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National Benefits Center Finally Addresses “Reason to Believe” Denials of I-601A Provisional Waivers

On March, 4, 2013, USCIS unveiled the Provisional Waiver Program allowing certain qualified applicants to apply for the I-601A Waiver of Grounds of Inadmissibility. One of the program requirements is that only those whose sole ground of inadmissibility is unlawful presence are eligible to apply for the program. Thus, those who might be inadmissible because of misrepresentation or certain crimes or who have final orders of removal cannot apply for the program. Unfortunately, the last seven months have taught us that USCIS is taking a too cautious – and highly improper – approach to denying applications based on “reason to believe" that the applicant may be subject to other grounds of inadmissibility.

This unofficial policy has been loudly criticized by attorneys and pro se applicants alike. For example, many individuals report that their I-601A application was summarily denied because they gave a false name (not necessarily a fraud issue) or because they have one DUI from many years ago (also not a crime that would typically render one inadmissible), or if they’ve been convicted of a minor crime that would be excused under the “petty offense" exception, etc. The government finally heard us.

On September 26-27, 2013, Catholic Legal Immigration Network, Inc. (CLINIC) conducted a two-day training in Kansas City on provisional adjudication of unlawful presence waivers. The training included a presentation by Robert Blackwood, Assistant Section Director for Adjudications at the National Benefits Center (NBC), the Center that is responsible for adjudicating Provisional Waiver applications. One of the big questions concerned the high rate of denials – 48% of all denials! - based on “reason to believe" standard.

Mr. Blackwood informed the attendees that as of six weeks ago, NBC stopped issuing any "reason to believe" denials and is suspending adjudication of cases where this issue is present while USCIS and DOS reconsider the current policy and decide how to proceed in the future. During this time, cases that involve a potential "reason to believe" issue are being held in abeyance, with no action taken on the case. Currently, NBC is holding about 1,300 such pending applications and will hold them – not just deny - until further guidance on the "reason to believe" policy.

While we do not know how long it will take the government to formulate this new policy or when they will begin adjudicating the “reason to believe" cases, we applaud the government for taking proactive steps to recognize and to remedy this pervasive problem and restore the program to continue to meet its originally stated goals.

As always, we strongly encourage you to speak to us or other attorneys experienced in waivers to discuss the pros and cons, eligibility, and case strategy for submitting a winning I-601A Waiver application.

Provisional Waiver Program Statistics, March 4 – September 14, 2013:

23, 949 applications sent to Lockbox

17,996 applications accepted by Lockbox

5,953 application rejected by the Lockbox (possible reasons: no applicant signature, no proof of I-130 approval, no proof of NIV fee paid, or applicant is under 17).

The NBC has 12,098 applications in the pipeline

Approximately 2,300 ready for processing

Approximately 600 applications are adjudicated weekly

There are 45 adjudicators who are handling about 13 applications per week (about 2.6 per day)

Decisions:

3,497 approvals (59%)

2,292 denials (39%)

103 admin closures (application returned for various reasons, e.g., filed I-601 instead of I-601A) (2%)

Denials:

1,093 (48%) for “reason to believe"

937 (41%) for failure to establish hardship

Other reasons: abandonment, applicant in proceedings, pending adjustment of status application, lack of qualifying relative, pre-2013 consular interview scheduled, and existing or final order of removal.

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