According to the American Immigration Lawyers Association Liaison, the USCIS has denied applications for provisional unlawful presence waivers (Form I-601A) where there is any criminal issue (even if it would not trigger inadmissibility) or where there are allegations that a false name or date of birth was used when the applicant was apprehended for attempting to enter without inspection. USCIS has denied these applications on the grounds that it has “reason to believe” the applicant may be inadmissible for reasons other than unlawful presence.
According to a recent update by Robert Blackwood, Assistant Section Director for Adjudications at the National Benefits Center, the NBC stopped issuing “reason to believe” denials as of six weeks ago. It has suspended adjudication of cases where this issue is present while the Dept. of State and USCIS re-consider their current policy. During this time, cases that involve a a potential “reason to believe” isssue are being held in abeyance, with no action taken on the case. There are currently 1300 I-601A waiver applications affected by this issue and they will not be adjudicated until there is further guidance on the “reason to believe” policy.
Nevertheless, given this very broad interpretation of the “reason to believe” standard thus far, it is extremely important that all applicants be absolutely sure about their immigration and criminal history before proceeding with the I-601A Provisional Waiver application.
1. Immigration History: You must be cognizant of every lawful and unlawful entry into the United States, whether or not you were caught. The USCIS conducts a thorough background check and can and will obtain records of attempted border crossings, including a voluntary return or “catch and release.” Go over your immigration history with an experienced immigration attorney knowledgeable on waivers and grounds of inadmissibility before submitting the I-601A Provisional Waiver.
2. Criminal History: “Arrest” does not always include “jail.” USCIS needs to know whether you were ever arrested, cited, charged, indicted, convicted, fined, or imprisoned for violating any law or ordinance in the U.S. or anywhere else in the world, regardless of whether the case was dismissed, including traffic violations.
3. Department of Homeland Security Freedom of Information Act Requests: If you cannot remember the exact details of your immigration history, consider filing Freedom of Information Act (FOIA) requests with the various DHS agencies. In any FOIA request is it helpful to be specific about the documentation and information you are seeking and to provide all possible variances of your name including phonetic spellings to facilitate the request. If the FOIA response indicates that no records were located, consider filing a FOIA appeal which may produce better results.
4. Department of State FOIA Request: If you have ever been denied a visa and do not have records showing the reason(s) for the denial, consider filing a FOIA request with the Department of State. Remember to obtain third party authorizations from any person that may have been a party to the interview or application. DOS may limit the information it will provide, but information as to all documents the applicant submitted are discoverable.
5. FBI Background Check: If you have ever been arrested or detained by law enforcement but do not have records pertaining to your case, obtain a FBI criminal history summary. Please note, however, that the FBI records should include incidents at the border, but might not.
6. Police Reports and Court Records: If the FBI background check reveals a criminal issue or “hit,” you must obtain the police reports and any court records relating to the incident. Arrest records may be obtained from the local law enforcement agency where the arrest was made. Court records can be obtained from the court where the case was heard or dismissed after some sort of pre-trial action.
7. Traffic Records: If you cannot remember the details or have records of possible traffic violations, traffic records can be obtained from any state DMV office, and should include citations from other states, unless the client had a driver license from another state. Traffic records may include citations for driving without a license, providing a false driver’s license or name, or even reckless driving and DUI.
Please find a chart below listing common FOIA request points of contact at various government agencies:
|
Record/Request Type |
Where to Submit FOIA Request |
| A-file | ( U.S. Citizenship and Immigration Services (USCIS) ) |
| I-130 Records | ( USCIS ) |
| N-400 | ( USCIS ) |
| Petition Status | ( USCIS ) |
| Deportation Records; Detention and Removal Records | ( USCIS ) |
| Medical Records (While in Detention) | ( Immigration and Customs Enforcement (ICE) ) |
| Inquiries or Resolution Regarding Difficulties Experienced During Travel | ( Department of Homeland Security (DHS Trip) ) |
| Visa/Passport | ( Department of State (DOS) ) |
U.S. Customs and Border Protection (CBP) Trusted Traveler Programs:
|
Enrollment Centers: ( FAST Canada ) ( FAST Mexico) ( Global Entry) ( NEXUS ) ( SENTRI ) |
Apprehension by Border Patrol between Official Ports of Entry
|
( CBP ) |
| CBP Background Investigation | ( CBP ) |
| CBP Contracts | ( CBP ) |
| Detention by Border Patrol or at Ports of Entry | ( CBP ) |
| Expedited Removal by Border Patrol or at Ports of Entry | ( CBP ) |
| CBP Human Resources | ( CBP ) |
| Importer Trade Activity (ITRAC) Requests | CBP (Importer Trade Activity (ITRAC) Requests ) |
| I-94 Records | ( CBP ) |
| Passenger Name Record (PNR) (Travel Industry Reservation Data) | ( CBP ) |
| Records Regarding My Inspection or Examination upon My Arrival at a U.S. Port of Entry | ( CBP ) |
Information Regarding Entry and Exit
|
( CBP ) |
| Voluntary Return | ( CBP ) |