If the applicant meets all other statutory and regulatory requirements of the waiver, the officer must determine whether to approve the waiver as a matter of discretion. [1] If the applicant does not meet another statutory requirement of the waiver, USCIS denies the waiver and a discretionary analysis is not necessary. However, an officer may still include a discretionary analysis if the applicant’s conduct is so egregious that a discretionary denial would be warranted even if the applicant had met the other statutory and regulatory requirements. Adding a discretionary analysis to a denial is also useful if an appellate body on review disagrees with the officer’s conclusion that the applicant failed to meet the statutory requisites for the waiver. Meeting the other statutory and regulatory requirements alone does not entitle the applicant to relief. [2] See Reyes-Cornejo v. Holder, 734 F.3d 636 (7th Cir. 2013). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999). See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

The discretionary determination is the final step in the adjudication of a waiver application. The applicant bears the burden of proving that he or she merits a favorable exercise of discretion. [3] See Matter of De Lucia, 11 I&N Dec. 565 (BIA 1966). See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957).

A. Discretionary Factors

The officer must weigh the social and humanitarian considerations against the adverse factors present in the applicant’s case. [4] See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996). The approval of a waiver as a matter of discretion depends on whether the favorable factors in the applicant's case outweigh the unfavorable ones. [5] See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996) (relating to a criminal waiver under INA 212(h)(1)(B)). See Matter of Marin, 16 I&N Dec. 581 (BIA 1978) (relating to an INA 212(c) waiver). See Matter of Tijam, 22 I&N Dec. 408 (BIA 1998) (relating to a fraud or misrepresentation finding (INA 212(a)(6)(C)(i)) and the discretionary waiver under former INA 241(a)(1)(H) [renumbered as INA 237(a)(1)(H) by IIRIRA]).

The following table provides some of the factors relevant to the waiver adjudication.

Non-Exhaustive List of Factors that May Be

Relevant in the Discretionary Analysis

Category

Favorable Factors

Unfavorable Factors

Waiver Eligibility

Meeting certain other statutory requirements of the waiver, including a finding of extreme hardship to a qualifying family member, if applicable. [6] In particular, if a finding of extreme hardship is a statutory eligibility requirement, the finding of extreme hardship permits, but does not require, a favorable exercise of discretion. Once extreme hardship is found, extreme hardship becomes a factor that weighs in favor of granting relief as a matter of discretion.

Eligibility for waiver of other inadmissibility grounds.

Not applicable – Not meeting the statutory requirements of the waiver results in a waiver denial. A discretionary analysis is not necessary.

Family and Community Ties

Family ties to the United States and the closeness of the underlying relationships.

Hardship to the applicant or to non-qualifying lawful permanent residents (LPRs) or U.S. citizen relatives or employers.

Length of lawful residence in the United States and status held during that residence, particularly where the applicant began residency at a young age.

Significant health concerns that affect the qualifying relative.

Difficulties the qualifying relative would be likely to face if the qualifying relative moves abroad with the applicant due to country conditions, inability to adapt, restrictions on residence, or other factors that may be claimed.

Honorable service in the U.S. armed forces or other evidence of value and service to the community.

Property or business ties in the United States.

Absence of community ties.


Criminal History, Moral Character

(or both)

Respect for law and order, and good moral character, which may be evidenced by affidavits from family, friends, and responsible community representatives.

Reformation of character and rehabilitation.

Community service beyond any imposed by the courts.

Considerable passage of time since deportation or removal.

Moral depravity or criminal tendencies reflected by an ongoing or continuing criminal record, particularly the nature, scope, seriousness, and recent occurrence of criminal activity.

Repeated or serious violations of immigration laws, which evidence a disregard for U.S. law.

Lack of reformation of character or rehabilitation.

Previous instances of fraud or false testimony in dealings with USCIS or any government agency.

Marriage to a U.S. citizen or LPR for the primary purpose of circumventing immigration laws.

Nature and underlying circumstances of the inadmissibility ground at issue, and the seriousness of the violation.

Public safety or national security concerns

Other

Absence of significant undesirable or negative factors.

Other indicators of an applicant's bad character and undesirability as a permanent resident of this country.

B. Discretionary Determination

When making a discretionary determination, the officer should review the entire record and give the appropriate weight to each adverse and favorable factor. Once the officer has weighed each factor, the officer should consider all of the factors cumulatively to determine whether the favorable factors outweigh the unfavorable ones. If the officer determines that the positive factors outweigh the negative factors, then the applicant merits a favorable exercise of discretion.

Example

A lengthy and stable marriage is generally a favorable factor in the discretionary analysis. On the other hand, the weight given to any possible hardship to the spouse that may occur upon separation may be diminished if the parties married after the commencement of removal proceedings with knowledge of an impending removal. [7] See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996). See Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992).

Example

In general, when reviewing an applicant’s employment history, an officer may consider the type, length, and stability of the employment. [8] See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

Example

In general, when reviewing an applicant’s history of physical presence in the United States, the officer may favorably consider residence of long duration in this country, as well as residence in the United States while the applicant was of young age. [9] See Diaz-Resendez v. INS, 960 F.2d 493 (5th Cir. 1992).

Example

When looking at the applicant's presence in the United States, the officer should evaluate the nature of the presence. For example, a period of residency during which the applicant was imprisoned may diminish the significance of that period of residency. [10] See Douglas v. INS, 28 F.3d 241 (2nd Cir. 1994).

C. Cases Involving Violent or Dangerous Crimes

If a foreign national is inadmissible on criminal grounds involving a violent or dangerous crime, an officer may not exercise favorable discretion unless the applicant has established, in addition to the other statutory and regulatory requirements of the waiver that:

The case involves extraordinary circumstances; or

The denial would result in exceptional and extremely unusual hardship. [11] See INA 212(h). See 8 CFR 212.7(d). See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (relating to a waiver of inadmissibility granted in connection with INA 209(c), refugee or asylee adjustment of status).

Extraordinary circumstances involve considerations such as national security or foreign policy interests. Exceptional and extremely unusual hardship is substantially beyond the ordinary hardship that would be expected as a result of denial of admission, but it does not need to be so severe as to be considered unconscionable. [12] See Matter of Monreal, 23 I&N Dec. 56 (BIA 2001). Depending on the gravity of the underlying criminal offense, a showing of extraordinary circumstances may still be insufficient to warrant a favorable exercise of discretion. [13] See 8 CFR 212.7(d) .

Footnotes


1. [^]

If the applicant does not meet another statutory requirement of the waiver, USCIS denies the waiver and a discretionary analysis is not necessary. However, an officer may still include a discretionary analysis if the applicant’s conduct is so egregious that a discretionary denial would be warranted even if the applicant had met the other statutory and regulatory requirements. Adding a discretionary analysis to a denial is also useful if an appellate body on review disagrees with the officer’s conclusion that the applicant failed to meet the statutory requisites for the waiver.

2. [^]

See Reyes-Cornejo v. Holder, 734 F.3d 636 (7th Cir. 2013). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999). See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

3. [^]

See Matter of De Lucia, 11 I&N Dec. 565 (BIA 1966). See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957).

4. [^]

See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

5. [^]

See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996) (relating to a criminal waiver under INA 212(h)(1)(B)). See Matter of Marin, 16 I&N Dec. 581 (BIA 1978) (relating to an INA 212(c) waiver). See Matter of Tijam, 22 I&N Dec. 408 (BIA 1998) (relating to a fraud or misrepresentation finding (INA 212(a)(6)(C)(i)) and the discretionary waiver under former INA 241(a)(1)(H) [renumbered as INA 237(a)(1)(H) by IIRIRA]).

6. [^]

In particular, if a finding of extreme hardship is a statutory eligibility requirement, the finding of extreme hardship permits, but does not require, a favorable exercise of discretion. Once extreme hardship is found, extreme hardship becomes a factor that weighs in favor of granting relief as a matter of discretion.

7. [^]

See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996). See Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992).

8. [^]

See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

9. [^]

See Diaz-Resendez v. INS, 960 F.2d 493 (5th Cir. 1992).

10. [^]

See Douglas v. INS, 28 F.3d 241 (2nd Cir. 1994).

11. [^]

See INA 212(h). See 8 CFR 212.7(d). See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (relating to a waiver of inadmissibility granted in connection with INA 209(c), refugee or asylee adjustment of status).

12. [^]

See Matter of Monreal, 23 I&N Dec. 56 (BIA 2001).

13. [^]

See 8 CFR 212.7(d) .