Chapter 4 - Waiver Eligibility and Evidence
Waiver eligibility depends on whether:
A waiver is available for the inadmissibility ground;
The applicant meets all other statutory and regulatory provisions for the waiver; and
A favorable exercise of discretion is warranted.
An applicant must meet all statutory and regulatory requirements, including the requirements specified in the waiver application’s instructions, before USCIS can approve the waiver application. When the officer receives the application, the officer should ensure that it meets all of the applicable filing requirements.
If an applicant is inadmissible, the officer must determine whether USCIS may waive the ground of inadmissibility and whether the applicant meets all eligibility requirements of the waiver. If the applicant is inadmissible on grounds that can be waived, the officer should determine whether the applicant meets the requirements for the waiver.
An applicant who files a waiver application may also be inadmissible because of a prior removal or unlawful reentry after a previous immigration violation. In these cases, the applicant is required to file an Application for Permission to Reapply for Admission into the United States after Deportation or Removal (Form I-212), which is also called consent to reapply.
If the officer determines that the waiver is approvable, the officer should give the applicant an opportunity to file a consent to reapply application, if required. The officer should consult the consent to reapply form instructions to determine when USCIS may accept the waiver application and consent to reapply application together.
If the waiver is not approvable and the applicant did not request consent to reapply (although required), the officer should deny the waiver and not request the application for consent to reapply. If an applicant files a consent to reapply application and the officer denies the waiver application, then the officer should deny the consent to reapply application as a matter of discretion.
An applicant may be inadmissible for both a ground that USCIS may waive and a ground for which no waiver or other form of relief is available. In this instance, the applicant is still inadmissible on grounds that cannot be waived and approving the waiver application serves no purpose. The officer, therefore, should deny the application as a matter of discretion because the applicant is inadmissible on grounds that cannot be waived. The officer should provide the standard language regarding the availability of motions to reopen, motions to reconsider, and appeals (if applicable) in the denial notice.
There is no specific type or amount of evidence necessary to establish eligibility for a waiver. Typically, the evidence should support all eligibility requirements, be specific, and come from a credible source. It should also substantiate the applicant’s claims. If evidence is unavailable, the applicant should provide a reasonable explanation for its absence.
Professionals should address issues that require specialized knowledge. Physicians and other medical professionals, for example, should provide medical statements. The professional’s attestation should explain how the condition or issue affects that applicant. An officer may still consider a nonprofessional’s statement, but the officer should give less weight to a nonprofessional’s opinion. An officer may consider medical evidence from the internet and published sources, but these sources generally cannot replace a physician's statement.
Some waivers require that the applicant establish a qualifying familial relationship. Unless the adjudicating officer finds the underlying evidence unpersuasive, the evidence submitted as part of a previously approved petition or application based on that familial relationship is sufficient to establish the qualifying relationship for the waiver. If there is no evidence in the record establishing the qualifying relationship, then the officer must request evidence that establishes the qualifying relationship, such as marriage, birth, or adoption certificates, or other evidence as permitted by law.
[^ 2] See 8 CFR 103.2. See 8 CFR 103.7. General filing requirements include proper signature; proper fee or fee waiver; translation of any foreign language evidence; proper filing location; and the initial evidence specified in the relevant regulations and instructions with the application. Forms and form instructions are available on USCIS’ website at uscis.gov/forms.
[^ 3] See 8 CFR 103.2. Typically, a waiver does not require the applicant to submit biometrics. USCIS usually collects this information as part of the underlying benefit application, such as an adjustment of status application. However, if the required biometrics are outdated, then the officer must update the biometrics prior to the adjudication of a waiver.