Chapter 3 - Review of Inadmissibility Grounds
Before adjudicating a waiver, the officer must verify that the applicant is inadmissible. The officer must identify all inadmissibility grounds that apply, even if an immigration judge, a consular officer, Customs and Border Protection (CBP) officer, or a different USCIS officer made a prior inadmissibility determination.
An applicant’s file should reflect evidence of inadmissibility. Examples of evidence that may indicate an applicant is inadmissible may include but is not limited to:
A visa refusal worksheet;
Background check results;
A criminal disposition;
A sworn statement; and
A Record of Arrests and Prosecutions sheet (police arrest record).
If the officer identifies that the applicant is inadmissible, the officer should then determine whether a waiver or other type of relief is available and whether the applicant meets the eligibility requirements for the relief.
The officer must review all inadmissibility grounds that the applicant lists in the waiver application. If the applicant states that he or she is inadmissible but there is no evidence of inadmissibility in the record, then the officer should issue a Request for Evidence (RFE). The officer should request that the applicant provide a written statement explaining why the applicant thinks he or she is inadmissible. The officer should proceed with the waiver adjudication if the officer determines that the applicant is inadmissible.
An applicant may file a waiver application after another government agency, such as the Department of State or CBP, has found the applicant inadmissible. In general, USCIS accepts another government agency’s finding of inadmissibility. The officer should only question another government agency’s inadmissibility determination if:
The government agency’s finding was clearly erroneous; or
The applicant has shown that he or she is clearly not inadmissible.
The officer should work with the other government agency to resolve the issue through appropriate procedures.
If the officer identifies additional inadmissibility grounds based on events that are not included in the waiver application, the officer should notify the applicant and the applicant’s representative, if applicable. The officer should follow current USCIS guidance on the issuance of RFEs, Notices of Intent to Deny (NOID), and Denials.
[^ 2] When verifying the inadmissibility, the officer may determine that the applicant is admissible and does not require a waiver. For more on admissibility determinations, see Volume 8, Admissibility [8 USCIS-PM].