicant was not actually inadmissible, but rather the USCIS simply had a “reason to believe” the person may be inadmissible. That policy is unfair to people who are eligible for the provisional waiver but were denied anyway.

The USCIS has announced it is revising this policy and plans to reverse it. As of six weeks ago the National Benefits Center (NBC) has suspended adjudication of Provisional Waivers where there is a reason to believe that the applicant is inadmissible for any reason other than unlawful presence. This is good news because adjudicators were denying all applications where the applicant had any type of criminal conviction but all criminal convictions do not make someone inadmissible. Almost 50% of all denials were based on reason to believe. A new policy is in the works to ensure that Provisional Waiver petitions are given a fair review. Currently, the provisional waiver approval rate is at 59% and the NBC is hopeful that once the process is streamlined the approval rate will increase significantly.
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construction-road-closed-ahead-306208-m.jpgSince the provisional unlawful presence waiver program was initiated in March 4, 2013, we have seen that the USCIS has been denying a lot of these waiver applications for reasons that don’t seem to make sense. The regulations say that “If USCIS determines that there is reason to believe that the alien may be inadmissible to the United States at the time of his or her immigrant visa interview based on another ground of inadmissibility other than unlawful presence, USCIS will deny the request for the provisional unlawful presence waiver.” It looks like the USCIS is taking this too far in denying cases for almost any reason.

The purpose of the provisional waiver
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