As a Miami immigration attorney, I often encounter questions about the “Reason to Believe” standard as applied to recently enacted provisional waiver for unlawful presence. Here is a quick FAQ on some of the most common questions that I encounter.
What is the “Reason to Believe” standard?
The “Reason to Believe” standard is a standard created by USCIS in deciding whether or not a provisional waiver can be adjudicated.
What is a provisional waiver?
In certain immigration cases, one can apply for a “provisional waiver” of unlawful presence. These waivers were created to undo the legal trap created for certain green-card eligible people who had entered the U.S. illegally. As a Miami immigration lawyer, I can attest to the fact that these situations happen quite a bit. An immigrant who enters the U.S. illegally cannot legally apply for a green card within the U.S.; but if they leave the U.S., the only way to return without facing a three- or ten-year penalty bar is to request a waiver. The problem is – few people want to take a chance on the waiver being granted when they are already outside the U.S. and thus unable to return for a terribly long time.
The provisional waiver process was designed to address this problem. Under the provisional waiver process, people would be allowed to apply for the waiver before, not after leaving the United States.
What is the name of this provisional waiver?
The name of this provisional waiver is the I-601A. About 13 months ago, USCIS announced that certain people who entered the United States without inspection could proactively apply for a waiver for unlawful presence.
What are the limitations of the I-601A?
The I-601A was created for a very specific type of case – one where the qualifying family member who would suffer extreme hardship was a U.S. citizen, and where the only infraction or ground of inadmissibility was one entry to the United States without authorization.
If someone had other grounds of inadmissibility, the I-601A could not be used; a traditional I-601 waiver would have to be filed once the person left the United States.
What were some of the issues with the I-60A process?
There was a lot of positive buzz about the I-601A process. Families would be able to be together in the U.S. while the case was pending. When it came time to leave for the visa interview, the trip abroad should only take a week or two – not six months or longer. However, the denials of I-601A waivers started flooding in. Applicants were being denied for seemingly little things – driving without a license, or a juvenile conviction for disorderly conduct, for example. As a matter of fact, anytime an applicant had a run-in with law enforcement there was a problem. Some denials were initiated on the sole basis of the applicant having visible tattoos.
What were some reasons for the I601-A denials?
Under the USCIS standard, if the USCIS had “reason to believe” that the applicant could be inadmissible under a criminal ground, they refused to adjudicate the I-601A waiver because of the criminal infraction. This was particularly frustrating because many Miami immigration attorneys felt as if these minor criminal issues were not something that required a waiver. However, by refusing to adjudicate the I-601A waiver, the USCIS effectively refused to listen to any legal arguments.
Has the “Reason to Believe” standard changed since its inception?
Yes. In January 2014, the USCIS announced a new policy ending mandatory denials for I-601A hardship waivers in the case of applicant’s with criminal backgrounds. In addition, on March 18, 2014, USCIS announced that it would be reopening all I-601A waiver applications that were denied prior to January 24, 2014, if the denials were based solely because of a prior criminal offense committed by the applicant.
Why is this change so significant?
This welcome change in the “reason to believe” standard is a relief for the many applicants whose I-601A provisional waiver applications were denied because U.S. Citizenship and Immigration Services (USCIS) supposedly had “reason to believe” that the applicants were subject to not only the unlawful presence ground of inadmissibility (the one addressed by the I-601A waiver) but an additional ground of inadmissibility, in many cases a minor criminal conviction. In fact, these criminal convictions were in many instances so minor that they could not possibly have been a ground of inadmissibility.
The USCIS issued new field guidelines telling its officers to stop denying cases where the criminal convictions simply do notamount to a ground of inadmissibility. These include petty offenses, juvenile offenses, or crimes that are not considered crimes of moral turpitude.
What about applicants whose I601-A waivers were previously denied?
The USCIS also announced that it would take another look at all I-601A waiver applications that it denied before January 24, 2014 on the sole basis of a criminal offense. In all cases, I would caution that just because your case is reopened, it does not mean your case will be automatically approved. All facts will be reviewed by the USCIS to determine if the waiver should be approved based on your specific circumstanced. If you have been not filed a I-601A waiver because of a minor criminal offense, this change in standard means that you should re-consider filing. I strongly suggest you consult with a Miami immigration attorney who will be able to assist you in this matter.
For more information on the “reason to believe” standard or the I601-A waiver, please contact Miami immigration attorney Michael G. Murray, Esq. at (305)895-2500 or visit our website at www. mmurraylaw.com .