On January 24, 2014, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum clarifying the “reason to believe” standard for denying I-601A provisional unlawful presence waiver applications involving certain criminal offenses.
Pursuant to the Policy Memorandum, USCIS officers are instructed to review all evidence in the record to determine if the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception, or (2) is not a crime that would render the applicant inadmissible. If this test is met, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility at the time of the immigrant visa interview solely on account of that criminal offense. USCIS officers should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful presence waiver, including whether the applicant warrants a favorable exercise of discretion.
If your provisional waiver was denied based on the “reason to believe” standard or you were advised against filing based on the same, you may now be eligible to file an I-601A provisional waiver application pursuant to the new guidance from USCIS. Provisional waivers are very delicate matters and we recommend contacting experienced immigration counsel before making any filings with the USCIS.