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U.S. waivers: an update

People make the assumption that there have been sweeping changes in U.S. Immigration laws and procedures in the post-911 world.

People make the assumption that there have been sweeping changes in U.S. Immigration laws and procedures in the post-911 world.

The reality is that some very important things have changed, and some important things have remained the same. The subject of U.S. Immigration waivers is a good example.

We are beginning to see some trends that show the interplay between the laws or procedures that have changed, and the laws or procedures that have remained the same.

Let’s take a look at that within the context of three specific questions relating to waivers.

Have the basic ground rules changed for waiver eligibility? The basic answer to this question is “No.” U.S. immigration laws provide for specific grounds of inadmissibility, including from public health issues, security/terrorism, criminal conviction record and previous immigration law violations. These basic grounds for inadmissibility have been in force for many years and remain intact.

Are there changes in the way waiver applications are reviewed? This is a definite “Yes.” There are significant changes in the type of review procedures and the administrative system within the review occurs. Prior to the creation of the U.S. Department of Homeland Security (DHS), the U.S. Immigration and Naturalization Service (INS) functioned separate from the U.S. Customs Service. Additionally, the INS was in charge of both the personnel doing inspections and enforcement at the border, as well as the personnel handling applications for visas, green cards and citizenship. Upon the creation of the DHS, the INS went out of existence and several agencies were combined and then divided along functional lines. We now have Customs and border personnel doing the “border protection” function, and other personnel doing the visa application “benefit” function. The problem is that waiver applications dealt with personnel from both functional areas; waiver applications are submitted at the border, where the applicant undergoes fingerprinting, and then are sent to a different unit for handling and adjudication.

For more than one year after the implementation of the DHS system, there was not an efficient chain of command for waiver application processing and accountability. This led to inefficiency and the inability of applicants to get reasonable responses to inquiries regarding processing delays. At the same time, waiver applications were required to undergo much deeper security background checks, requiring responses for more than one federal agency.

Although great strides have been made in enhancing communications among agencies and creating centralized databases, there still is a problem that more than one type of background search has to be done for each applicant, meaning that any one of them can create a backlog. For years, waiver applications in most jurisdictions were being approved within a three to five month time frame. That gradually increased under DHS involvement, to where some waiver applicants, even renewal applicants, are waiting a year or more.

There does appear to be some light at the end of tunnel, as we have been informed that some of the larger backlogs have been broken up and that processing is anticipated to meet prior efficiency levels within the next year.

Have the review standards changed?

Until recently, this was a difficult question to answer, because the backlogs of one year or more meant that we weren’t getting any approvals or denials to allow us to evaluate whether standards have changed.

There have been no new standards announced, but there was some concern that a new administrative hierarchy could rewrite the guidelines used to review waiver applications in the past.

For example, a key factor in waiver applications is a demonstration of rehabilitation that shows that the applicant is no longer a risk to society.

Often, this three-year time frame was measured not from the date of the last conviction, but from the end of any jail time or probation assessed in the matter.

This unwritten rule was applied fairly consistently, but the person making the decision did have the discretion to reduce or increase that timeframe, based on the overall circumstances.

Waiver applicants with appropriate rehabilitation time frames have received a high degree of success in the past.

In some INS offices, approval rates were in the 80 to 90 per cent range. We are concerned about whether that will continue.

It is a little premature to make any judgment, but some decisions that have come to our attention have caused us to wonder whether stricter guidelines will be applied, requiring longer rehabilitation periods.

We recommend that waiver applicants exercise caution and include documentary evidence of good character and rehabilitation, and not merely rely on the length of time between the date of conviction and date of waiver application.

We will comment more on this issue as more information is received.

– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.

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