A. Purpose

Certain foreign nationals may not be allowed to enter or obtain status in the United States because they are inadmissible. These foreign nationals may overcome the inadmissibility if they are eligible to apply for and receive a waiver.

USCIS, in its administration of waiver laws and policies, seeks to:

Promote family unity and provide humanitarian results;

Provide relief to refugees, asylees, victims of human trafficking [1] See INA 101(a)(15)(T). and certain criminal acts, [2] See INA 101(a)(15)(U). and other humanitarian and public interest applicants who seek protection or permanent residency in the United States;

Advance the national interest by allowing foreign nationals to be admitted to the United States if such admission could benefit the welfare of the country;

Ensure public health and safety concerns are met by requiring that applicants satisfy all medical requirements prior to admission or, if admitted, seek any necessary treatment; and

Weigh public safety and national security concerns against the social and humanitarian benefits of granting admission to a foreign national.

Considerations of family unity, humanitarian concerns, public and national interest, and national security may differ depending on the specific waiver an applicant is seeking.

B. Background

With the enactment of the Immigration and Nationality Act of 1952 (INA), [3] See Pub. L. 82-414 (June 27, 1952). Congress established a variety of inadmissibility grounds to protect the interests of the United States. Congress considered waivers as a special remedy to the grounds of inadmissibility. [4] See INS v. Errico, 385 U.S. 214, 218 (1966), citing H.R. 1365, 82nd Cong. 128 (1952).

Congress later amended the INA in 1957, easing many stricter provisions of the earlier legislation. [5] See Act of September 11, 1957, Pub. L. 85-316 (September 11, 1957). For example, it allowed certain foreign national relatives of U.S. citizens or lawful permanent residents (LPR) to apply for and obtain a waiver of certain grounds of exclusion or deportation (now inadmissibility or removal). [6] The INA gives the Attorney General and the Secretary of Homeland Security statutory authority to grant waivers. Some sections of the INA, however, still refer exclusively to the “Attorney General.” Under the Homeland Security Act of 2002, Pub. L. 107–296 (November 25, 2002), the authority to grant waivers was also given to the Secretary of Homeland Security.

When passing the 1957 amendments, Congress created exceptions to many strict provisions from the 1952 Act to promote family unity. For Congress, in many circumstances, it was more important to keep families together than to stringently enforce inadmissibility grounds. [7] See INS v. Errico, 385 U.S. 214, 219-20 (1966), citing H.R. 1199, 85th Cong. 7 (1957).

Congress tightened waiver requirements and availability once again with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). [8] See Pub. L. 104-208 (September 30, 1996). For example, IIRIRA made waivers of criminal inadmissibility [9] See INA 212(h). unavailable to LPRs who were convicted of an aggravated felony or who had not continuously resided in the United States for at least 7 years before initiation of removal proceedings.

IIRIRA also created new inadmissibility grounds, such as the ground of inadmissibility on account of unlawful presence, and corresponding waivers.

C. Legal Authorities

INA 207, 8 CFR 207 - Annual admission of refugees and admission of emergency situation refugees

INA 209, 8 CFR 209 - Adjustment of status of refugees

INA 210, 8 CFR 210 - Special agricultural workers

INA 211, 8 CFR 211 - Admission of immigrants into the United States

INA 212, 8 CFR 212 - Excludable aliens

INA 214, 8 CFR 214 - Admission of nonimmigrants

INA 244, 8 CFR 244 - Temporary protected status

INA 245, 8 CFR 245 - Adjustment of status of nonimmigrant to that of person admitted for permanent residence

INA 245A, 8 CFR 245a - Adjustment of status of certain entrants before January 1, 1982, to that of person admitted for lawful residence