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

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).

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.

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 application’s 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

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).

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.

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) .

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.

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).

A. Purpose

This part offers guidance concerning the adjudication of applications for those discretionary waivers of inadmissibility that require applicants to establish that refusal of their admission would result in “extreme hardship” to certain U.S. citizen or lawful permanent resident (LPR) family members.

B. Background

Under the Immigration and Nationality Act (INA), ^[1] See Immigration and Nationality Act, Pub. L. 82-414 , 66 Stat. 163 (June 27, 1952), as amended. admissibility is generally a requirement for admission to the United States, adjustment of status, and other immigration benefits. ^[2] See INA 212(a) and INA 245(a). The grounds that make foreign nationals inadmissible to the United States are generally described in section 212 of the INA.

Several statutory provisions authorize the Secretary of Homeland Security ^[3] See 6 U.S.C. 271(b). See Delegation No. 0150.1, “Delegation to the Bureau of Citizenship and Immigration Services” II, Z (June 5, 2003). to grant discretionary waivers of particular grounds of inadmissibility for those who demonstrate that a denial of admission would result in “extreme hardship” to specified U.S. citizen or LPR family members. These specified family members are known as “qualifying relatives.” ^[4] The classes of individuals who may serve as “qualifying relatives” depends on the specific text of the waiver provision involved. A U.S. citizen or LPR spouse or parent is a qualifying relative for most extreme hardship waivers. For certain other extreme hardship waivers, a U.S. citizen or LPR child, as well as an adult son or daughter, can be the qualifying relative. In the case of a K visa applicant, a U.S. citizen fiancé(e) is considered a U.S. citizen “spouse” qualifying relative. See 8 CFR 212.7(a) and 22 CFR 41.81(d) (K nonimmigrants). Finally, under some provisions, discretionary relief may be available upon a showing of extreme hardship to the applicants themselves. These include waivers of inadmissibility under INA 212(i)(1) (waiver of fraud-related inadmissibility for Violence Against Women Act (VAWA) self-petitioners), waivers of requirements for removing conditions on LPR status under INA 216(c)(4)(A), cancellation of removal under INA 240A(b)(2)(A)(v) adjudicated by the Executive Office for Immigration Review, and suspension of removal and cancellation of removal under Section 203 of Nicaraguan Adjustment and Central America Relief Act (NACARA), Pub. L. 105-100, 111 Stat. 2160, 2196 (November 19, 1997). See 8 CFR 240.64(c) and 8 CFR 1240.64(c). This guidance addresses USCIS’ adjudication of waiver applications that require a showing of extreme hardship to specified family members, not applications based on extreme hardship to applicants themselves.

Each of these statutory provisions conditions a waiver on both a finding of extreme hardship to one or more qualifying relatives and the favorable exercise of discretion. These waiver applications are adjudicated by USCIS (and in some cases by the Department of Justice’s Executive Office for Immigration Review). ^[5] See 6 U.S.C. 271(b). See Delegation No. 0150.1, “Delegation to the Bureau of Citizenship and Immigration Services” II, Z (June 5, 2003).

The various statutory waiver provisions specify different categories of qualifying relatives and permit waivers of different inadmissibility grounds. The provisions include:

•INA 212(a)(9)(B)(v) – Provides for waiver of the 3- and 10-year inadmissibility bars for unlawful presence. ^[6] See INA 212(a)(9)(B)(i). Qualifying relatives are limited to applicants’ U.S. citizen and LPR spouses and parents. ^[7] A U.S. citizen fiancé(e) is a qualifying relative in the case of a K nonimmigrant applicant. See 8 CFR 212.7(a) and 22 CFR 41.81(d) (K nonimmigrants).

•INA 212(h)(1)(B) ^[8] Other provisions of INA 212(h) authorize waivers of certain grounds of inadmissibility without an extreme hardship determination. See INA 212(h), INA 212(h)(1)(A), and INA 212(h)(1)(C). – Provides for waiver of inadmissibility based on crimes involving moral turpitude, multiple criminal convictions, prostitution and commercialized vice, and certain serious criminal offenses for which the foreign national received immunity from prosecution. ^[9] See INA 212(a)(2)(A)(i), INA 212(a)(2)(B), INA 212(a)(2)(D), and INA 212(a)(2)(E). Also provides a waiver of inadmissibility for a controlled substance violation insofar as the violation relates to a single offense of simple possession of 30 grams or less of marijuana. ^[10] See INA 212(a)(2)(A)(ii). Qualifying relatives are limited to applicants’ U.S. citizen and LPR spouses, parents, sons, and daughters. ^[11] The son or daughter must be related to the applicant in one of the ways specified in INA 101(b)(1), but he or she does not need to be a “child” (unmarried and under 21 years of age). Because the term “son or daughter” is not restricted with respect to age or marital status, it includes children as defined in INA 101(b)(1) as well as adult or married sons and daughters.

•INA 212(i)(1) – Provides for waiver of inadmissibility for certain types of immigration fraud or willful misrepresentations of material fact. ^[12] See INA 212(a)(6)(C)(i). For purposes of this waiver:

•Qualifying relatives are generally limited to applicants’ U.S. citizen and LPR spouses and parents.

•But if the applicant is a Violence Against Women Act (VAWA) self-petitioner, USCIS also must consider extreme hardship to the applicant himself or herself, or to a parent or child ^[13] The term “child” is limited to individuals who are unmarried, under 21 years of age, and related to the applicant in one of the ways specified in INA 101(b)(1). who is a U.S. citizen, LPR, or otherwise a qualified alien.

The factors discussed in this guidance apply to any waiver application in which a foreign national must establish extreme hardship to a qualifying relative. ^[14] Certain types of waivers utilize standards of hardship other than “extreme hardship.” For example, the “exceptional hardship” waiver that applies to the foreign residence requirement for certain exchange visitors under INA 212(e) is a less demanding standard than “extreme hardship.” By contrast, the “exceptional and extremely unusual hardship” standard for non-LPR cancellation of removal is more stringent that the extreme hardship standard under INA 240A(b). See Matter of Monreal-Aguinaga, 23 I&N Dec. 56 (BIA 2001). This guidance specifically applies only to “extreme hardship” determinations. Because the classes of individuals who may serve as qualifying relatives varies among the different waiver provisions, officers should carefully determine which individuals can serve as qualifying relatives under the relevant extreme hardship analysis.

A. Overview

Waivers of inadmissibility generally authorize U.S. immigration authorities to balance competing policy considerations when determining whether a foreign national should be admitted to the United States despite his or her inadmissibility.

On the one hand, the foreign national has engaged in conduct that Congress considers serious enough to render the individual inadmissible to the United States. On the other hand, Congress specifically authorized waivers of these grounds of inadmissibility for those cases in which the refusal of admission “would result in extreme hardship.” To meet this “extreme hardship” requirement, the applicant must show that refusal of admission would impose more than the usual level of hardship that commonly results from family separation or relocation. Congress clearly intended the waiver to be applied for purposes of family unity and with other humanitarian concerns in mind. ^[1] For example, see Matter of Lopez-Monzon, 17 I&N Dec. 280, 281 (BIA 1979) (“The intent of Congress in adding [the INA 212(i) waiver], which is evident from its language, was to provide for the unification of families, thereby avoiding the hardship of separation.”).

B. What is Extreme Hardship

The term “extreme hardship” is not expressly defined in the Immigration and Nationality Act (INA), in Department of Homeland Security (DHS) regulations, or in case law (although DHS regulations and certain Board of Immigration Appeals (BIA) decisions have provided some relevant guidance with respect to what may constitute extreme hardship in certain contexts). As the U.S. Supreme Court recognized in INS v. Jong Ha Wang, “[t]hese words are not self-explanatory, and reasonable men could easily differ as to their construction. But the [INA] commits their definition in the first instance to the Attorney General [and the Secretary of Homeland Security] and [their] delegates.” ^[2] See 450 U.S. 139, 144 (1981) (per curiam).

Therefore, “[t]he Attorney General [and the Secretary of Homeland Security] and [their] delegates have the authority to construe ‘extreme hardship’ narrowly should they deem it wise to do so.” ^[3] See INS v. Jong Ha Wang, 450 U.S. 139, 145 (1981) (per curiam). Conversely, “[a] restrictive view of extreme hardship is not mandated either by the Supreme Court or by [the BIA] case law.” ^[4] See Matter of Pilch, 21 I&N Dec. 627, 630 (BIA 1996). See Matter of L-O-G-, 21 I&N Dec. 413, 418 (BIA 1996).

USCIS recognizes that at least some degree of hardship to qualifying relatives exists in most, if not all, cases in which individuals with the requisite relationships are denied admission. Importantly, to be considered “extreme,” the hardship must exceed that which is usual or expected. ^[5] See 8 CFR 1240.58(b) (hardship must go “beyond that typically associated with deportation”) (former suspension of deportation). The federal courts and the BIA have frequently relied on cases involving the former suspension of deportation statute when interpreting extreme hardship waiver statutes, as these statutes employed the same language. See Hassan v. INS, 927 F.2d 465, 467 (9th Cir. 1991). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). But extreme hardship need not be unique, ^[6] See Matter of L-O-G-, 21 I&N Dec. 413, 418 (BIA 1996). nor is the standard as demanding as the statutory “exceptional and extremely unusual hardship” standard that is generally applicable to non-lawful permanent resident cancellation of removal. ^[7] See INA 240A(b). See Matter of Andazola-Rivas, 23 I&N Dec. 319, 322, 324 (BIA 2002) (holding the “exceptional and extremely unusual hardship” standard to be “significantly more burdensome than the ‘extreme hardship’ standard” and intimating that the applicant “might well” have prevailed under the latter standard even though she failed under the former). See Matter of Monreal-Aguinaga, 23 I&N Dec. 56, 59-64 (BIA 2001) (same).

A. Overview

In adjudicating a waiver request, the officer must ensure that the applicant meets all of the statutory requirements for the waiver, including the extreme hardship showing. If the applicant is eligible, the officer must then determine whether the applicant warrants a favorable exercise of discretion. In each case, the officer should analyze each part separately.

First, the applicant has the burden of proof to demonstrate by a preponderance of the evidence that he or she satisfies the statutory requirements of the waiver, including extreme hardship. ^[1] See INA 291 (providing that burden is on applicant for admission to prove he or she is “not inadmissible” and “entitled to the nonimmigrant [or] immigrant . . . status claimed”). See Matter of Mendez-Moralez, 21 I&N Dec. 296, 299 (BIA 1996) (holding that applicant for INA 212(h)(1)(B) waiver has burden of showing that favorable exercise of discretion is warranted, “as is true for other discretionary forms of relief”). See 8 CFR 212.7(e)(7) (provisional INA 212(a)(9)(B)(v) waivers). See INA 240(c)(4)(A) (in removal proceedings, the applicant for relief has the burden of proving that he or she is statutorily eligible and merits a favorable exercise of discretion). The applicant meets the preponderance of the evidence standard if the evidence shows that it is more likely than not that a denial of admission would result in extreme hardship to one or more qualifying relatives. ^[2] See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).

The finding of extreme hardship permits, but does not require, a favorable exercise of discretion. ^[3] See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 566 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). See Matter of Ngai, 19 I&N Dec. 245 (BIA 1984). See Matter of Shaughnessy, 12 I&N Dec. 810 (BIA 1968). Once the officer finds extreme hardship, the officer must then determine whether the applicant has shown that he or she merits a favorable exercise of discretion. ^[4] See Chapter 7, Discretion [9 USCIS-PM B.7].

B. Adjudicative Steps

The officer should complete the following steps when adjudicating a waiver application that requires a showing of extreme hardship to a qualifying relative. ^[5] In most cases, there will already have been a finding of inadmissibility, either by the consular officer adjudicating a visa application, or a USCIS officer adjudicating a related application, such as an Application to Register Permanent Residence or Adjust Status (Form I-485). A formal finding of inadmissibility is not required in adjudicating an Application for Provisional Presence Waiver (Form I-601A). The officer should identify all inadmissibility grounds and confirm that the ground(s) may be waived. This chart assumes that the inadmissibility grounds have been identified and that a waiver is available.

A. Establishing the Relationship to the Qualifying Relative

A USCIS officer must verify that the relationship to a qualifying relative exists. When the qualifying relative is the visa petitioner, an officer should use the approval of the Petition for Alien Relative (Form I-130) as proof that the qualifying relationship has been established. ^[1] An officer who has concerns about the qualifying relationship in the approved Form I-130 should consult with a supervisor.

If the applicant’s relationship to the qualifying relative has not already been established through a prior approved petition, the USCIS officer must otherwise verify that the relationship to the qualifying relative exists. Along with the waiver application, applicants should include primary evidence that supports the relationship, such as marriage certificates, ^[2] This includes marriages valid under the laws of the place of marriage. birth certificates, adoption papers, paternity orders, orders of child support, or other court or official documents.

If such primary evidence does not exist or is otherwise unavailable, the applicant should explain the reason for the unavailability and submit secondary evidence of the relationship, such as school records or records of religious or other community institutions. If secondary evidence is also not reasonably available, the applicant may submit written testimony from a witness or witnesses with personal knowledge of the relevant facts. ^[3] See 8 CFR 103.2(b)(2)(i). If evidence establishing the relationship is missing or insufficient, the officer should issue a Request for Evidence (RFE) in accordance with USCIS policy.

If the applicant claims that the qualifying relative would suffer extreme hardship in part due to the hardship that would be suffered by a non-qualifying relative, the applicant must submit evidence establishing the claimed relationships. ^[4] See Section D, Effect of Hardship Experienced by a Person who is not a Qualifying Relative [9 USCIS-PM B.4(D)]. If such evidence is missing or insufficient, the officer should issue an RFE in accordance with USCIS policy.

B. Separation or Relocation

With respect to the requirement that the refusal of the applicant’s admission “would result in” extreme hardship to a qualifying relative, there are 2 potential scenarios to consider. Either:

•The qualifying relative(s) may remain in the United States separated from the applicant who is denied admission (separation); or

•The qualifying relative(s) may relocate overseas with the applicant who is denied admission (relocation).

In either scenario, depending on all the facts of the particular case, the refusal of admission may result in extreme hardship to one or more qualifying relatives.

Separation may result in extreme hardship if refusal of the applicant’s admission would cause hardship (for example, suffering or harm) to a qualifying relative that is greater than the common consequences of family separation. ^[5] For discussion of the common consequences of family separation and relocation, see Chapter 5, Extreme Hardship Considerations and Factors, Section B, Common Consequences [9 USCIS-PM B.5(B)]. When assessing extreme hardship claims based on separation, USCIS focuses on how denial of the applicant’s admission would affect the qualifying relative’s well-being in the United States given the separation of the qualifying relative from the applicant.

Relocation may result in extreme hardship if refusal of the applicant’s admission would cause hardship (for example, suffering or harm) to a qualifying relative that is greater than the common consequences of family relocation. When assessing extreme hardship claims based on relocation, USCIS focuses on how denial of the applicant’s admission would affect the qualifying relative’s well-being given the qualifying relative’s relocation outside the United States.

An applicant may show that extreme hardship to a qualifying relative would result from both separation and relocation. ^[6] If an applicant who submits evidence related to both relocation and separation ultimately demonstrates extreme hardship with regard to only one scenario, the USCIS officer should determine, possibly through the issuance of an RFE, whether the qualifying relative has established which scenario is more likely to result from a denial of admission. However, an applicant is not required to show extreme hardship under both scenarios. An applicant may submit evidence demonstrating which of the 2 scenarios would result from a denial of admission and may establish extreme hardship to one or more qualifying relatives by showing that either relocation or separation would result in extreme hardship. ^[7] See, for example, Matter of Calderon-Hernandez, 25 I&N Dec. 885 (BIA 2012) (remanding for determination of hardship based only on separation after immigration judge had rejected hardship based on relocation). See Matter of Recinas, 23 I&N Dec 467 (BIA 2002) (consideration of hardship based only on relocation). See Cerrillo-Perez v. INS, 809 F.2d 1419 (9th Cir. 1987) (ordering consideration of extreme hardship based on separation after Board of Immigration Appeals found no hardship based on relocation). See Salcido-Salcido v. INS, 138 F.3d 1292 (9th Cir. 1998) (same). See Mendez v. Holder, 566 F.3d 316 (2nd Cir. 2009) (ordering consideration of hardship only under relocation). See Figueroa v. Mukasey, 543 F.3d 487 (9th Cir. 2008) (remanding assessment of hardship only under relocation).

If the applicant seeks to demonstrate extreme hardship based on separation or relocation, the applicant’s evidence must demonstrate that the designated outcome “would result” from the denial of the waiver. The applicant may meet this burden by submitting a statement from the qualifying relative certifying under penalty of perjury that the qualifying relative would relocate or separate if the applicant is denied admission. The statement should be sufficiently detailed to adequately convey to USCIS the reasons why either separation or relocation would likely result from a denial of admission. The applicant may also submit documentation or other evidence, if available, in support of this statement.

Due to the subjective factors inherently involved in decisions involving separation or relocation, a credible statement from the qualifying relative may be the best available evidence for establishing whether he or she would separate or relocate if the applicant’s admission is denied. Among other things, such decisions generally involve the weighing of many deeply personal and subjective factors that cannot be objectively assessed by others.

Qualifying relative spouses, for example, are faced with the choice of separating from their applicant spouses to remain in the United States or leaving the United States to relocate abroad with their applicant spouses. The former may involve, among other things, the significant decline in the emotional support and affection between spouses; the latter may involve leaving behind important ties to the United States, including family and friends in the country, jobs and career opportunities, educational opportunities, availability of medical care, and safety and security. Decisions based on such complex human factors may be difficult to prove other than through credible statements.

However, if the USCIS officer determines that such a statement is not plausible or credible (including because it is inconsistent with the evidence of hardship presented), the officer may request additional evidence from the applicant to support the designation that the qualifying relative would separate or relocate. In such cases, the officer must consider the subjective nature of the inquiry and the difficulty involved in proving intent in this context through documentary or other supporting evidence.

Moreover, the officer must make determinations based on the evidence and arguments presented and not on the officer’s personal moral view as to whether a particular qualifying relative “ought” to either relocate or separate in an individual case. Generally, in the absence of inconsistent evidence, a credible, sworn statement from the qualifying relative of his or her intent to relocate or separate would generally suffice to demonstrate what the qualifying relative plans to do.

Ultimately, the officer must be persuaded that it is more likely than not that a qualifying relative will suffer extreme hardship resulting from the denial of admission. In a case in which the applicant chooses to rely on evidence showing that extreme hardship would result from relocation, the officer must determine based on a preponderance of the evidence that relocation would occur. The same principle applies if the applicant chooses to rely on evidence showing that extreme hardship would result from separation. If the evidence presented fails to persuade the officer, the officer should provide an opportunity for the applicant to submit additional evidence—either to show that relocation or separation would occur, or to demonstrate that extreme hardship would result under both scenarios.

Finally, special considerations may arise in cases involving those limited statutory waivers for which a child may serve as a qualifying relative. ^[8] This is authorized by statute in cases of waivers of criminal grounds under INA 212(h)(1)(B). In such cases, a parent who asserts that he or she will separate from a child so that the child may remain in the United States bears the burden of overcoming the general presumption that the child will relocate with the parent. Among other factors, the parent should generally be expected to explain the arrangements for the child’s care and support.

The failure to provide a credible plan for the care and support of the child would cast doubt on the parent’s contention that he or she will actually leave the child behind in the United States. ^[9] See Matter of Ige, 20 I&N Dec. 880, 885 (BIA 1994) (holding that, for purposes of the former suspension of deportation, neither the parent’s “mere assertion” that the child will remain in the United States nor the mere “possibility” of the child remaining is entitled to “significant weight;” rather, the Board expects evidence that “reasonable provisions will be made for the child’s care and support”). See Iturribarria v. INS, 321 F.3d 889, 902-03 (9th Cir. 2003) (finding that in suspension of deportation case, the petitioner could not claim extreme hardship from family separation without evidence of the family’s intent to separate). See Perez v. INS, 96 F.3d 390, 393 (9th Cir. 1996) (holding that agency properly required, as means of reducing speculation in considering extreme hardship element in a suspension of deportation case, affidavits and other evidentiary material establishing that family members “will in fact separate”). Moreover, if the parent represents that the child will be left behind, USCIS may require the parent to state that understanding in a statement made under penalty of perjury. ^[10] See Matter of Ige, 20 I&N Dec. 885, 885 (BIA 1994) (requiring such an affidavit in suspension of deportation cases). Such a statement is not required, however, if the parent credibly represents that the child will be left behind in the care of the other parent ^[11] See Matter of Calderon-Hernandez, 25 I&N Dec. 885 (BIA 2012) (concluding that when a child will stay behind with a parent in the United States, regardless of that parent’s immigration status, the waiver applicant need not provide documentary evidence regarding the child’s care). (which may itself give rise to extreme hardship depending on the totality of the circumstances).

C. Effect on Extreme Hardship if Qualifying Relative Dies

Generally, the applicant must show extreme hardship to a qualifying relative who is alive at the time the waiver application is both filed and adjudicated. ^[12] See Matter of Federiso, 24 I&N Dec. 661 (BIA 2008). Unless a specific exception applies, an applicant cannot show extreme hardship if the qualifying relative has died.

INA 204(l) provides the only exception. In general, INA 204(l) allows USCIS to approve, or reinstate approval of, an immigrant visa petition and certain other benefits even though the petitioner or the principal beneficiary has died. INA 204(l) also provides that it applies generally to “any related applications,” thereby including applications for waivers related to immigrant visa petitions.

Under this provision, a foreign national who establishes that the requirements of INA 204(l) have been met may apply for a waiver even though the qualifying relative for purposes of extreme hardship has died. Moreover, in cases in which the deceased individual is both the qualifying relative for purposes of INA 204(l) and the qualifying relative for purposes of the extreme hardship determination, the death of the qualifying relative is treated as the functional equivalent of a finding of extreme hardship. ^[13] See AFM Chapter 10.21(c)(5), Waivers and Other Related Applications.

Section 204(l) also applies in the case of widows and widowers of U.S. citizens whose pending or approved petition was converted to a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), ^[14] See 8 CFR 204.2(i)(1)(iv). including if the petition later reverts to a Form I-130 petition based on a subsequent remarriage. ^[15] For more detailed guidance on the approval of petitions and applications after the death of a qualifying relative under INA 204(l), see Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act, issued December 16, 2010, and Approval of a Spousal Immediate Relative Visa Petition under Section 204(l) of the Immigration and Nationality Act after the Death of a U.S. Citizen Petitioner, issued November 18, 2015. See Williams v. DHS, 741 F.3d 1228 (11th Cir. 2014) (noting congressional intent in not expressly including a “remarriage bar” in 204(l) and finding “[t]hat a spouse eventually remarries does nothing to impugn the validity of the original I-130 beneficiary-petition or the first marriage, and leaves the surviving spouse in the same position she would have been but for the untimely passing of her husband, an event beyond her control.”). USCIS applies this ruling to all cases it adjudicates.

D. Effect of Hardship Experienced by a Person who is not a Qualifying Relative

On its own, hardship to a non-qualifying relative ^[16] For example, hardship to the applicant’s child when the particular waiver provision lists only the applicant’s spouse and parents as qualifying relatives. cannot satisfy the extreme hardship requirement. In some cases, however, the hardship experienced by non-qualifying relatives can be considered as part of the extreme hardship determination, but only to the extent that such hardship affects one or more qualifying relatives. ^[17] See Matter of Gonzalez Recinas, 23 I&N Dec. 467, 471 (BIA 2002) (“In addition to the hardship of the United States citizen children, factors that relate only to the respondent may also be considered to the extent that they affect the potential level of hardship to her qualifying relatives.”).

A. Totality of the Circumstances

The officer must make extreme hardship determinations based on the factors, arguments, and evidence submitted. ^[1] See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). See Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996). See Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). Therefore, the officer should consider any submission from the applicant bearing on the extreme hardship determination. The officer may also consider factors, arguments, and evidence relevant to the extreme hardship determination that the applicant has not specifically presented, such as those addressed in Department of State (DOS) information on country conditions ^[2] See DOS Country Reports on Human Rights Practices and DOS Travel Warnings. or other U.S. Government determinations regarding country conditions, including a country’s designation for Temporary Protected Status (TPS). Officers must base their decisions on the totality of the evidence and circumstances presented.

B. Common Consequences

The common consequences of denying admission, in and of themselves, do not warrant a finding of extreme hardship. ^[3] See Matter of Ngai, 19 I&N Dec. 245 (BIA 1984) (“Common results of the bar, such as separation, financial difficulties, etc. in themselves are insufficient to warrant approval of an application unless combined with much more extreme impacts”). The Board of Immigration Appeals (BIA) has held that the common consequences of denying admission include, but are not limited to, the following:

•Family separation;

•Economic detriment;

•Difficulties of readjusting to life in the new country;

•The quality and availability of educational opportunities abroad;

•Inferior quality of medical services and facilities; and

•Ability to pursue a chosen employment abroad.

While extreme hardship must involve more than the common consequences of denying admission, the extreme hardship standard is not as high as the significantly more burdensome “exceptional and extremely unusual” hardship standard that that applies to other forms of immigration adjudications, such as cancellation of removal. ^[4] See INA 240A(b)(1)(D).

C. Factors Must Be Considered Cumulatively

The officer must consider all factors and consequences in their totality and cumulatively when assessing whether a qualifying relative will experience extreme hardship either in the United States or abroad. In some cases, common consequences that on their own do not constitute extreme hardship may result in extreme hardship when assessed cumulatively with other factors. ^[5] See Matter of O-J-O-, 21 I&N Dec. 381, 383 (BIA 1996).

For example, if a qualifying relative has a medical condition that alone does not rise to the level of extreme hardship, the combination of that hardship and the common consequences of inferior medical services, economic detriment, or readjusting to life in another country may cumulatively cause extreme emotional or financial hardship for the qualifying relative when considering the totality of the circumstances.

Ordinarily, for example, the fact that medical services are less comprehensive in another country is a common consequence of denying admission; but the inferior quality of medical services, considered along with the individual’s specific medical conditions, may create sufficient difficulties as to rise to the level of extreme hardship in combination with all the other consequences.

The officer must weigh all factors individually and cumulatively, as follows:

•First, the officer must consider whether any factor set forth individually rises to the level of extreme hardship under the totality of the circumstances.

•Second, if any factor alone does not rise to the level of extreme hardship, the officer must consider all factors together to determine whether they cumulatively rise to the level of extreme hardship. This includes hardships to multiple qualifying relatives.

When considering the factors, whether individually or cumulatively, all factors, including negative factors, must be evaluated in the totality of the circumstances.

D. Examples of Factors that May Support a Finding of Extreme Hardship

The chart below lists factors that an applicant might present and that would be relevant to determining whether an applicant has demonstrated extreme hardship to a qualifying relative. This list is not exhaustive; circumstances that are not on this list may also be relevant to finding extreme hardship.

The presence of one or more of the factors below in a particular case does not mean that extreme hardship would necessarily result from a denial of admission. But they are factors that may be encountered and should be considered in their totality and cumulatively in individual cases. All hardship factors presented by the applicant should be considered in the totality of the circumstances in making the extreme hardship determination.

Some of the factors listed below apply when the qualifying relative would remain in the United States without the applicant. Other factors apply when the qualifying relative would relocate abroad. Some of the factors might apply under either circumstance.

E. Particularly Significant Factors

The preceding list identifies factors that may bear on whether a denial of admission would result in extreme hardship. Below are factors that USCIS has determined often weigh heavily in support of finding extreme hardship. An applicant who seeks to demonstrate the presence of one of the enumerated circumstances must submit sufficient reliable evidence to support the existence of such circumstance(s) and show that the circumstance will cause extreme hardship to the qualifying relative. The mere presence of an enumerated circumstance does not create a presumption of extreme hardship. The ultimate determination of extreme hardship must be based on the totality of the circumstances present in the individual case.

It is important to emphasize that the enumerated circumstances listed below are specifically highlighted only because they are often likely to support findings of extreme hardship. Other hardships not enumerated may also rise to the level of extreme, even if they vary significantly than those listed below. ^[10] See Section D, Examples of Factors that Might Support Finding of Extreme Hardship [9 USCIS-PM B.5(D)].

Eligibility for an immigration benefit ordinarily must exist at the time of filing and at the time of adjudication. ^[11] See 8 CFR 103.2(b)(1). However, considering the nature of the particularly significant factors described below, the presence of one or more of these circumstances at the time of adjudication should be considered by a USCIS officer even if the circumstance arose after the filing of the waiver request.

F. Hypothetical Case Examples

Below are hypothetical cases that can help officers determine when cases present factors that rise to the level of extreme hardship. These hypotheticals are not meant to be exhaustive or all-inclusive with respect to the facts or scenarios that may be presented for adjudication and that may give rise to extreme hardship. Although a USCIS officer presented with similar scenarios as those presented in the hypotheticals could reasonably reach the same conclusions described below, extreme hardship determinations are made on a case-by case basis in the totality of the circumstances. An extreme hardship determination will always depend on the facts of each individual case.

For purposes of the following hypotheticals, it is assumed that:

•The applicant is inadmissible under a ground that may be waived based on a showing of extreme hardship to a qualifying relative spouse or parent. ^[21] None of these examples involves a waiver authority where the child is a qualifying relative under the Immigration and Nationality Act (INA). For more on qualifying relatives, see Chapter 4, Qualifying Relative [9 USCIS-PM B.4].

•The facts asserted in the hypotheticals are supported by appropriate documentation.

Scenario 1

Tyler was admitted to the United States as a nonimmigrant 5 years ago. Three years after Tyler’s entry, Tyler married Pat, a U.S. citizen spouse. Tyler seeks a waiver claiming that Pat would suffer extreme hardship if Tyler were denied admission to the United States.

Pat submits a credible, sworn statement indicating that if Tyler is refused admission, Pat would relocate to Tyler’s native country. Tyler and Pat have been married for 2 years. Pat is a sales clerk.A similar job in the country of relocation would pay far less than Pat earns in the United States. In addition, although Pat has visited the country of relocation several times, Pat is not fluent in the country’s language and lacks the ties that would facilitate employment opportunities and social and cultural integration.

Tyler is a skilled laborer who similarly would command a much lower salary in the country of relocation, but who was, prior to coming to the United States, gainfully employed. The couple is renting an apartment in the United States, does not own any real estate or other significant property, and has no children. Pat and Tyler do not have any other family, either in the United States or in the country of relocation.

Analysis of Scenario 1

These facts alone generally would not favor a finding of extreme hardship. The hardships to Pat, even when aggregated, include only common consequences of relocation—economic loss and the social and cultural difficulties arising mainly from Pat ’s inability to speak the language fluently.

Scenario 2

The facts are the same as in Scenario 1 except that Pat (who is Tyler’s U.S. citizen spouse and would relocate) has a chronic medical condition requiring regular visits to the doctor, and Tyler is an unskilled worker who would command a much lower salary in the country of relocation. In addition, Pat has family that lives nearby and is a crucial part of Tyler’s support system. Pat and Tyler are also active members of their local community and have friends who often help out when Pat’s family is not available. Based on the care received from the doctor and the support received from family and friends, Pat is able to manage the chronic condition.

Pat submits a credible, sworn statement that Pat will relocate with Tyler despite Pat’s medical condition, and the evidence shows under the totality of the circumstances that Pat will relocate with Tyler. Pat’s doctor provides a statement that confirms that Pat will continue to progress and function well if Pat keeps receiving medical treatment and the support from family and other members of Pat’s existing social support network. While the doctor cannot fully attest to the availability of care in Tyler’s native country, the doctor is able to attest that moving to another country and disrupting Pat ’s medical care and support network will cause Tyler significant difficulties. The doctor’s statement also states that Pat will likely not be able to work without the support system Pat has in the United States.

Analysis of Scenario 2

These facts would generally favor a finding of extreme hardship. The aggregate hardships to Pat now include not only the economic losses, diminution of employment opportunities, and social, cultural, and linguistic difficulties (which are generally common consequences of relocation) but also the additional medical hardship that Pat would experience if Pat relocates to Tyler’s native country. The attestation of Pat’s doctor expressing concerns about the disruption in medical care, the effect of losing support from Pat’s family and social environment, and the possibility of Pat not being able to accept employment, would generally favor a finding of extreme hardship.

Scenario 3

Assume the facts are the same as originally presented in Scenario 1 (without the additional facts from Scenario 2), but now with the added facts that Tyler also has LPR parents who live in the United States. Pat submits a credible, sworn statement indicating that Pat would relocate with Tyler and that Tyler’s LPR parents would remain in the United States. Again, when analyzing the additional evidence under the totality of the circumstances, the the evidence shows Pat will still relocate with Tyler.

Tyler and Pat both have a close relationship with Tyler’s parents, who are elderly and non-native English speakers. Tyler regularly transports the parents to medical appointments, translates medical and other instructions, and offers them significant emotional support. As a result of the separation from Tyler and Tyler’s spouse, Tyler’s parents would suffer significant emotional hardship.

Analysis of Scenario 3

Based on the totality of the evidence presented, the addition of these facts would generally favor a finding of extreme hardship. There are now 3 qualifying relatives (Tyler’s U.S. citizen spouse and Tyler’s two LPR parents). Although the aggregated hardships to Tyler’s spouse alone (under Scenario 1) include only common consequences of a refusal of admission, aggregating those hardships with the hardships to Tyler’s elderly parents, which include the potential disruption of their medical care, loss of ability to navigate their surroundings in English, and their significant emotional hardship resulting from the loss of their child’s support, would generally tip the balance in favor of a finding of extreme hardship.

Scenario 4

EF has lived continuously in the United States since entering without inspection 4 years ago. She has been married to GH, her U.S. citizen husband, for 2 years. EF seeks a waiver claiming that GH would suffer extreme hardship if EF were denied admission to the United States. GH has a moderate income, and EF works as a housecleaner for low wages. GH submits a credible, sworn statement that he would remain in the United States, and thus would separate from EF, if she is denied the waiver. Upon separating, the couple would lose the income EF earns. In addition to losing EF’s income, GH is committed to sending remittances to EF once she leaves, in whatever amount GH can afford. EF and GH do not have children, and GH does not have family in the United States.

Analysis of Scenario 4

These facts alone generally would not rise to the level of extreme hardship, even if the hardships to the qualifying relative are aggregated. The hardships to GH do not rise above the common consequences of separation and economic loss.

Scenario 5

JK has lived continuously in the United States since entering without inspection 6 years ago. She married LM, her U.S. citizen husband, 2 years ago. JK seeks a waiver on the basis that LM would suffer extreme hardship if JK were denied admission to the United States. JK and LM live near LM’s family and friends, and LM has spent little time traveling abroad. He does not speak the language of the country to which JK would return if she is denied admission, and LM’s employment opportunities in that country would be less desirable than in the United States.

Additionally, DOS has issued a travel warning that strongly advises against travel to specific regions in the country to which JK would return, including the region where her family lives. The region-specific warning affirmatively recommends against non-essential travel to that region, citing the high rate of kidnapping and murder. LM submits a credible, sworn statement indicating that due to his recent marriage, the difficulties JK would face in her country, and his commitment to supporting her however possible, he would relocate to remain with JK if she is denied a waiver.

Analysis of Scenario 5

The totality of these circumstances generally would favor a finding of extreme hardship, significantly in light of the nature and severity of the DOS travel warning. Although the other hardships present in the case are common consequences of relocation, LM has also demonstrated that he will return to the region of a country that is the subject of the DOS travel warning, which advises against non-essential travel to that region. The travel warning recommending against travel to that particular region of that country to which LM would relocate is a particularly significant factor that would often weigh heavily in support of a finding of extreme hardship. If the travel warning were less severe or only temporary, the warning would not qualify as a particularly significant factor but would be another factor to be considered in the totality of the circumstances by the officer.

Alternatively, in some circumstances where DOS has issued travel warnings with regard to a particular region of a country, the applicant and qualifying relative may relocate to a different region of the country that is not subject to a travel warning. In such a situation, the fact of the region-specific travel warning would not itself constitute a particularly significant factor; however, the hardships arising from relocating to another region of the country remains a factor to be considered and may result in a finding of extreme hardship, based on the totality of the circumstances. ^[22] If the entire country is the subject of a travel warning that affirmatively recommends against travel or residence, the particularly significant factor will exist and would often weigh heavily in support of a finding of extreme hardship. For more on travel warnings, see Section E, Particularly Significant Factors, Subsection 4, DOS Travel Warnings [9 USCIS-PM B.5(E)(4)].

Scenario 6

OP has lived continuously in the United States since entering without inspection 7 years ago. After dating and living together for 5 years, OP married her same-sex partner SQ, a U.S. citizen. OP seeks a waiver claiming that SQ would suffer extreme hardship if OP were denied admission to the United States. SQ submits a credible, sworn statement indicating that she would remain in the United States and separate from OP if the waiver is denied.

SQ owns a business in the United States, and OP has continuously supported the business, including by helping out as an office manager. SQ would not be able to keep the business running successfully without OP because of the expense of hiring an office manager. In addition, the DOS country report indicates that women in OP’s country of relocation generally may not work outside the home except in an extremely limited set of professions (such as teaching) for which OP is not qualified.

The country report also indicates that same-sex marriages are not recognized in that country, that same-sex sexual conduct is illegal, and that official societal discrimination and harassment (in some circumstances even giving rise to physical threats or harm) based on sexual orientation or gender identity is prevalent in many areas of life.

Based on these factors, SQ fears OP would be discriminated against and potentially be at risk of physical harm based on her sexual orientation. SQ has been in therapy due to depression and anxiety after she learned that her wife may be denied admission to the United States and that her wife would have to remain in a country where she risks discrimination and physical harm. The couple does not provide other evidence of hardship.

Analysis of Scenario 6

These facts would generally favor a finding of extreme hardship. SQ would face serious economic detriment if OP is denied admission. In addition, the country reports show that SQ’s marriage to OP would not be recognized in OP’s native country, and that OP’s marriage to a person of the same gender is a common cause for social ostracism, discrimination, and potential physical danger in OP’s native country. The country reports further show that OP’s access to education, employment and health care could be limited due to OP’s sexual orientation and gender, thereby negatively affecting OP’s subsistence.

SQ would face psychological trauma based on the fear that OP would be harassed or threatened because of her sexual orientation. SQ’s trauma based on her fear that OP will be ostracized and persecuted in OP’s native country based on her sexual orientation and gender are factors that in the totality of circumstances would ordinarily rise to the level of extreme hardship.

Scenario 7

TU married his U.S. citizen wife, VW, 3 years ago. TU seeks a waiver on the ground that VW would suffer extreme hardship if TU were denied admission to the United States. Before becoming a U.S. citizen, VW and some members of her family fled persecution from her native country, and they were granted asylum in the United States. TU is of the same nationality. VW submits a credible, sworn statement that she would remain in the United States and separate from TU if the waiver is denied. The evidence also supports the conclusion that the return of TU to that country would cause VW particular anxiety and psychological stress, due both to the limitations on VW’s ability to visit her husband and to the harm TU may face in the country of return due to his relationship to VW.

Analysis of Scenario 7

These facts generally would favor a finding of extreme hardship. TU and VW are of the same nationality, and TU would return to the country from which VW fled. The fact that VW was previously granted asylum from the country of relocation is a particularly significant factor that would often weigh heavily in support of a finding of extreme hardship. The fact that VW and members of her family were previously granted asylum from the country of return shows that she is at risk of persecution if she were to return to that country to even visit her husband.

She has also submitted credible evidence indicating that she would suffer additional anxiety and psychological stress from the harm her husband may face due to his relationship with her and her family. The totality of these circumstances, including the particularly significant factor of VW’s grant of asylum, would generally result in a finding of extreme hardship.

Scenario 8

XY married her U.S. citizen husband, ZA, 9 years ago. XY seeks a waiver on the basis that ZA would suffer extreme hardship if XY were denied admission to the United States. XY and ZA have a 3-year old son and a 2-year old daughter. XY submits credible evidence showing that she is the primary caretaker of the children and that ZA is the primary income earner. His wages are not sufficient to pay for childcare and the couple does not have family that can provide childcare for the children.

ZA submits a credible, sworn statement indicating that he will remain in the United States with their children separated from XY if the waiver is denied. The evidence also indicates that XY will have very limited employment opportunities in the country of return because of her limited education. Whatever income XY will be able to earn in the country of return will be spent on her subsistence and will be insufficient to allow her to contribute to childcare or other family needs in the United States. Due to the lack of childcare options available to ZA, he will be required to become the sole caregiver of the children, while simultaneously striving to maintain his role as the family’s sole income earner.

If ZA is unable to retain his job due to the assumption of primary caregiving responsibilities, he will lose the income necessary to support his children. The dual burden of being both the primary income earner and sole caregiver will create significant psychological, emotional, and financial stresses for ZA. Additionally, the evidence shows that the displacement of childcare would impact the emotional state and development of the children, which would require further care and attention on the part of ZA.

Analysis of Scenario 8

These facts would generally favor a finding of extreme hardship. Although ZA’s children are not qualifying relatives for purposes of demonstrating extreme hardship in this case, the hardship to ZA caused by becoming primarily responsible for the children’s care, while maintaining his role as primary income earner, would implicate the particularly significant factor for substantial displacement of care of the applicant’s children.

In this case, ZA and XY submitted credible evidence that XY cannot contribute to the family’s needs, that ZA is unable to earn sufficient income for family needs if he must assume primary caregiving responsibilities, and that ZA otherwise lacks the resources or support network to replace either the primary caregiving responsibilities he would need to assume or the primary income-earning role that has been the source of the family’s support.

The evidence also shows that the displacement of childcare would impact the children in a manner that would require additional care and attention by ZA and would thus further impact ZA’s ability to care for his children. Absent other facts that diminish the impacts of the separation, this scenario would generally rise to the level of extreme hardship based on the totality of the circumstances.

Alternatively, this particularly significant factor may also be presented in a case where the applicant is the primary income earner and the qualifying relative is the primary caretaker of the children. If the applicant is refused admission, the qualifying relative could be required, depending on the circumstances, to take on the additional responsibilities of being the primary income earner in addition to continuing his or her role as primary caretaker.

In cases where this heightened responsibility would threaten the qualifying relative’s ability to meet basic subsistence needs for the family, the significant emotional and psychological stress caused by the added burdens would often weigh heavily in support of a finding of extreme hardship. ^[23] For more on substantial displacement of care, see Section E, Particularly Significant Factors, Subsection 5, Substantial Displacement of Care of Applicant’s Children [9 USCIS-PM B.5(E)(5)].

A. Evidence

Most instructions to USCIS forms list the types of supporting evidence that applicants may submit with those forms. ^[1] A waiver that requires a showing of extreme hardship to a qualifying relative is currently submitted on an Application for Waiver of Grounds of Inadmissibility (Form I-601) or an Application for Provisional Unlawful Presence Waiver (Form I-601A). The instructions to the relevant waiver forms describe some of the extreme hardship factors that may be considered, along with certain possible types of supporting evidence that may be submitted. USCIS accepts any type of probative evidence, including, but not limited to:

•Medical or mental health documentation and evaluations by licensed professionals;

•Official documents, such as birth certificates, marriage certificates, adoption papers, paternity orders, orders of child support, and other court or official documents;

•Photographs;

•Evidence of employment or business ties, such as payroll records or tax statements;

•Bank records and other financial records;

•Membership records in community organizations, confirmation of volunteer activities, or records related to cultural affiliations;

•Newspaper articles and reports;

•Country reports from official and private organizations;

•Personal oral testimony; ^[2] An officer who interviews an applicant or other witness in person must place the witness under oath or affirmation before beginning the interview and must note in the record that the person was placed under oath along with the date and place of the interview. The officer should also take notes or record the testimony. and

•Affidavits, statements that are not notarized but are signed “under penalty of perjury” as permitted by 28 U.S.C. 1746, or letters from the applicant or any other person.

If the applicant indicates that certain relevant evidence is not available, the applicant must provide a reasonable explanation for the unavailability, along with available supporting documentation. ^[3] See 8 CFR 103.2(b). Depending on the country where the applicant is from, is being removed to, or resides, certain evidence may be unavailable. If the applicant alleges that documentary evidence such as a birth certificate is unavailable, the officer may consult the Department of State (DOS) Foreign Affairs Manual, ^[4] See the DOS website. when appropriate, to verify whether these particular documents are ordinarily unavailable in the relevant country. ^[5] See also DOS Bureau of Consular Affairs website for more information on birth certificates under reciprocity by country.

B. Burden of Proof and Standard of Proof

The applicant bears the burden of proving that the qualifying relative would suffer extreme hardship. He or she must establish eligibility for a waiver by a preponderance of the evidence. ^[6] See Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) (identifying preponderance of the evidence as the standard for immigration benefits generally, in that case naturalization). If the applicant submits relevant, probative, and credible evidence that leads the USCIS officer to believe that it is “more likely than not” that the assertion the applicant seeks to prove is true, then the applicant has satisfied the preponderance of the evidence standard of proof as to that assertion. ^[7] See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (preponderance of the evidence means more likely than not).

The mere assertion of extreme hardship alone does not establish a credible claim. Individuals applying for a waiver of inadmissibility should provide sufficient evidence to support and substantiate assertions of extreme hardship to the qualifying relative(s). Each assertion should be accompanied by evidence that substantively supports the claim absent a convincing explanation why the evidence is unavailable and could not reasonably be obtained. The officer should closely examine the evidence to ensure that it supports the applicant’s claim of hardship to the qualifying relative.

To illustrate, an applicant who claims that the qualifying relative has severe, ongoing medical problems will not likely be able to establish the existence of these problems without providing medical records documenting the qualifying relative’s condition. Officers cannot substitute their medical opinion for a medical professional’s opinion; instead the officer must rely on the expertise of reputable medical professionals.

A credible, detailed statement from a doctor may be more meaningful in establishing a claim than dozens of test results that are difficult for the officer to decipher. However, nothing in such a case changes the requirement that all evidence submitted by applicants should be considered to evaluate the totality of the circumstances.

Similarly, if the applicant claims that the qualifying relative will experience severe financial difficulties, the applicant will not likely be able to establish these difficulties without submitting financial documentation. This could include, but is not limited to, bank account statements, employment and income records, tax records, mortgage statements, leases, and proof of any other financial liabilities or earnings.

If not all of the required initial evidence has been submitted, or the officer determines that the totality of the evidence submitted does not meet the applicable standard of proof, the officer should issue a Request for Evidence (RFE) in accordance with USCIS policy.

In considering whether the applicant’s evidence is sufficient to meet the applicant’s burden of proof, the officer will consider whether the applicant has complied with applicable requirements to submit information and supporting documentation and whether the evidence is credible, persuasive, and refers to specific facts sufficient to demonstrate that the burden of proof has been satisfied and that applicant warrants a favorable exercise of discretion. In considering whether the applicant’s evidence is credible, the officer will consider the totality of the circumstances and all relevant factors and should take into account the inherent plausibility and internal and external consistency of the evidence and any inaccuracies or falsehoods in the evidence.

If evidence in the record leads the officer to reasonably believe that undocumented assertions of the extreme hardship claim are true, the officer may accept the assertion as sufficient to support the extreme hardship claim. The preponderance of the evidence standard does not require any specific form of evidence; it requires the applicant to demonstrate only that it is more likely than not that the refusal of admission will result in extreme hardship to the qualifying relative(s). Any evidence that satisfies that test will suffice. ^[8] For more detailed guidance on how to interpret the requirement that the refusal of admission “would result in” extreme hardship to the qualifying relative, see Chapter 2, Extreme Hardship Policy, Section B, What is Extreme Hardship [9 USCIS-PM B.2(B)].

If the officer finds that the applicant has met the above burden of showing extreme hardship to one or more qualifying relatives, the officer should proceed to the discretionary determination. ^[9] See Chapter 7, Discretion [9 USCIS-PM B.7]. If the officer ultimately finds that the applicant has not met the above burden, the waiver application must be denied.

A finding of extreme hardship permits but never compels a favorable exercise of discretion. If the officer finds the requisite extreme hardship, the officer must then determine whether USCIS should grant the waiver as a matter of discretion based on an assessment of the positive and negative factors relevant to the exercise of discretion. The family relationships to U.S. citizens or lawful permanent residents and a finding of extreme hardship to one or more of those family members are significant positive factors to consider. ^[1] See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).

For purposes of exercising discretion, a finding of extreme hardship that is sufficient to warrant a favorable exercise of discretion to grant a waiver of the unlawful presence grounds of inadmissibility may not be sufficient to warrant a favorable exercise of discretion with respect to crime- or fraud-related grounds of inadmissibility. The conduct that triggered the applicant’s inadmissibility, such as a criminal conviction ^[2] In cases where applicants who have been convicted of violent or dangerous crimes apply for waivers under INA 212(h)(1)(B) [formerly INA 212(h)(2)], discretion generally will not be favorably exercised unless either there are “extraordinary circumstances” (for example those relating to national security or foreign policy) or the applicant demonstrates “exceptional and extremely unusual hardship.” Depending on the gravity of the offense, even a showing of extraordinary circumstances does not guarantee a favorable exercise of discretion. See 8 CFR 212.7(d). or underlying fraud, ^[3] See INS v. Yueh-Shaio Yang, 519 U.S. 26, 30-32 (1996). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 568-69 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). is an important negative factor to consider. The officer should weigh all positive factors against all negative factors. Ultimately, if the positive factors outweigh the negative factors, the officer should approve the waiver; otherwise, the waiver should be denied.

A. Purpose

USCIS balances public health interests against family unity and the needs of the applicant in adjudicating waivers of medical inadmissibility. For this reason, one of the terms and conditions imposed on all applicants with the grant of a waiver is to receive treatment so that the medical condition no longer poses a public health risk.

B. Background

A medical examination is generally required for all immigrant visa and some nonimmigrant visa applicants, as well as for refugees, and adjustment of status applicants. The purpose of the medical examination is to determine if an applicant has a medical condition(s) that renders him or her inadmissible to the United States.

Generally, applicants establish their admissibility on medical grounds by submitting a Report of Medical Examination and Vaccination Record (Form I-693), or Medical Examination for Immigrant or Refugee Applicant (1991 TB Technical Instructions) (Form DS-2053) or Medical Examination for Immigrant or Refugee Applicant (2007 TB Technical Instructions) (Form DS-2054), and related worksheets. ^[1] As of October 1, 2013, panel physicians only use DS-2054.

Civil surgeons or panel physicians complete these documents after the medical examination of the applicant, ^[2] See INA 212 and INA 232. certifying the presence or absence of physical or mental conditions that may render the applicant inadmissible. Two types of certifications may indicate to USCIS that the applicant may be inadmissible: a “Class A” and a “Class B” condition.

A Class A condition is conclusive evidence that an applicant is inadmissible on health-related grounds. A Class B condition, unlike a Class A condition, does not make an applicant inadmissible on health-related grounds but may lead the officer to conclude that the applicant is inadmissible on other grounds (such as public charge). ^[3] See Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B] for more information on Class A and B conditions.

Before 1957, no waiver was available to applicants inadmissible on health-related grounds. The Immigration Act of 1957 created the first waiver provision for those afflicted with tuberculosis who had close relatives in the United States. ^[4] See Pub. L. 85-316 (September 11, 1957). In addition, the 1965 amendments to the INA authorized the waiver of inadmissibility and admission of certain applicants in this category who had close relatives in the United States. ^[5] See Pub. L. 89-236 (October 3, 1965).

The Immigration Act of 1990 ^[6] See Pub. L. 101-649 (November 29, 1990). relaxed the requirements for a familial relationship before a medical waiver could be granted. In addition, over time, other provisions were added to the 1952 Immigration Act that allowed for other waivers of medical grounds depending on the immigration benefit sought.

C. Scope

If an applicant is inadmissible because of a medical condition, ^[7] Under INA 212(a)(1)(A), four categories of medical conditions may render an applicant inadmissible: (1) Communicable disease of public health significance (2) For immigrants, failure to show proof of required vaccinations(3) Physical or mental disorder with associated harmful behavior(4) Drug abuse or addictionSee Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B] for more information. he or she may have a waiver available. The availability of a waiver depends on the legal provisions governing the immigration benefit the applicant seeks.

This Part C only addresses the processes used for the medical waiver available to persons seeking an immigrant visa or adjustment of status based on a family- or employment-based petition. ^[8] Under INA 212(g). All medical grounds of inadmissibility have a corresponding waiver under this section except for inadmissibility based on drug abuse or addiction. ^[9] See INA 212(g), which specifically waives INA 212(a)(1)(A)(i)-INA 212(a)(1)(A)(iii) but omits reference to INA 212(a)(1)(A)(iv).

Applicants for other immigration benefits categories, such as refugees and asylees seeking adjustment, ^[10] Under INA 209. Legalization or SAW applicants, ^[11] Under INA 245A and INA 210. or applicants under other special programs, may have additional or other means to waive grounds of medical inadmissibility, including inadmissibility for drug abuse or addiction. ^[12] For example, an asylee or a refugee seeking adjustment of status who is found to be a drug abuser or addict may apply for a waiver of inadmissibility under INA 209(c). INA 209(c) waivers are not addressed in this Part., ^[13] While these other waivers may be briefly discussed in this chapter, more detailed discussion can be found in the program-specific waiver chapters in this volume.

Many of the processes mentioned in this Part C are also applicable to other medical waivers, such as those obtained by asylees or refugees seeking adjustment of status.

D. Legal Authorities

•INA 212(a)(1) – Health-Related Grounds

•INA 212(g) – Bond and Conditions for Admission of Alien Excludable on Health-Related Grounds

•8 CFR 212.7 – Waiver of Certain Grounds of Inadmissibility

E. Forms Used When Applying For a Medical Waiver

Applicants for the immigration benefits listed below may apply for a medical waiver by using the following USCIS forms: ^[14] For further information on waivers other than the medical waiver described in this Part, please see the program-specific waiver chapters in this volume.

F. Role of Centers for Disease Control and Prevention (CDC)

Any waiver application to overcome a medical ground of inadmissibility (other than lack of a required vaccination) must be sent to the U.S. Department of Health and Human Services (HHS), Centers for Disease Control and Prevention (CDC) for review before USCIS can determine whether to grant or deny the waiver.

CDC’s favorable response does not constitute a waiver approval. The purpose of CDC’s review is to ensure that

•The civil surgeon or panel physician examined, diagnosed, and classified the applicant according to the Technical Instructions; and

•The applicant (or person assuming the responsibility on behalf of the applicant) has identified a suitable health care provider in the United States who will provide medical care and treatment for the medical condition if a waiver is granted.

CDC’s response, however, carries significant weight in determining what terms, conditions, or controls should be placed on the waiver, and whether USCIS should approve the waiver.

A. General

The INA authorizes USCIS to exercise discretion in deciding whether to waive inadmissibility based on a communicable disease of public health significance. ^[1] See INA 212(g)(1) and INA 212(a)(1)(A)(i). INA 212(g)(1) was also amended to include a specific provision for battered immigrants. See Section 1505(d) of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386, 114 Stat. 1464, 1526 (October 28, 2000). For more information on the inadmissibility determination based on communicable disease of public health significance, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 6, Communicable Diseases of Public Health Significance [8 USCIS-PM B.6]. USCIS may grant this waiver in accordance with such terms, conditions, ^[2] A condition of granting a waiver for an applicant with a communicable disease of public health significance, such as tuberculosis, is that the applicant must agree to see a doctor immediately upon admission and make arrangements to receive private or public medical care for that disease. This requirement is reflected, for example, in the Application for Waiver of Grounds of Inadmissibility (Form I-601), TB Supplement. and controls, if any, that USCIS considers appropriate after consultation with the Secretary of HHS. ^[3] See INA 212(g)(1)(B). This includes the grant of a waiver based on requiring payment of a bond.

Once the officer has verified that the applicant is inadmissible because of a communicable disease of public health significance and requires a waiver, ^[4] Note that an applicant who has been determined to have a Class A condition involving a communicable disease of public health significance may successfully complete treatment. If, after treatment, the civil surgeon or panel physician certifies that the applicant now has a Class B condition, the applicant is no longer inadmissible and does not need a waiver. the officer must go through the following steps to adjudicate the waiver application:

•Determine whether the applicant meets the eligibility requirements of the waiver;

•Consult with CDC; and

•Determine whether the waiver is warranted as a matter of discretion.

B. Special Note on HIV

As of January 4, 2010, HIV infection is no longer defined as a communicable disease of public health significance according to HHS regulations. ^[5] See 42 CFR 34.2(b) as amended by 74 FR 56547 (November 2, 2009). Therefore, HIV infection does not make an applicant inadmissible if the immigration benefit is adjudicated on or after January 4, 2010, even if the applicant filed the immigration benefit application before January 4, 2010. Officers should administratively close any HIV waiver application that is filed before January 4, 2010 but adjudicated on or after January 4, 2010.

C. Waiver Eligibility and Adjudication

D. Step-by-Step Checklist

A. General

An applicant seeking an immigrant visa at a U.S. consulate or an applicant seeking adjustment of status in the United States who is found inadmissible for not being vaccinated ^[1] See INA 212(a)(1)(A)(ii). may be eligible for the following waivers:

•The applicant has, by the date of the decision on the visa or adjustment application, received vaccination against the vaccine-preventable disease(s) for which he or she had previously failed to present documentation; ^[2] See INA 212(g)(2)(A).

•The civil surgeon or panel physician certifies that such vaccination would not be medically appropriate; ^[3] See INA 212(g)(2)(B). or

•The requirement of such a vaccination would be contrary to the applicant’s religious beliefs or moral convictions. ^[4] See INA 212(g)(2)(C).

Each of these waivers has its own requirements. ^[5] These waivers are described in more detail in Section C, Blanket Waiver for Missing Vaccination Documentation [9 USCIS-PM C.3(C)]; Section D, Blanket Waiver if Vaccine is Not Medically Appropriate [9 USCIS-PM C.3(D)]; and Section E, Waiver due to Religious Belief or Moral Conviction [9 USCIS-PM C.3(E)]. Unlike some other waivers, no qualifying relative is required for the applicant to be eligible for a waiver of the immigrant vaccination requirement.

The first two waivers are often referred to as “blanket waivers.” USCIS grants blanket waivers if a health professional indicates that an applicant has received the required vaccinations or is unable to receive them for medical reasons. If USCIS grants blanket waivers, the applicant does not have to file a form or pay a fee.

The waiver on account of religious or moral objection must be filed on the appropriate form and accompanied by the correct fee.

B. Use of Panel Physician’s or Civil Surgeon’s Report

The determination whether an applicant is inadmissible for lack of having complied with the vaccination requirement is made by reviewing the panel physician’s or civil surgeon’s vaccination assessment in the medical examination report. ^[6] See Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B] for more information on the admissibility determination.

C. Blanket Waiver for Missing Vaccination Documentation ^[7] See INA 212(g)(2)(A).

Applicants who received the vaccinations for which documents were missing when they initially applied for adjustment of status or for an immigrant visa may be given a blanket waiver.

A streamlined procedure applies for this waiver; no form is needed. If a required vaccine is lacking, the officer should issue a Request for Evidence (RFE). The RFE should instruct the applicant to return to the civil surgeon for corrective action that demonstrates the applicant has received the required vaccine(s).

If the RFE response demonstrates that the missing vaccine(s) was received, the officer will deem the waiver granted. No annotation is needed on either the medical exam form, or any related form or worksheet.

D. Blanket Waiver if Vaccine is Not Medically Appropriate ^[8] See INA 212(g)(2)(B).

E. Waiver due to Religious Belief or Moral Conviction ^[11] See INA 212(g)(2)(C).

F. Step-by-Step Checklist

A blanket waiver may be available to the applicant. The officer should check whether the applicant is eligible for a blanket waiver before proceeding to this checklist.

A. General

If the applicant has a physical or mental disorder and behavior associated with the disorder that poses, may pose, or has posed a threat to the property, safety, or welfare of the applicant or others, the applicant must file a waiver to overcome this ground of inadmissibility. ^[1] See INA 212(a)(1)(A)(iii). See Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B] for more information on the inadmissibility determination based on physical or mental disorders with associated harmful behavior.

The officer should remember that the physical or mental disorder alone (that is, without associated harmful behavior) or harmful behavior alone (without it being associated with a mental or physical disorder) is not sufficient to find the applicant inadmissible on health-related grounds.

USCIS may grant this discretionary waiver in accordance with such terms, conditions, and controls (if any) that USCIS imposes after consulting with the Secretary of Health and Human Services (HHS). ^[2] See INA 212(g)(3). A condition could include the payment of a bond.

A common condition of granting a waiver for an applicant with a physical or mental disorder with associated harmful behavior is that the applicant must agree to see a U.S. health care provider immediately upon admission and make arrangements to receive care and treatment.

The officer must determine whether the applicant is eligible for the waiver, consult with CDC, and determine whether the waiver is warranted as a matter of discretion.

B. Waiver Eligibility and Adjudication

C. Step-by-Step Checklist

A. Adjustment of Status and Immigrant Visa Applicants

In general, no waiver is available for adjustment of status and immigrant visa applicants who are found inadmissible because of drug abuse or drug addiction. ^[1] There are specific statutory provisions that permit USCIS to waive this ground, such as those applying to asylees and refugees seeking adjustment, and Legalization and SAW applicants. These waivers are specific to those classes of immigrants and are outside the scope of this chapter, which focuses only on waivers available under INA 212(g). See Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B] for more information on inadmissibility on account of drug abuse or drug addiction.

B. Remission

Although a waiver is unavailable for medical inadmissibility due to drug abuse or addiction, an applicant may still overcome this inadmissibility if his or her drug abuse or addiction is found to be in remission. After being found inadmissible due to drug abuse or drug addiction, an applicant may undergo a re-examination at a later date at his or her own cost. If, upon re-examination, the civil surgeon or panel physician certifies, per the applicable HHS regulations and CDC’s Technical Instructions, that the applicant is in remission, the applicant is no longer inadmissible as a drug abuser or addict.

A. Purpose

An applicant who is inadmissible for fraud or willful misrepresentation may be eligible for a waiver. ^[1] See INA 212(a)(6)(C)(i). A waiver of inadmissibility allows an applicant to enter the United States or obtain an immigration benefit despite having been found inadmissible.

The purpose of a waiver for inadmissibility due to fraud or willful misrepresentation ^[2] See INA 212(a)(6)(C)(i). is to:

•Provide humanitarian relief and promote family unity;

•Ensure the applicant merits favorable discretion based on positive factors outweighing the applicant’s fraud or willful misrepresentation and any other negative factors; and

•Allow the applicant to overcome the inadmissibility or removability ground.

B. Background

Prior to September 30, 1996, a waiver was available to applicants who could show either:

•More than 10 years had passed since the date of the fraud or willful misrepresentation; or

•The applicant’s U.S. citizen or lawful permanent resident (LPR) parents, spouse, or children would suffer extreme hardship if the applicant was refused admission to the United States.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) ^[3] See Section 349 of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-639 (September 30, 1996). limited the availability of the waiver and eliminated the possibility of applying for a waiver if more than 10 years have passed. ^[4] Under INA 212(i). The applicable law for the adjudication of an INA 212(i) waiver is the law in effect on the date of the decision on the waiver application. See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 563 (BIA 1999). A waiver is now available only to applicants who can demonstrate extreme hardship to:

•A U.S. citizen parent or spouse;

•An LPR parent or spouse;

•A U.S. citizen fiancé(e); ^[5] A fiancé(e) is not yet the spouse of a U.S. citizen. However, K inadmissibility issues are generally addressed as if the fiancé(e) were seeking admission as an immigrant. See 22 CFR 41.81(d). See Matter of Sesay, 25 I&N Dec. 431 (BIA 2011). As discussed below, the grant of an INA 212(i) waiver to a K nonimmigrant fiancé(e) or fiancé(e) child is conditioned on the fiancé(e)’s actually marrying the citizen petitioner. See 8 CFR 212.7(a)(4)(iii). or

•In the case of a Violence Against Women Act (VAWA) self-petitioner: the VAWA self-petitioner, or his or her U.S. citizen, LPR, or qualified alien parent or child.

IIRIRA made other changes that play a role in the waiver adjudication. IIRIRA modified the inadmissibility provision ^[6] See INA 212(a)(6)(C). by creating two inadmissibility grounds within the same provision:

•Inadmissibility for fraud or willful misrepresentation; ^[7] See INA 212(a)(6)(C)(i). and

•Inadmissibility for falsely claiming U.S. citizenship on or after September 30, 1996. ^[8] See INA 212(a)(6)(C)(ii), as implemented by Section 344(a) of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-637 (September 30, 1996).

The waiver ^[9] Under INA 212(i). discussed in this Part G only applies to applicants who are inadmissible for fraud or willful misrepresentation. ^[10] See INA 212(a)(6)(C)(i).

Inadmissibility based on a false claim to U.S. citizenship made on or after September 30, 1996 ^[11] IIRIRA made September 30, 1996 the effective date of the new INA 212(a)(6)(C)(ii). See Section 344(c) of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-637 (September 30, 1996). cannot be waived through a waiver for fraud or willful misrepresentation. ^[12] See INA 212(i). Some separate adjustment mechanisms, such as INA 209 (for refugees and asylees) may have more broadly available waivers that could apply to an applicant who is inadmissible under INA 212(a)(6)(C)(ii). For example, INA 209(c) allows the waiver of many grounds of inadmissibility, and does not list INA 212(a)(6)(C)(ii) as a ground that cannot be waived. However, because IIRIRA’s changes were not retroactive, applicants who falsely claimed U.S. citizenship before September 30, 1996, are considered inadmissible for fraud or willful misrepresentation and may still seek the fraud or willful misrepresentation waiver.

C. Scope

The availability of a waiver of inadmissibility based on fraud or willful misrepresentation depends on the immigration benefit the applicant is seeking. The guidance in this Policy Manual part only addresses the processes used for the fraud or willful misrepresentation waiver ^[13] This guidance only addresses the waiver under INA 212(i). The fraud or willful misrepresentation waiver discussed in this guidance is also available to applicants who obtained, or attempted to obtain, a benefit based on falsely claiming U.S. citizenship before September 30, 1996. available to applicants listed in the table below.

Applicants seeking other immigration benefits may have different means to waive inadmissibility for fraud or willful misrepresentation.

D. Legal Authorities

•INA 212(a)(6)(C)(i) – Illegal Entrants and Immigration Violators – Misrepresentation ^[14] This includes false claims to U.S. citizenship made before September 30, 1996.

•INA 212(i) – Admission of Immigrant Excludable for Fraud or Willful Misrepresentation of Material Fact

E. Applicants Who May Have a Waiver Available

The chart below details who may apply for a waiver of inadmissibility based on fraud or willful misrepresentation and the relevant form. This chart includes waivers under INA 212(i) as well as waivers of inadmissibility for fraud or willful misrepresentation under other provisions of the INA.

A. Eligibility

An applicant inadmissible for fraud or willful misrepresentation may be eligible for a waiver. Before adjudicating the waiver, the officer should determine if the applicant is inadmissible for fraud or willful misrepresentation. ^[1] For more on inadmissibility for fraud and willful misrepresentation, see Volume 8, Admissibility, Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].

If inadmissible, the applicant must meet the following requirements before a waiver can be granted:

•The applicant must show that denial of admission to or removal from the United States would result in extreme hardship to his or her qualifying relative (or if the applicant is a VAWA self-petitioner, to himself or herself); and

•The applicant must show that a favorable exercise of discretion is warranted. ^[2] Once found inadmissible, the underlying fraud or willful misrepresentation is not considered again until the officer determines whether the waiver is warranted as a matter of discretion. For more information, see Chapter 3, Effect of Granting a Waiver [9 USCIS-PM G.3].

B. Waiver Adjudication

A. Validity of an Approved Waiver

If the waiver ^[1] See INA 212(i). is granted, then, except for K-1 and K-2 nonimmigrants and conditional permanent residents, ^[2] For K-1 and K-2 nonimmigrants granted a waiver, see Section B, Conditional Grant of a Waiver to K-1 or K-2 Nonimmigrant Visa Applicants [9 USCIS-PM G.3(B)]. the grant permanently waives fraud or willful misrepresentation included in the application for purposes of any future immigration benefits application, whether immigrant or nonimmigrant. The waiver remains valid even if the person later abandons or otherwise loses lawful permanent resident (LPR) status. ^[3] See 8 CFR 212.7(a)(4)(ii).

For conditional permanent residents, ^[4] Foreign nationals lawfully admitted for permanent residence on a conditional basis. See INA 216. the waiver only becomes valid indefinitely if and when the conditions are removed from his or her permanent resident status. Conversely, termination of the conditional permanent resident status also terminates the validity of the waiver. ^[5] See 8 CFR 212.7(a)(4)(iv).

A waiver applies only to the specific grounds of inadmissibility and related crimes, events or incidents specified in the waiver application. ^[6] See 8 CFR 212.7(a)(4)(i). If, in the future, the applicant is found inadmissible for a separate incident of fraud or willful misrepresentation not already included in an approved waiver application, he or she will be required to file another waiver application. USCIS may reconsider an approval of a waiver at any time if it is determined that the decision has been made in error. ^[7] See 8 CFR 212.7(a)(4)(v).

B. Conditional Grant of a Waiver to K-1 or K-2 Nonimmigrant Visa Applicants

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. ^[8] See 8 CFR 212.7(a)(4)(iii). The waiver becomes permanent once the K-1 marries the petitioner, as discussed in the section on validity of an approved waiver. ^[9] See Section A, Validity of an Approved Waiver [9 USCIS-PM G.3(A)].

If the K-1 nonimmigrant does not marry the petitioner, the K-1 and K-2 (if applicable) will remain inadmissible for purposes of any application for a benefit on any basis other than the proposed marriage between the K-1 and the K nonimmigrant visa petitioner. ^[10] See 8 CFR 212.7(a)(4)(iii).

C. Inadmissibility Based on Documentary Requirements ^[11] See INA 212(a)(7).

If an applicant procured an immigration benefit by fraud or willful misrepresentation, the applicant may also be inadmissible for lack of documentary requirements at the time of entry. When an applicant is granted a waiver for fraud or willful misrepresentation, inadmissibility based on lack of documentary requirements at the time of entry is also implicitly waived.

Example

An applicant misrepresents a material fact during the overseas nonimmigrant visa application process. The Department of State, however, grants the applicant a visa. Later, the applicant applies for adjustment of status. During the adjustment interview, an officer discovers the misrepresentation and finds applicant inadmissible for both willful misrepresentation ^[12] See INA 212(a)(6)(C)(i). and failure to comply with documentary requirements. ^[13] See INA 212(a)(7)(B)(i) (for example, for not possessing a valid nonimmigrant visa). The applicant then applies for a waiver of inadmissibility for willful misrepresentation. ^[14] See INA 212(i). Approval of the waiver has the effect of waiving inadmissibility for willful misrepresentation and for the lack of a valid visa at the time of entry.