Are you an illegal immigrant whose waiver to stay in the country was denied because of your criminal past? Well, you’re in luck, because the Obama Administration may let you stay in the country anyway.
In a guidance distributed to congressional offices and obtained by The Daily Caller, U.S. Citizenship and Immigration Services announced that it is reopening cases in which applications for provisional unlawful presence waivers were denied to criminals.
According to the notice, USCIS had determined that applicants should not be denied an I-601A waiver due to a past criminal offense so long as it “falls under the petty offense or youthful offender exceptions or is not considered a crime involving moral turpitude.”Last week, USCIS began reopening waiver applications denied due ‘solely’ to a prior criminal offense before January 24, 2014, “in order to determine whether there is reason to believe the prior criminal offense might render the applicant inadmissible.”
The notice does not specify what types of crimes constitute a “petty offense,” and defines neither “youthful offender” nor “a crime involving moral turpitude.” Neither DHS nor USCIS responded to TheDC’s requests for comment.
The provisional unlawful presence waiver process allows illegal immigrants who are immediate relatives of U.S. citizens to overcome their inadmissibility due to their illegal status so long as they meet all the eligibility requirements outside of being in the country illegally. Prior to 2013, people had to return to their home countries to apply for these waivers.
Last January, then-Homeland Security Sec. Janet Napolitano announced a rule change that allowed immigrants to apply for the waiver in the United States before they depart for their home countries to complete the process. The change took effect last March.
“This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” Napolitano said at the time.
A year later, USCIS issued new field guidance on processing applications in which the applicant had a “criminal history.” That field guidance is being used to retroactively reprocess applications denied due to a criminal act.
Even before the new process was put in place about 90 percent of the waiver applications were approved, according to Jessica Vaughan, director of policy studies at the Center for Immigration Studies and a former State Department official. Vaughan says USCIS’s announcement last week is striking in that the Obama administration is now “second guessing” its immigration officers’ decisions on inadmissibility due to criminal records.
“It is really striking to me the extent to which they go to bend over backwards and help marginally qualified people and maybe even unqualified applicants work through the system,” Vaughan said in an interview with TheDC. “When there are 4.5 million pretty qualified legal immigrants waiting their turn overseas and managing to get through our system.”
Vaughan added that she has been amazed by the amount of time and effort the administration has devoted to helping people with criminal records get around the regulations.
“What I can’t understand is why they won’t trust the process that exists,” she said. “It’s not like these people are automatically all getting denied. What they are doing is basically steamrolling all of the checks and balances in our legal immigration system to screen out potentially unqualified people and working under the assumption that they all qualify, that nobody should be denied.”
According to Rosemary Jenks, director of government relations for NumbersUSA, the administration’s announcement about the new guidance is surprising.
“The fact that they are announcing it is unprecedented. The fact that they are essentially putting up a sign that says ‘petty criminals welcome,’” Jenks said.
“This is part of the overall effort to see how few people this administration can actually deport,” she added.
Read the guidance to congressional offices:
Dear Congressional Staff:
We wish to answer a question the public has posed regarding how we at U.S. Citizenship and Immigration Services (USCIS) adjudicate an application for a provisional unlawful presence waiver, Form I-601A (the “I-601A waiver”). This message will be issued to the public later this afternoon.
The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in the regulations and warrant a favorable exercise of discretion. The law provides that USCIS can deny an I-601A waiver application if USCIS has reason to believe that the individual is subject to another ground of inadmissibility, in addition to the unlawful presence ground that is the subject of the I-601A waiver application.
The public asked us: when the possible additional ground of inadmissibility is a prior criminal offense, does the existence of any prior criminal offense trigger the automatic denial of the I-601A waiver application, or must USCIS have reason to believe that the prior criminal offense would actually render the applicant inadmissible? There are some criminal offenses, such as certain petty offenses for example, that do not serve as a ground of inadmissibility under the governing statutes.
In response, USCIS has determined that it should not find a reason to believe that the prior criminal offense would render the applicant inadmissible and deny an I-601A waiver application based on a prior criminal offense if the criminal offense falls under the petty offense or youthful offender exceptions or is not considered a crime involving moral turpitude. This answer is reflected in USCIS’s January 24, 2014 field guidance.
Starting on March 18, 2014, USCIS will reopen, on its own motion, all I-601A waiver applications that were denied prior to January 24, 2014, solely because of a prior criminal offense, in order to determine whether there is reason to believe the prior criminal offense might render the applicant inadmissible. USCIS will re-adjudicate the cases where applicants have not been issued an immigrant visa, consistent with the new field guidance. USCIS will notify applicants (and their legal representatives) of this action within 60 days. Once the case has been reopened and reviewed, USCIS will continue to process the I-601A waiver application and either approve or deny it or request additional information from the applicant.
Applicants may check the status of their case online. For more information, please visit www.uscis.gov/provisionalwaiver.
We hope you find this information useful for your constituents.