Just about one year ago, USCIS began implementing a program permitting certain immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children) who are physically present in the United States to request a provisional unlawful presence waiver prior to traveling abroad for consular processing of their immigrant visa applications. Under the program, if USCIS has “reason to believe” that the applicant may be inadmissible on grounds other than unlawful presence, the agency would not approve the waiver. For months, concerns have been raised that USCIS, taking a very broad approach to the standard “reason to believe,” has been unnecessarily denying I-601A provisional waivers. A common class of “reason to believe” denials has been those based on criminal incidents that do not render the foreign national inadmissible.
In a recent field memo, USCIS advises and reminds its officers that all evidence in the record should be carefully reviewed to make sure officers are not inadvertently excluding someone from the process based on a minor infraction, a petty offense, or one that falls under the youthful offender exception. Furthermore, the memo reminds officers that they should not find a “reason to believe” that the individual may be subject to inadmissibility solely on account of such offense, and should continue to determine whether the applicant meets the other requirements for the provisional waiver, including whether he or she warrants a favorable exercise of discretion.