Good News for Provisional Waivers: USCIS to Reverse Trend to Deny I-601A Provisional Waiver Applications

Last 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.

The NBC also announced that the processing time for provisional waiver applications is between 90-103 days, a relatively quick turnaround. The provisional waiver process should proceed normally for those who have never been convicted of a crime and can show the extreme hardship to a U.S. citizen spouse or parent.

The government generates weekly reports that indicate how many provisional waiver applications were adjudicated, and these reports show the efficiency of the process is improving. In addition, a number of I-601 applicants who were denied a provisional waiver by the USCIS, may have subsequently traveled abroad to a US consulate in their home country to directly apply for the I-601A waiver, despite the fact that the USCIS previously denied the application. Although a US consulate is not bound by a USCIS decision to deny a I-601A waiver application, is still risky for the foreign national to depart from the US and risk being subject to the 3 and 10 year bars against reentry into the United States. The NBC is sharing its data with the US Department of State to determine how many applicants were denied by the USCIS and subsequently approved by a US consulate abroad.

Moreover, being denied is not the end of the world. It is important to understand that when an I-601A provisional waiver applicant is denied by the USCIS, that applicants can file another I-601A, and the NBC will review the new application against the applicant’s previous application.

Recent data from the NBC shows that 59% (3,497) of applications were approved, 39% (2,292) were denied, and 2% (103) of cases were administratively closed for various reasons such as filing the wrong application form.