Chapter 3: Admissibility and Waiver Requirements

An asylee adjustment applicant must be admissible at the time ​USCIS grants the ​adjustment of status. Because an asylee is not subject to admissibility grounds at the time of the asylum grant, th​e adjudication of the adjustment application​may ​be the first instance ​that ​inadmissibility grounds are considered. The applicants may be found inadmissible based on any information in the A-file or submitted with the adjustment applicati​on or through security checks. ​

A. Exemptions​

The following grounds of inadmissibility do not apply to asylees adjusting status:​

Public Charge – ​INA 212(a)(4)​

Labor Certification and Qualifications for Certain Immigrants – ​INA 212(a)(5)​

Documentation Requirements for Immigrants – ​INA 212(a)(7)(A)​

B. Applicable ​Inadmissibility ​Grounds​

The following grounds of inadmissibility apply to asylees adjusting status:​

Health-Related – ​INA 212(a)(1)​

Crime-Related – ​INA 212(a)(​2​)​

Security-Related – ​INA 212 (a)(3​)​

Illegal E​ntrants and Immigration V​iolators – ​INA 212(a)(6)​

Ineligibility for Citizenship – ​INA 212(a)(8)​

Foreign Nationals Previously Removed – ​INA 212(a)(9)​

Practicing Polygamists, Guardians Required to Accompany Helpless ​Persons​, International Child Abductors, Unlawful Voters, and Former Citizens who Renounced Citizenship to Avoid Taxation – ​INA 212(a)(10)​

1. Health-Related Considerations​

In some cases, a derivative asylee who ​had a relative petition​(​Form I-730​) ​processed overseas may have had a Class A medical condition that was waived for purposes of admission as an asylee. In these instances, the waiver does not carry through to adjustment and the ​applicant​must submit to a new medical examination to determine whether the Class A medical condition has been resolved.​

2. Unlawful Presence Considerations​

An unlawful presence exception applies during the period of time in which the asylee had a bona fide, pending asylum application. ​T​he time period that the ​applicant’s ​bona fide asylum application was pending should not be included in any unlawful presence calculation​,​ [1] See INA 212(a)(9)(B).provided the ​applicant ​was not employed without authorization during such time period. Unauthorized employment would disqualify the asylee from th​is​ exception.​ [2] See INA 212(a)(9)(B)(iii)(II).

While d​epartures ​from the United States may ​trigger ​an ​unlawful presence bar​, ​an officer may consider a ​w​aiver for unlawful presence either through submission of ​a waiver application (​Form I-602​)​,​ or in conjunction with the ​adjustment of status application​, in instances in which a ​waiver application ​is not requested. ​If​the officer does not request ​a ​waiver application​, the officer should notate ​any​ waiver ​granted ​on the ​adjustment of status application​. ​However, the ​B​oard of ​I​mmigration ​A​ppeals​ held on April 17, 2012 that travel on advance parole for a pending adjustment applicant will not trigger the unlawful presence bar.​ [3] See Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).

C. Inadmissibility Grounds that May Not Be Waived​

While waivers are generally available for most of the grounds​ listed in ​Section B, Applicable Inadmissibility Grounds​,​ [4] See 7 USCIS-PM M.3(B). the following grounds of inadmissibility cannot be waived:​

Controlled Substance T​raffickers – ​INA 212(a)(2)(C)​

Espionage; ​Sabotage​; Illegal Export of Goods, Technology, or Sensitive Information;​ Unlawful Overthrow or Opposition to U.S. Government –​INA 212(a)(3)(A)​

Terrorist Activities – ​INA 212 (a)(3)(B)​ (Note: Exemptions for some of these grounds exist)​

Adverse ​F​oreign ​P​olicy Impact – ​INA 212(a)(3)(C)​

Participants in Nazi Persecutions or Genocide – ​INA 212(a)(3)(E)​

An officer should deny the adjustment application where no waiver or exemption is available due to the type of inadmissibility found. ​

National Security Issues​

In the event that the adjudicating officer identifies at any stage one or more national security indicator(s) or concerns unknown at the time of the grant​ of asylum​, the officer should refer to USCIS guidance on disposition of national security cases. The officer should also follow current USCIS instructions on cases that involve terrorist related grounds of inadmissibility for disposition of the case or see their supervisor for questions​.​

Unless ​a case is ​sent specifically to a field office for resolution of ​Terrorist Related Inadmissibi​l​ity Ground (​TRIG​)​ issues and final adjudication of the adjustment application, an officer should return any asylee adjustment case with unresolved TRIG issues to the ​originating​S​ervice ​C​enter for resolution.​

D. Waivers​

All grounds of inadmissibility listed at ​Section B, Applicable Inadmissibility Grounds​ [5] See 7 USCIS-PM M.3(B). are subject to waiver, if the applicant can establish he or she qualifies for a waiver.​

An asylee adjustment applicant may have a ground of inadmissibility waived for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. ​This ​type of ​waiver does not require the applicant to prove extreme hardship.​

In adjudicating a discretionary waiver application for asylee adjustment​, an officer must balance the​ humanitarian, family unity, or public interest considerations ​with​ the seriousness of the offense ​or conduct ​that rendered the applicant inadmissible. In making this determination, ​an ​officer should recognize that the applicant has already established past or a well-founded fear of future persecution, which is an extremely strong positive discretionary factor.​