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Klinke Immigration Blog

Reason to Believe New Guidance on I-601A Waivers

No, it’s not just a song by Rod Stewart. “Reason to Believe” is a standard created by USCIS when deciding whether or not a provisional waiver can be adjudicated. Let’s take a step back and talk about provisional waivers first.

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. 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.

In the beginning, there was a lot of excitement 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.

And then denials started coming in. I-601A waivers were being denied for seemingly little things – driving without a license, or a juvenile conviction for disorderly conduct, for example. Anytime an applicant had a run-in with law enforcement there was a problem.

USCIS said that there was a “reason to believe” that the applicant could be inadmissible under a criminal ground and they were not going to adjudicate the I-601A waiver because of the criminal infraction. This was particularly frustrating because immigration attorneys knew that these minor criminal issues were not something that required a waiver, but USCIS wouldn’t even listen to the legal argument.

Last week, USCIS released new guidance (PDF, opens in new window) on what they will look at regarding criminal records and “reason to believe.” If the criminal activity was a juvenile offense or classifies as a petty offense, there is no longer a “reason to believe” that a waiver for criminal grounds would be needed.

A juvenile offense is one classified as such by the juvenile court. A petty offense isn’t as obvious. A petty offense is where someone has been convicted of 1) one crime; 2) one where the maximum possible sentence was one year or less and; 3) the actual sentence was for six months or less of incarceration.

Now we know that juvenile offenses and petty offenses will not be a roadblock to having an I-601A waiver granted. There are still a lot of kinks to be worked out with I-601As, but this is a good first step in the right direction.

– Tracie