Written by: E. Nicole Kozycki, Esq. Kozycki Law, LLC

The recent expansion of the provisional waiver rule has gotten a lot of attention from practicing immigration attorneys because it greatly expanded the categories of eligible individuals who can now apply for a state-side waiver to cure their unlawful presence. Meaning, an individual now with an employment-based petition or any family preference category who demonstrates extreme hardship to a qualifying U.S. citizen can seek a provisional determination from United States Citizenship and Immigration Services (USCIS) that the re-entry bar that they will trigger upon exiting is essentially “waived” before they actually leave the U.S.

However, the expanded provisional waiver regulation does not exactly provide any more assurance to the new beneficiaries than for previous applicants. The new rule also has another quite significant change in that it eliminates the “reason to believe” standard that gave USCIS a basis for denying applications for individuals who seemed to have another basis to be deemed inadmissible. The prior “reason to believe” standard was fraught with misapplication, and applicants who were not inadmissible on other grounds were denied the unlawful presence waiver based on this “reason to believe” standard by USCIS reviewing officers.

Removing the “reason to believe” standard might keep eligible applicants from receiving inappropriate denials, but it also removes an extra layer of protection for applicants who may have other inadmissibility issues that will plague their interview at the consulate abroad. As of now, USCIS still conducts routine background and security checks, but it is still possible for an approved provisional waiver beneficiary to travel abroad for an immigrant visa and then be denied ultimately on another ground. If the consulate finds that the applicant is inadmissible on another ground, the provisional waiver is automatically revoked. This leaves an individual on the wrong side of the border, after expecting a mere one to two-week trip abroad, left with only the option of applying for a new standard waiver and waiting up to a year or more for a new determination.

Of course, adequate legal representation removes a lot of the risk of traveling abroad because an attorney should always carefully review the immigrant's file for any potential grounds that will deem the individual inadmissible, and would normally only advise travel when only the unlawful presence factor is present and has been adequately cured with an approved Form I-601A waiver. However, many immigrants try to navigate this process unrepresented and unaware of the risks involved.
There are also ethical concerns when you have worried clients who do not wish to cross the border without some assurance from their attorney, if they have one. It would not be prudent or ethical to try to promise or guarantee that a client will be able to return, as the re-entry process will at some point be beyond the control of any attorney. A legal representative's guidance is always limited to the information provided, and even if a Freedom of Information Act (FOIA) has been requested and the client has been seemingly forthcoming, it is impossible to tell what sort of details have been omitted that may be grounds for rendering an intending immigrant inadmissible.

These concerns are not limited to the provisional waiver process, but also extend to advance parole documents and other travel permits granted by USCIS. Even an approved travel document does not guarantee re-entry, and there are many factors (criminal record included) that can render an alien inadmissible on the wrong side of the border. DACA based Advance Parole documents provide the least reassurance for clients who wish to travel, given that they have no real status in the U.S., no path to legal permanent residency to rely on, and no hopes of re-entering in any capacity in the near future if denied entry by Customs and Border Protection (CBP). While border denials are rare for individuals with these approved documents, clients should always be advised that with international travel brings a certain unavoidable risk.

Just as important as getting pre-travel consulting and taking the correct documents, individuals must also be sure to take the actual re-entry documents themselves. When an approved travel document exists, it is that document and that document alone that will signal to CBP that a client has been approved for re-entry by USCIS. If the client loses the document while abroad, there is no easy solution, in most cases. There are certain consulates abroad that will not even consider a boarding foil or other transportation document in the event that the advance parole card is missing and the client must visit a foreign USCIS office and request that a new card be issued on an expedited basis from the USCIS processing center to them abroad before they can attempt re-entry.

The bottom line is that any attorney should be very careful before advising clients to leave the U.S. when there is no guarantee of re-entry. A careful review of the client's full immigration history, criminal background (especially after a DUI/OWI conviction), and even health related-grounds should be considered when international travel is considered by the client.