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If there’s anything that can be said for sure about U.S. immigration law, it’s that reading the law or regulations doesn’t necessarily tell you how the U.S. government will act on what’s said there. That is definitely the case with the “provisional waiver” of unlawful presence that was instituted in early 2013.
The idea of these waivers, as described in “Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar,” was to undo the legal trap created for certain green-card eligible people who had entered the U.S. without inspection (illegally). They couldn’t legally apply for a green card within the U.S.; but if they left the U.S., the only way to return without facing a three- or ten-year penalty bar was to request a waiver – and who wants to take a chance on that waiver being granted when already outside the U.S. and thus unable to return for a terribly long time?
So the provisional waiver process was designed to let people in this trap apply for the waiver before, not after leaving the United States. So far, so good.
But to keep things simple, the new waiver regulations said that, “If USCIS determines that there is reason to believe that the alien may be inadmissible to the United States at the time of his or her immigrant visa interview based on another ground of inadmissibility other than unlawful presence, USCIS will deny the request for the provisional unlawful presence waiver.”
It turns out that, in practice, that “reason to believe” language is a loophole big enough to drive a truck through. In the experience of many immigration attorneys, USCIS is denying any and all waivers that have the slightest hint that the person might be inadmissible, for example because of:
It’s worth remembering that a USCIS denial is not the end of the line. In fact, the regs specifically state also that, “USCIS's determination on the provisional unlawful presence waiver is not a conclusive finding of inadmissibility. It also is not an assessment of whether a particular crime or pattern of conduct would ultimately bar an individual from obtaining a legal status under the immigration laws.”
Sure, but a USCIS denial does mean that the person is back in the same old trap, facing the uncertainty of a trip abroad in order to attempt to claim U.S. permanent residence.
Now, for the possibly good news. USCIS knows that its rate of denials is so high as to discourage a lot of potential applicants. The agency has promised to issue some clarifications. So if you’re thinking of applying for a conditional waiver along with a green card application, now might be a good time to sit tight or consult with an immigration lawyer.