USCIS Policy Manual

Current as of January 16, 2019

Volume 9 - Waivers

Part A - Waiver Policies and Procedures

Chapter 1 - Purpose and Background

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

Footnotes

1.

See INA 101(a)(15)(T).

 

2.

See INA 101(a)(15)(U).

 

3.

See Pub. L. 82-414 (June 27, 1952).

 

4.

See INS v. Errico, 385 U.S. 214, 218 (1966), citing H.R. 1365, 82nd Cong. 128 (1952).

 

5.

See Act of September 11, 1957, Pub. L. 85-316 (September 11, 1957).

 

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.

 

7.

See INS v. Errico, 385 U.S. 214, 219-20 (1966), citing H.R. 1199, 85th Cong. 7 (1957).

 

8.

See Pub. L. 104-208 (September 30, 1996).

 

9.

See INA 212(h).

 

Chapter 2 - Forms of Relief

A. Waivers

In general, applicants for immigration benefits must establish that they are admissible to the United States. If an applicant for an immigration benefit is inadmissible to the United States, USCIS may only grant the benefit if the applicant receives a waiver of inadmissibility or another form of relief provided in the Immigration and Nationality Act (INA). [1] See Pub. L. 82-414 (June 27, 1952). In general, if the INA uses the term waiver, the applicant must apply for the waiver by filing the correct application.

USCIS may only grant a waiver if the applicant meets all statutory and regulatory requirements.

There are instances in which an officer may adjudicate a waiver without asking the applicant to file a form. For example, an officer may adjudicate certain waivers of inadmissibility for a refugee or an asylee seeking adjustment of status without the applicant filing a waiver application. In these circumstances, the officer must still clearly document the waiver determination in the record.

B. Exceptions or Exemptions

A statute may provide for an exception or exemption from a ground of inadmissibility. [2] Exception and exemption both mean that the specific inadmissibility ground does not apply if the applicant establishes that the terms of the exception or exemption apply. If the foreign national’s action or circumstance meets the requirements of an exception or exemption, then the ground of inadmissibility does not apply and the foreign national is not inadmissible on that ground. Unlike a waiver, an exemption or exception generally does not require that a foreign national file an application.

C. Consent to Reapply

Permission to reapply for admission into the United States after deportation or removal, also known as consent to reapply, is not a waiver. [3] See Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212) (used to seek consent to reapply). See the form instructions for more information. Consent to reapply is a distinct remedy that permits a foreign national to seek admission. If the statute specifies that the foreign national must obtain consent to reapply to overcome the inadmissibility, a waiver of inadmissibility is not a substitute for consent to reapply. [4] See INA 212(a)(9)(A). See INA 212(a)(9)(C).

Footnotes

1.

See Pub. L. 82-414 (June 27, 1952).

 

2.

Exception and exemption both mean that the specific inadmissibility ground does not apply if the applicant establishes that the terms of the exception or exemption apply.

 

3.

See Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212) (used to seek consent to reapply). See the form instructions for more information.

 

4.

See INA 212(a)(9)(A). See INA 212(a)(9)(C).

 

Chapter 3 - Review of Inadmissibility Grounds

A. Verification of Inadmissibility

Before adjudicating a waiver, the officer must verify that the applicant is inadmissible. [1] For more on admissibility determinations, see Volume 8, Admissibility [8 USCIS-PM]. 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. [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].

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. [3] For specific scenarios that the officer may encounter during the adjudication of a waiver, see Chapter 4, Waiver Eligibility and Evidence, Section C, Evidence [9 USCIS-PM A.4(C)].

B. Grounds Included in Waiver Application

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.

C. Grounds Not Included in Waiver Application

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.

Footnotes

1.

For more on admissibility determinations, see Volume 8, Admissibility [8 USCIS-PM].

 

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].

 

3.

For specific scenarios that the officer may encounter during the adjudication of a waiver, see Chapter 4, Waiver Eligibility and Evidence, Section C, Evidence [9 USCIS-PM A.4(C)].

 

Chapter 4 - Waiver Eligibility and Evidence

A. Eligibility Requirements

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

An applicant must meet all statutory and regulatory requirements, including the requirements specified in the waiver applications instructions, before USCIS can approve the waiver application. [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 www.uscis.gov/forms. When the officer receives the application, the officer should ensure that it meets all of the applicable filing requirements. [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.

B. Waiver Availability

1. Waiver is Available

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. [4] See Chapter 4, Waiver Eligibility and Evidence [9 USCIS-PM A.4].

2. Waiver and Consent to Reapply

An applicant who files a waiver application may also be inadmissible because of a prior removal or unlawful reentry after a previous immigration violation. [5] Inadmissible under INA 212(a)(9)(A) or INA 212(a)(9)(C). 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. [6] See Matter of J-F-D-, 10 I&N Dec. 694 (Reg. Comm. 1963). See Matter of Martinez-Torres, 10 I&N Dec. 776 (Reg. Comm. 1964).

3. No Waiver is Available

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. [7] See Matter of J-F-D-, 10 I&N Dec. 694 (Reg. Comm. 1963). See Matter of Martinez-Torres, 10 I&N Dec. 776 (Reg. Comm. 1964). 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.

C. Evidence

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. [8] See 8 CFR 103.2(b).

1. Medical and Other Issues Requiring Specialized Knowledge

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.

2. Family Relationships

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.

Footnotes

1.

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

 

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 www.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.

 

4.

See Chapter 4, Waiver Eligibility and Evidence [9 USCIS-PM A.4].

 

5.

Inadmissible under INA 212(a)(9)(A) or INA 212(a)(9)(C).

 

6.

See Matter of J-F-D-, 10 I&N Dec. 694 (Reg. Comm. 1963). See Matter of Martinez-Torres, 10 I&N Dec. 776 (Reg. Comm. 1964).

 

7.

See Matter of J-F-D-, 10 I&N Dec. 694 (Reg. Comm. 1963). See Matter of Martinez-Torres, 10 I&N Dec. 776 (Reg. Comm. 1964).

 

8.

See 8 CFR 103.2(b).

 

Chapter 5 - Discretion

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) .

 

Chapter 6 - Validity of an Approved Waiver

A. Extent of Waiver Validity

In general, an approved waiver is only valid for the grounds of inadmissibility specified in the application. Furthermore, a waiver is only valid for those crimes, events, incidents, or conditions specified in the waiver application. If a foreign national is later found inadmissible for a separate crime, event, incident or condition not already included in the approved waiver application, the foreign national is required to file another waiver application.

B. Length of Waiver Validity

A waiver’s validity depends on the underlying immigration benefit connected to the approved waiver.

1. Certain Nonimmigrants [1] Except for K, T, U, and V nonimmigrants.

An inadmissible applicant seeking to enter the United States as a nonimmigrant generally needs to obtain advance permission to enter the United States as a nonimmigrant. [2] The application is filed on Application for Advance Permission to Enter as Nonimmigrant (Form I-192). Advance permission to enter as a nonimmigrant [3] See INA 212(d)(3)(A). despite inadmissibility is referred to as a nonimmigrant waiver. Customs and Border Protection (CBP) generally adjudicates this waiver, which is temporary if approved. [4] For more information on when an applicant should file this waiver with CBP and when with USCIS, see Application for Advance Permission to Enter as a Nonimmigrant (Form I-192). This temporary permission does not ordinarily carry over to other benefit categories, such as other nonimmigrant categories, immigrant categories, visas, or adjustment of status.

2. Temporary Protected Status Holders [5] See INA 244(c).

An applicant seeking temporary protected status (TPS) status in the United States may be inadmissible. In most cases, a waiver is available to a TPS applicant in connection with his or her TPS application. If USCIS approves a TPS applicant’s waiver, the waiver is temporary and lasts for the duration of TPS only. [6] See INA 244(a) and INA 244(c). See 8 CFR 244.3 and 8 CFR 244.13. See Instructions for Application for Waiver of Grounds of Inadmissibility (Form I-601). If the applicant obtains a waiver in connection with an Application for Temporary Protected Status (Form I-821), the waiver is only valid for the TPS application. If granted, the waiver applies to subsequent TPS re-registration applications, but not to any other immigration benefit requests.

3. Refugees

An inadmissible refugee must apply for a waiver before seeking admission to the United States. [7] See INA 207(c)(3). A waiver granted to a refugee for admission to the United States is valid for purposes of seeking adjustment of status as a refugee. [8] See INA 209. In this case, the applicant does not have to file another waiver for the specific inadmissibility ground previously waived. [9] If the refugee is seeking adjustment of status on a basis other than INA 209, the refugee must apply for a new waiver as required by that particular benefit.

There is an exception, however, for medical waivers. If USCIS grants the refugee a waiver for purposes of admission to the United States because of a Class A condition, then the refugee is required to submit to another medical examination. If the second examination reveals a Class A condition, the refugee must file another waiver when seeking adjustment of status. [10] Refugees seek adjustment of status under INA 209. For more information on Class A conditions, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].

4. Lawful Permanent Residents

An inadmissible applicant seeking lawful permanent resident (LPR) status requires a waiver. As previously explained, the availability of a waiver depends on the specific category under which an applicant seeks LPR status.

A waiver granted in connection with any application for LPR status [11] This includes applications for an immigrant visa, fiancé(e) visa, legalization, and adjustment of status. permanently waives the ground of inadmissibility for purposes of any future immigration benefits application, including immigrant and nonimmigrant benefits. The waiver remains valid even if the LPR later abandons or otherwise loses LPR status. [12] See 8 CFR 212.7(a)(4)(ii).

This rule, however, does not apply to conditional residents or conditional grants issued to K-1 and K-2 nonimmigrants. [13] See 8 CFR 212.7(a)(4)(ii). For K-1 and K-2 nonimmigrants granted a waiver, see ​Subsection 6, K-1 and K-2 Nonimmigrants​ [​9 USCIS-PM ​A.6(​B)(6)​].

5. Conditional Permanent Residents [14] See INA 216. See 8 CFR 212.7(a)(4)(iv).

For most conditional permanent residents, [15] Foreign nationals lawfully admitted for permanent residence on a conditional basis. See INA 216. the waiver becomes valid indefinitely when the conditions are removed from the permanent resident status. This is the case even if the LPR later abandons or otherwise loses LPR status.

For certain criminal waivers [16] See INA 212(h). and a waiver of fraud or willful misrepresentation, [17] See INA 212(i). the validity of a waiver automatically ends if USCIS terminates conditional residency. There is no need for a separate termination notice and the applicant cannot appeal this waiver termination. If the immigration judge determines during removal proceedings that USCIS incorrectly terminated the conditional residence, the waiver becomes effective again. [18] See 8 CFR 212.7(a)(4)(iv).

6. K-1 and K-2 Nonimmigrants

If the applicant seeks a waiver to obtain a fiancé(e) visa (K-1 or K-2), the waiver’s approval is conditioned upon the K-1 nonimmigrant marrying the U.S. citizen who filed the fiancé(e) petition. [19] See 8 CFR 212.7(a)(4)(iii). If the K-1 nonimmigrant marries the petitioner, the approved waiver becomes valid indefinitely for any future immigration benefits application, whether immigrant or nonimmigrant.

The waiver remains valid even if the K nonimmigrant does not ultimately adjust status to an LPR or if the K nonimmigrant later abandons or otherwise loses LPR status. [20] See 8 CFR 212.7(a)(4)(ii).

If the K-1 nonimmigrant does not marry the petitioner, the K-1 and K-2 (if applicable) remain inadmissible for any application or any benefit other than the proposed marriage between the K-1 and the K nonimmigrant visa petitioner. [21] See 8 CFR 212.7(a)(4)(iii).

7. Inter-country Convention Adoptees

An approved waiver in conjunction with the provisional approval of a Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800) is conditioned upon the issuance of an immigrant or nonimmigrant visa for the child's admission to the United States and final approval of that Form I-800. If Form I-800 or the immigrant or nonimmigrant visa application is ultimately denied, the waiver is void. [22] See 8 CFR 204.313(g).

Footnotes

1.

Except for K, T, U, and V nonimmigrants.

 

2.

The application is filed on Application for Advance Permission to Enter as Nonimmigrant (Form I-192).

 

3.

See INA 212(d)(3)(A).

 

4.

For more information on when an applicant should file this waiver with CBP and when with USCIS, see Application for Advance Permission to Enter as a Nonimmigrant (Form I-192).

 

5.

See INA 244(c).

 

6.

See INA 244(a) and INA 244(c). See 8 CFR 244.3 and 8 CFR 244.13. See Instructions for Application for Waiver of Grounds of Inadmissibility (Form I-601). If the applicant obtains a waiver in connection with an Application for Temporary Protected Status (Form I-821), the waiver is only valid for the TPS application. If granted, the waiver applies to subsequent TPS re-registration applications, but not to any other immigration benefit requests.

 

7.

See INA 207(c)(3).

 

8.

See INA 209.

 

9.

If the refugee is seeking adjustment of status on a basis other than INA 209, the refugee must apply for a new waiver as required by that particular benefit.

 

10.

Refugees seek adjustment of status under INA 209. For more information on Class A conditions, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].

 

11.

This includes applications for an immigrant visa, fiancé(e) visa, legalization, and adjustment of status.

 

12.

See 8 CFR 212.7(a)(4)(ii).

 

13.

See 8 CFR 212.7(a)(4)(ii). For K-1 and K-2 nonimmigrants granted a waiver, see ​Subsection 6, K-1 and K-2 Nonimmigrants​ [​9 USCIS-PM ​A.6(​B)(6)​].

 

14.

See INA 216. See 8 CFR 212.7(a)(4)(iv).

 

15.

Foreign nationals lawfully admitted for permanent residence on a conditional basis. See INA 216.

 

16.

See INA 212(h).

 

17.

See INA 212(i).

 

18.

See 8 CFR 212.7(a)(4)(iv).

 

19.

See 8 CFR 212.7(a)(4)(iii).

 

20.

See 8 CFR 212.7(a)(4)(ii).

 

21.

See 8 CFR 212.7(a)(4)(iii).

 

22.

See 8 CFR 204.313(g).

 

Chapter 7 - Denials, Appeals, and Motions

An officer must specify the reason(s) for denying any waiver in the denial notice. [1] See 8 CFR 103.3(a)(1)(i). If an officer denies the waiver based on discretion, the officer should explain how the negative factors outweigh the positive factors.

If USCIS denies a waiver application, the governing regulation may provide that the applicant may appeal the denial. [2] See 8 CFR 103.3. The officer must specify in the decision letter if the applicant may:

File an appeal. If the decision is appealable, the officer must give the applicant proper notice of the possibility to appeal; or

File a motion to reopen or reconsider. If USCIS approves the motion, then the officer reviews the waiver application again as if it had never been adjudicated. Therefore, USCIS issues a new decision on the waiver application following a successful motion.

USCIS may also reconsider a waiver approval or denial on its own motion at any time. [3] See 8 CFR 103.5(a) and 8 CFR 212.7(a)(4)(v).

Footnotes

1.

See 8 CFR 103.3(a)(1)(i).

 

2.

See 8 CFR 103.3.

 

3.

See 8 CFR 103.5(a) and 8 CFR 212.7(a)(4)(v).

 

Appendices

Updates

POLICY ALERT – Waiver Policies and Procedures

August 23, 2017

​U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance to address the general policies and procedures applicable to the adjudication of waivers of inadmissibility.