USCIS to Reopen Denied I-601A Provisional Waivers

The U.S. Citizenship and Immigration Services (USCIS) announced its intent to voluntarily reopen certain denied I-601A waivers. This applies, as of March 18, 2014, to I-601A waiver cases that were denied prior to January 24, 2014, and only to those cases that were denied solely based on the applicant having a history that included a prior criminal offense.

Overview of I-601A Waivers

The I-601A provisional waiver is a way for a limited group of foreign nationals to overcome the procedural hurdles created by an extended period of unlawful presence in the United States. Such individuals are often ineligible to obtain immigration benefits from within the U.S., but would face either three- or ten-year bars on reentering the United States if they departed. The I-601A waiver provides a way for eligible individuals to request a waiver, or forgiveness, so that they would not be barred from returning to the U.S. after departure.

An individual must have either a U.S. citizen spouse or parent to be eligible to file an I-601A waiver. This procedure also is only available in the context of a case in which the individual will be applying for an immigrant visa at a U.S. consulate abroad. More information about this option is provided in the MurthyDotCom NewsBrief, Provisional Waivers of Unlawful Presence (11.Mar.2013).

Criminal Background Led to Automatic Denials

Until this recent change, if an I-601A waiver applicant had nearly any type of criminal record, the USCIS would automatically deny the application. This form of waiver application can only be used to overcome the unlawful presence ground of inadmissibility; it does not waive any other grounds of inadmissibility, such as those that can arise as the result of the commission of certain crimes. However, not all criminal matters cause a person to become inadmissible to the United States. Thus, immigration advocates questioned the USCIS practice of routinely denying I-601A application without determining whether the applicant’s criminal history actually precluded approval of the waiver request.

Reopen to Determine Criminal Inadmissibly

In response to the questions raised about this practice, effective January 24, 2014, the USCIS agreed to take a closer look at the criminal records of applicants to determine whether their cases should be denied. Additionally, the USCIS is reopening all such denials on its own motion (i.e. without the applicants having to request reopening or having to file their own motions.) The USCIS will review these cases to determine whether there is reason to believe that a prior criminal offense may render an individual inadmissible. The cases will be readjudicated and the applicants will be notified of the decision.

Conclusion

This decision of the USCIS to review and reopen all applicable I-601A denials is not only a fair, but also a positive decision. It should assist in the ability of such individuals to move forward with their cases and legally reunite with their families. Individuals who have questions about the I-601A or other types of waivers may request further guidance by contacting the Murthy Law Firm.

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