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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