\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 45 Waiver of Section 212(e) Foreign Residence Requirement. \ 45.4 Waiver Based on a Claim of Persecution.
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45.4 Waiver Based on a Claim of Persecution.
Disposition of Improperly Filed Applications
Unless an I-612 has been submitted to support a waiver application based upon a hardship or persecution claim, it should be rejected with appropriate instructions to the applicant. If the I-612 application does not allege that return to the country of nationality or last foreign residence would subject the applicant to persecution on account of race, religion, or political opinion, you should return the application and give the applicant an opportunity to resubmit it with the appropriate information request
ed. If the application is returned without the above information indicated, deny for failure to establish the relationship or persecution necessary to be considered for the specific waiver.
An alien may have erroneously submitted an I-612 requesting a waiver based on an extreme hardship claim and submitted documentation to establish persecution, or vice versa. In such case, return the application to the alien with a request that he or she either correct the basis for the waiver request indicated in block 5 or submit documentation supporting the basis indicated. Also, an alien may have erroneously submitted an I-612 in conjunction with a waiver request based on a "no objection" statement or on
the sponsorship of a U.S. Government agency. Such requests should be rejected with instructions to submit the requests directly to the Waiver Review Division of the United States Department of State, Washington, D.C. 20547, for that agency's recommendation to the USCIS.
While certain aspects of the persecution provision under section 212(e) of the Act parallel the asylum requirements in section 208 of the Act, they differ in many respects. A waiver application under section 212(e) of the Act based on persecution is unrelated to an asylum application under section 208 of the Act. The most notable difference between the 212(e) waiver provisions based on persecution and the requirements under section 208 of the Act for asylum are the reasons for the claimed persecution and wh
ether the applicant has firmly resettled in a third country. Among other things, the asylum provisions of section 208 of the Act require the applicant to establish persecution on account of race, religion, political opinion, nationality, or membership in a particular social group. Section 208 also requires an alien to show that he or she has not firmly resettled in another country. The waiver provisions of section 212(e) of the Act, however, limit claims of persecution to race, religion, or political opinio
n, and do not require the applicant to establish that he or she has not firmly resettled in a third country. In addition, a waiver application under section 212(e) of the Act requires the applicant to establish that he or she would be subject to persecution upon a return to the home country, whereas an applicant under section 208 of the Act must only establish a well-founded fear of persecution. This is a higher standard than that applied to asylum claims under section 208 of the Act.