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The New Provisional Waiver – A Promising Program Foundering

For a year we waited for USCIS to put into effect changes it had discussed in processing the needed waiver for the 10 year bar found in INA § 212(a)(9)(B) for those people married to U.S. Citizens who had entered the United States without inspection.  The announcement of the change to a “provisional” waiver program brought with it much anticipation and joy to those who would most benefit from this change.  Nothing was worse than leaving your spouse behind in the United States, many times with young children, for an uncertain number of months, with a strong possibility you would not come back home for 10 years.  And, as a result, many people chose not to take advantage of the waiver because of the fear of the unknown.

The Provisional Waiver regulation announced on January 2, 2013, and effective on March 1, 2013, now made it possible for foreign spouses of U.S. citizens to apply for the permanent residence without the risk associated with departing the U.S. without having the forgiveness offered by the waiver in their hand.  Being assured that you would know of the timing of your return after a brief trip to a consulate was nothing short of gift from heaven for many people.   Predictably, many couples and their lawyers prepared their waiver packages and submitted them to the USCIS as soon as they could after March 1, and many have been waiting patiently for what were promised to be approval notices.  Those approval notices, coupled with their trip abroad, would finally yield what many have desired for so long – normalcy in their lives and permanent residence.

Sadly, the hoped for promise of these provisional waivers has become nothing short of a major disappointment and some say outright fraud on the participating immigrants and their attorneys.  The USCIS has been denying many provisional waivers, not on the merits, but on technical grounds that have nothing to do with the waiver process.  A typical provisional waiver “denial” letter from the USCIS states that the waiver will not be adjudicated because the applicant “may” have another ground of inadmissibility.  For example, one waiver was not adjudicated because the applicant had given a different birth date 15 years ago when he was caught coming into the U.S. (saying he was older than he was to avoid not being sent back) and was returned to Mexico.  As any immigration lawyer will tell you, while the giving of a false date of birth “may” be a ground of denial for misrepresentation, it is not a definite denial, and one that can be dealt with at the consulate and likely without another waiver being needed.   Another example is the “denial” of the adjudication of a waiver based upon a misdemeanor offense that clearly falls within the petty offense exception, something any immigration lawyer (and consular officer) knows will not bar an applicant from being admitted to the United States.
Perhaps more disturbing is the USCIS’s new approach to adjudicating provisional waivers that ignores evidence in the filings.  A recent denial stated that the affidavit from a mental health professional of the psychological issues of the U.S. Citizen spouse were not supported by other “documentary” evidence, and thus could not serve as a basis for the establishing hardship.  Obviously, such a position ignores long-standing case law and policy on the submission of evidence.  This is compounded by the greater problem of the inability to challenge provisional waiver “denials” on appeal. Applicants are left with only refiling and re-paying for the waiver again to try to correct the erroneous decision.

Finally, the grant rate of I-601 waivers from the USCIS office in Mexico (which adjudicated the vast majority of the waivers under INA § 212(a)(9)(B)), was well over 80%.  USCIS will not release the grant rate under the provisional waiver program, but knowledgeable and experienced attorneys are seeing approval rates at or below 50%.  Let’s be fair, perhaps some people are filing cases now that were not as strong as those filed under the original consulate-based program.  But there are widespread reports of cases that are clearly approvable under any standard now being denied for vague and obtuse reasons.

Given the announcement from Secretary Napolitano and the cheery presentation of the new provisional waiver program by various DHS officials, it is alarming and ultimately disheartening to see a program that once worked well being turned into yet another poorly functioning USCIS-run nightmare.  Unless USCIS gets its act together, properly trains the adjudicatory staff, gets out of the consulate’s job of determining inadmissibility, and reinstitutes a culture of yes, the provisional waiver program will cause fewer people to attempt to secure the permanent residence for which they are eligible, and further delay any current-law based fix to their immigration status.  It will become another in a long line of Bait and Switch immigration proposals that fall victim to over-zealous and under-educated enforcement – and it will fail.

Perhaps someone at USCIS will realize how important this program could be to more than a million American citizens and their foreign national spouses. Perhaps someone at USCIS will “buck” the system and demand real adjudicatory action from its employees.  And, perhaps, someone at USCIS will ensure proper training and push for the success of a program that could change the nature of the debate on immigration reform.  I fear the problem is that that “someone” does not really work for USCIS.

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