Filing an I-601A provisional waiver is a way that a family member who is eligible for a green card is allowed back into the country after leaving to attend a consular interview abroad.
To be typically eligible for a Provisional Waiver, you as the applicant must be an immediate relative of a U.S. citizen or lawful permanent resident, meaning a parent, spouse, or unmarried child under 21 and
physically present in the U.S;
have an immigrant visa case which is pending with the Department of State;
paid the required visa fees
are admissible to the United States meaning that you have not been involved in crime or fraud;
can provide evidence that if you are not granted the waiver and green card, your U.S. citizen spouse or parent will be exposed to extreme hardship;
have not initiated any “Reason to Believe” (RTB) that you have taken part in an activity that would result in inadmissibility like any criminal acts.
Since the beginning of the I-601A Provisional Waiver, USCIS has denied all I-601A waiver applications if the applicants had any indications of a criminal history which included DUI. This does not include citations for minor traffic offences like parking violations, stop sign/red light violations, registration and licenses that have expired or any similar offenses.
Officers were told to act appropriately if there was an RTB that an individual would be inadmissible so typically the Provisional Waiver would be refused. USCIS has also highlighted that RTB was to prevent a heartbreaking experience when an applicant proceeded to his or her home country with a Provisional Waiver approval but has then had a visa denied based on the consulate finding additional grounds for inadmissibility.
Recently, the USCIS has reviewed its policy and it now states that if the applicant’s criminal offense can be classified as an exception when the I-601A adjudication takes place under INA section 212(a) and is not a CIMT which is a Crime that Involves Moral Turpitude but is considered a “petty offense” or “youthful offender” that the application may no longer be inadmissible. USCIS will not now automatically deny an application for a provisional waiver as a result of an RTB as long as the documentation submitted shows that the applicant’s criminal offense:
falls within the petty offense or youthful offender exception;
is not a CIMT.
Under exception of a petty offense, the offender is not considered inadmissible if:
only a single crime has been committed;
the maximum penalty is no more than 12 months imprisonment;
the offender did not receive imprisonment of more than 6 months.
Under the exception of youthful offender the person is not inadmissible if:
only one crime has been committed;
the crime was committed when the applicant was under 18;
the crime was committed at a time that was at least 5 years before the application date for admission or a visa application into the US.
Despite this updating of policy all Provisional Waiver applicants with a minor criminal history still have to be careful when gathering and submitting evidence. This doesn’t mean that the applicant with the criminal conviction should just expect to be granted a I-601A Provisional Waiver but he or she should submit a memorandum with their I-601A waiver application clearly addressing why their criminal conviction does not warrant an inadmissibility; or why the criminal conviction comes under the “youthful offender” or “petty offense” exception of INA section 212(a)(2)(A)(ii).
The USCIS officer is now expected to continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful presence waiver, including if the applicant deserves to be offered some discretion.