On March 4, 2013, U.S. Citizenship and Immigration Services implemented a new Provisional Waiver process for those individuals who are married to a United States citizen, or who have a USC parent or child, but the applicant is not legally eligible to file for a green card in the U.S. because they entered the country without inspection. This new process allows applicants to file the waiver application in the United States and await a decision before having to depart the U.S. for a consular interview.
Until now, if there was a reason to believe an individual that an applicant may be subject to grounds of inadmissibility related to any criminal issues at the time of their interview, the officer would determine they are automatically ineligible for the provisional unlawful presence waiver. Today, USCIS issued a Memorandum providing field guidance that is mandatory for all USCIS officials. The Field Guidance states the following key points that MUST be followed:
1. USCIS officers should review all evidence in the record, including that which is submitted by the applicant or attorney of record.
2. If the evidence shows the applicant falls within the “petty offense” or “youthful offender” exception to inadmissibility, or is not a Crime Involving Moral Turpitude (CIMT), the officer shall NOTfind the applicant inadmissible at the interview solely on the basis of the criminal offense.
3. The officer MUST continue processing the application to determine whether the other requirements are met for the provisional waiver, including a favorable exercise of discretion.
This new mandatory policy is extremely important and can be very helpful for those processing provisional waivers with a criminal history. It is imperative that you speak with an experienced immigration attorney before starting or continuing this process, so that you can be sure any criminal issues are properly addressed with USCIS when submitting the provisional waiver.
Please contact me at 404.949.8151, or [email protected]with any questions.
– Danielle M. Conley
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