Chances of Provisional Waiver Approval? About 60-40

tracksThanks to CLINIC (the Catholic Legal Immigration Network), we now have a clearer picture of how U.S. Citizenship and Immigration Services (USCIS) is responding to requests for provisional waivers (on Form I-601A). The approval rate thus far is 59% — hardly encouraging for prospective applicants. (See “Update from the NBC on Provisional Waivers.”)

The statistics confirm what many immigration attorneys have been observing: The issue of whether USCIS finds “reason to believe” that the applicant could be inadmissible (for reasons other than unlawful presence) accounts for the highest number of denials, at 48% of the total.

According to attorney experience, “reason to believe” is taken extremely broadly by USCIS, with minimal or no consideration given to whether the perceived issue could, if true, actually amount to a ground of inadmissibility. A minor traffic violation on a person’s record, could, for example, lead to denial of the provisional waiver – but is not actually a ground of inadmissibility.

The second highest reason for denial was failure to establish extreme hardship to a qualifying U.S. relative. That’s more in line with what one might expect as a reason for denials. Proving extreme hardship in any immigration context can be tricky, depending as much on one’s ability to weave facts into a compelling narrative and the sympathies of the person making the decision as on whether one applicant’s case is actually any more deserving than another’s.

Should this news discourage people from applying for provisional waivers? In the short term, probably yes. Immigration attorneys are already gearing up to try to convince USCIS to shift its approach on this matter, and the dust will need some time in which to settle.

But if you’ve got unlimited funds, or are urgently in need of a green card, applying now isn’t the worst idea, either. It won’t stop you from applying for another provisional waiver if you can show new information in support of your request. And it won’t stop you from taking a chance and leaving the U.S. to apply for your waiver at an overseas consulate. (If this isn’t making sense to you, then please read the more extensive discussion of how to get a waiver or provisional waiver of unlawful presence on the “Waivers and Inadmissibility” page of Nolo’s website.)