Chapter 3 - Admissibility and Waiver Requirements (2024)

Refugees must be admissible to theUnited Statesas an immigrant at the time adjustment of status is granted. However,an officer must rememberthat applicants who were admitted to the UnitedStatesas refugees were subject to grounds of inadmissibility at the time of admission.

Therefore, any information contained in the A-file known to the refugee officer, consular officer, or inspections officer at the time of admission is generallynotused to find therefugeeinadmissible at the time of adjustment, unless the law or interpretation of the law has changed subsequent to admission,or a clear error was made by the original adjudicating officer.^[1]

An officer makes adeterminationregardingthe refugee’s admissibility at the time of admission andthe officer adjudicating the adjustment of status applicationshould give deference tothisprior determination.

A.Exemptions

The following grounds of inadmissibilitydo not applyto refugees adjusting status:

• Public Charge –INA 212(a)(4)

• Labor Certification and Qualifications for Certain Immigrants –INA 212(a)(5)

• Documentation Requirements for Immigrants –INA 212(a)(7)(A)

B.Applicable Inadmissibility Grounds

The following grounds of inadmissibilityapplyto refugees adjusting status:

• Health-Related –INA 212(a)(1)

• Crime-Related –INA 212(a)(2)

• Security-Related –INA 212(a)(3)

• Illegal Entrants and Immigration Violators –INA 212(a)(6)

• Ineligibility for Citizenship –INA 212(a)(8)

• Aliens Previously Removed –INA 212(a)(9)

  See Also

  FOIA Guide, 2004 Edition: Exemption 7(E)Immigration and Nationality Act | USCISSome nationalities escape Biden's sweeping asylum ban because deportation flights are scarce

• Practicing Polygamists, Guardians Required to Accompany Helpless Persons, International Child Abductors, Unlawful Voters, and Former Citizens who Renounced Citizenship to Avoid Taxation –INA 212(a)(10)

Health-Related Considerations

Generally, ifan officer waives thegrounds of inadmissibility at the time of the refugee admission, the waiver carries forwardto the adjustment application.A notable exception would be for waivers of medical inadmissibility for Class A medical conditions.In these instances, the waiver does not carry through to adjustment and theapplicantmust submit to a new medical exam to determine whether the Class A medical condition has been resolved.

C.Inadmissibility Grounds that May Not Be Waived

While waivers are generally available for most of the groundslisted inSection B, Applicable Inadmissibility Grounds,^[2] the following grounds of inadmissibilitycannotbe waived:

• ControlledSubstanceTraffickers–INA 212(a)(2)(C)

• Espionage; Sabotage; Illegal Export of Goods, Technology, or Sensitive Information; Unlawful Overthrow or Opposition to U.S. Government –INA 212(a)(3)(A)

• TerroristActivities–INA 212(a)(3)(B)

• Adverse ForeignPolicyImpact–INA 212(a)(3)(C)

• Participants in NaziPersecutions orGenocide–INA 212(a)(3)(E)

An officershould deny theadjustment application ifno waiver is available due to the type of inadmissibility found.

National Security Issues

In the event thatanadjudicating officer identifies at any stage one or more national security indicator(s) or concerns unknown at the time of the refugee grant,anofficer should refer to USCIS guidance on disposition of national security cases.An officer should also follow current USCIS instructions on cases that involveTerroristRelatedInadmissibility Ground(TRIG) issuesfor disposition of the case or see their supervisor for questions on material support to terrorism.

Unless sent specifically to a field office for resolution ofaTRIGissue,anofficershould return any refugee adjustment case with unresolved TRIG issues to theNebraskaServiceCenterfor resolution.

D.Waivers^[3]

All grounds of inadmissibility listed atSection B, Applicable Inadmissibility Grounds^[4] are subject to waiver, if the applicant can establish he or she qualifies for a waiver.An officer may have waived arefugee adjustment applicant’sground of inadmissibility for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.This is a more generous waiver provision thanwhat isused for general adjustments, which typically require an applicant to prove extreme hardship.

In adjudicating a discretionary waiver application for refugee adjustment,an officer must balancethe humanitarian, family unity, or public interest considerationswiththe seriousness of the offense that rendered the applicant inadmissible.In making this determination,an officershould recognize that the applicant hasalreadyestablished either past persecution or a well-founded fear of future persecution, which is an extremely strong positive discretionary factor.Therefore, unless there are even stronger negative factors that outweigh the positive ones, the waiver application should generally be approved.

Often, waiver applications for refugees are handled overseas before theapplicant is approved fortherefugee classification. However, if a ground of inadmissibility arose after theapplicant’sapproval fortherefugee classification, orif itwas not known to the officer who approved the refugee classification, theapplicant may seek awaiver. The officer shouldadjudicate the waiverasapart of the refugee adjustment process.Theapplicant generally seeks awaiver through the filing ofanApplication by Refugee for Waiver of Grounds of Excludability(Form I-602).

When an officer determines that an applicant is inadmissible and a waiver is available,anofficer may grant the waiver without requiring submission ofaForm I-602, if:

• The applicant is inadmissible under a ground of inadmissibility that may be waived(other than health related grounds);^[5]

• ​USCIS records and other information available toanofficer contain sufficient information to assess eligibility for a waiver;

• There is no evidence to suggest that negative factors would adversely impact the exercise of discretion; and

• It is appropriate to grant a waiver.

Ifanofficer determines thatthe applicant does not need to file aForm I-602, the officer should indicate that they have waived the inadmissibilityby annotating theadjustment application to reflect this action.An officer may use a written annotation, stamp, or pre-printed label to indicate the specific inadmissibility ground thatthey arewaiving.

The officer’s signature and approval stamp on the adjustment application also serves as the signature and approval of the waiver. Waivers granted because the vaccinations were not medically appropriate do not require a waiver annotation on the adjustment application or the medical record on Report of Immigration Medical Examination and Vaccination Record (Form I-693).^[6] Allothers do require an annotation.

In cases that require a Form I-602, there is no need for a separate waiver approval notice because the approval of the adjustment application indicates the approval of the waiver application.

If the applicant is statutorily ineligible for a waiver (that is, the applicant is inadmissible under a ground of inadmissibility that cannot be waived) or if there are sufficient negative factors to warrant a discretionary denial of the waiver application, the officer denies the waiver application and specifies the reason(s) for denying the waiver in the written denial notice of the adjustment application.

While there is no appeal from the denial of the Form I-602, the applicant is notified in the denial notice of the right to renew the adjustment application before an immigration judge during removal proceedings.^[7] The applicant has the opportunity to again seek a waiver of inadmissibility in conjunction with that application.

Footnotes

[^ 1]For example, a ground of inadmissibilitywas waivedfor which no waiver was available, or a national security issue was not properly addressed.

[^ 2]See Section B,Applicable Inadmissibility Grounds [7 USCIS-PML.3(B)].

[^ 3]For more information on waiver policies and procedures, see Volume 9, Waivers and Other Forms of Relief, Part A, Waiver Policies and Procedures [9 USCIS-PM A].

[^ 4]SeeSection B,Applicable Inadmissibility Grounds[7 USCIS-PML.3(B)].

[^ 5]See Health Related ConsiderationsinSection B, Applicable Inadmissibility Grounds[7 USCIS-PML.3(B)].

[^ 6]SeeINA 212(g)(2)(B).

[^ 7]See 8 CFR 209.1(e).