For many intending immigrants, unlawful presence in the United States can trigger harsh bars to reentry. These inadmissibility grounds under INA §212(a)(9)(B) may result in 3- or 10-year bars, often forcing families to separate. However, legal pathways exist to overcome these barriers through waivers like I-601A (Provisional Unlawful Presence Waiver) and INA §212(d)(3) (Nonimmigrant Waiver for Temporary Visas). For applicants with criminal history, navigating these options requires a nuanced understanding of current USCIS field guidance and discretionary practices.
The Basics: I-601A vs. INA §212(d)(3):
- I-601A Waiver: This waiver allows certain immediate relatives of U.S. citizens or lawful permanent residents to apply for a waiver of unlawful presence before departing the U.S. for their consular interview abroad. It applies only to inadmissibility due to unlawful presence under INA §212(a)(9)(B).
- INA §212(d)(3) Waiver: This is a broader, discretionary waiver that allows nonimmigrants (e.g., B-1/B-2, F-1, H-1B) to overcome most grounds of inadmissibility, including criminal and immigration violations, for temporary entry to the U.S.
Field Guidance on I-601A and Criminal Offenses:
Since its inception in 2013, the I-601A program has undergone several updates. The most critical development relates to how USCIS officers evaluate applicants with criminal records. Under 8 CFR 212.7(e), USCIS may deny an I-601A application if there is “reason to believe” the applicant is inadmissible on grounds other than unlawful presence, particularly under INA §212(a)(2) (criminal grounds).
Past Denial Practices:
USCIS had a tendency to automatically deny I-601A applications if any criminal history existed—even in cases where the offense was minor, old, or arguably not a Crime Involving Moral Turpitude (CIMT). This blanket approach led to the rejection of many potentially approvable waivers, regardless of the nature or severity of the criminal charge.
Updated USCIS Field Guidance:
USCIS issued important clarification: if a criminal offense either:
- Falls under the petty offense or youthful offend exceptions (INA §212(a)(2)(A)(ii)); or
- Is not a CIMT under INA §212(a)(2)(A)(i)(I),
then officers should not deny an I-601A waiver solely on the basis of that offense.
- The seriousness of the offense;
- Evidence of rehabilitation;
- The purpose of the visit;
- Ties to the home country;
- How long ago the offense occurred.
1. Obtain Certified Dispositions: Every criminal offense must be documented with certified court records and police reports. These documents are essential to determine whether an offense qualifies for the petty offense or youthful offender exception.
2. Conduct a CIMT Analysis: Not all crimes trigger inadmissibility. A legal evaluation is necessary to determine whether an offense is a CIMT, and if so, whether it qualifies for an exception.
3. Consider the Petty Offense Exception:
- Maximum penalty of one year or less;
- Actual sentence of 6 months or less;
- Only one offense on record.
4. Build a Discretionary Case: For both I-601A and §212(d)(3), applicants must show positive equities, including family ties, rehabilitation, hardship to U.S. citizen or LPR relatives, and community involvement.
When to Use I-601 vs. I-601A vs. 212(d)(3):
Conclusion
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