It was with the greatest enthusiasm that we announced U.S. Citizenship and Immigration Services’ (“USCIS”) implementation of the I-601A provisional unlawful presence waiver at the beginning of last year. Since that time, that excitement has dissipated and been overwhelmed by deep disappointment at the reports of an alarming rate of I-601A denials based on a “reason to believe” that the applicant was inadmissible on grounds other than unlawful presence. These denials, which contained little analysis of the evidence and were oftentimes issued without USCIS first providing an opportunity for the applicant to address the reasonableness of the reason to believe finding, indicated that USCIS was taking a very broad approach to the reason to believe standard to the extent of rendering the existence of this immigration benefit meaningless for many applicants. In particular, reason to believe denials have seemed a foregone conclusion when the applicant possesses a criminal record of arrest or conviction, notwithstanding the submission of evidence demonstrating that either the nature of the crime or the sentence imposed would preclude a finding of inadmissibility based on criminal grounds.
Thanks in large part to the efforts of the American Immigration Lawyers Association, USCIS released new guidance on Friday focusing on the application of the reason to believe standard specifically in the context of criminal offenses. This guidance reminds immigration officers that they must consider all evidence in the record, and provides that if that evidence indicates that the applicant’s criminal offense: 1) is not a crime involving moral turpitude (“CIMT”) that would render the applicant inadmissible, or 2) falls within the “petty offense” or “youthful offender” CIMT exceptions, then officers ought not to conclude that there is a reason to believe that the applicant would be inadmissible for having committed a CIMT based solely on account of his or her criminal offense.
While this guidance is most welcome, it unfortunately falls short, failing to address the other grounds of inadmissibility that have triggered reason to believe findings, such as misrepresentation of a material fact. Nonetheless, if this guidance is any indication of USCIS’s dedication to ensuring that the benefits promised by the unlawful presence waiver program are realized, we can once again feel optimistic about the program’s future.