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, the 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 application or through security checks.
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 Entrants and Immigration Violators – INA 212(a)(6)
Ineligibility for Citizenship – INA 212(a)(8)
Aliens 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 Refugee/Asylee 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. The time period that the applicant’s bona fide asylum application was pending should not be included in any unlawful presence calculation, provided the applicant was not employed without authorization during such time period. Unauthorized employment would disqualify the asylee from this exception.
While departures from the United States may trigger an unlawful presence bar, an officer may consider a waiver 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 Board of Immigration Appeals held on April 17, 2012 that travel on advance parole for a pending adjustment applicant will not trigger the unlawful presence bar.
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, the following grounds of inadmissibility cannot be waived:
Controlled Substance Traffickers – 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 Foreign Policy 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 Inadmissibility 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 service center for resolution.
All grounds of inadmissibility listed at Section B, Applicable Inadmissibility Grounds 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.
Exchange Visitors (J-1 and J-2 Nonimmigrants)
An asylee adjustment applicant who previously held the status of an exchange visitor (J-1 or J-2 nonimmigrant) and is therefore subject to the 2-year foreign residence requirement is eligible to adjust status without regard to this requirement. The applicant is not required to show proof of compliance with or obtain a waiver of the foreign residence requirement if applying to adjust status under INA 209.
[^ 1] See INA 212(a)(9)(B).
[^ 2] See INA 212(a)(9)(B)(iii)(II).
[^ 3] See Matter of Arrabally and Yerrabelly (PDF), 25 I&N Dec. 771 (BIA 2012).
[^ 4] See Section B, Applicable Inadmissibility Grounds [7 USCIS-PM M.3(B)].
[^ 5] For more information on waiver policies and procedures, see Volume 9, Waivers and Other Forms of Relief, Part A, Waiver Policies and Procedures [9 USCIS-PM A]
[^ 6] See Section B, Applicable Inadmissibility Grounds [7 USCIS-PM M.3(B)].
[^ 7] See INA 101(a)(15)(J).
[^ 8] See INA 212(e).
[^ 9] See 8 CFR 209.2(b) (foreign residency exemption).