Chapter 5 - Waivers for T Nonimmigrants Applying for Adjustment of Status
A. General
To be eligible to adjust status to lawful permanent residence, all T nonimmigrants must establish that they are admissible to the United States at the time of adjudication of the Application to Register Permanent Residence or Adjust Status (Form I-485) or be granted a waiver of inadmissibility for any grounds not already waived in connection with the underlying Application for T Nonimmigrant Status (Form I-914) or Application for Derivative T Nonimmigrant Status (Form I-914, Supplement A).[1]
If a ground of admissibility applies but was waived in connection with the underlying T nonimmigrant status application, officers do not re-adjudicate the waiver decision and consider the inadmissibility waived for purposes of the adjustment application.
B. Grounds of Inadmissibility Not Previously Waived
If there are inadmissibility grounds that existed before approval of the underlying T nonimmigrant status that were not disclosed or addressed at the time of adjudication, the officer should consider whether revocation of the approval of T nonimmigrant status is appropriate. As part of that process, USCIS examines whether the inadmissibility can be waived based on the record or, if there is insufficient evidence in the record to waive the inadmissibility, the officer issues a Notice of Intent to Revoke.
Principal and derivative T nonimmigrant applicants for adjustment of status who are inadmissible based on a pre-existing ground not previously waived in connection with the application for T nonimmigrant status must file an Application for Waiver of Grounds of Inadmissibility (Form I-601).[2] The applicant should submit any additional evidence that is relevant to the exercise of discretion.[3]
C. Waivers for Grounds of Inadmissibility
USCIS has the authority under INA 245(l)(2) to waive any ground of inadmissibility for T nonimmigrant applicants for adjustment of status, with the exception of the following:
- Security and related grounds - INA 212(a)(3);
- International child abduction - INA 212(a)(10)(C); and
- Renunciation of U.S. citizenship to avoid taxation - INA 212(a)(10)(E).[4]
T nonimmigrant applicants for adjustment of status may apply for any other waivers of inadmissibility for which they may be eligible, in addition to INA 245(l)(2).
1. Health-Related Inadmissibility Grounds
The standard for waiving health-related[5] inadmissibility grounds is whether a waiver is in the national interest as a matter of discretion.[6]
2. Other Inadmissibility Grounds
For other grounds of inadmissibility, the standard is whether:
- It is in the national interest to waive the inadmissibility ground; and
- The activities rendering the applicant inadmissible were caused by, or were incident to, the T-1 principal applicant’s trafficking victimization.[7]
3. Unlawful Presence Inadmissibility Grounds
If an applicant is inadmissible only for their unlawful presence[8] in the United States and the trafficking was at least one central reason for their unlawful presence,[9] and they are not inadmissible on any other grounds, it is not necessary to file Form I-601.[10] However, the applicant must submit evidence sufficient to demonstrate that the victimization suffered was at least one central reason for the unlawful presence in the United States. Such evidence may include:
- Personal statement;
- Psychologist report;
- Medical records; or
- Affidavits from relevant third parties.
The victimization does not need be the sole reason for the unlawful presence, but the nexus between the victimization and the unlawful presence must be more than tangential, incidental, or superficial.[11]
4. Exemption from Public Charge Ground of Inadmissibility
There is a statutory exemption from the public charge ground of inadmissibility[12] for victims who apply for T nonimmigrant status.[13] This exemption also applies to T nonimmigrant adjustment of status applicants.[14] If, however, a T nonimmigrant is applying for adjustment of status based on an employment-based petition that requires an Affidavit of Support Under Section 213A of the INA (Form I-864), the applicant must submit an affidavit of support as described in INA 212(a)(4)(D).[15]
5. Summary of Waivers Available to T Nonimmigrant Adjustment Applicants
| Legal Authority | Waiver Available for | Standard |
|---|---|---|
| INA 245(l)(2)(A) | INA 212(a)(1) (health related) | In the national or public interest |
| INA 245(l)(2)(B) | All other grounds of inadmissibility except:
| In the national or public interest and caused by or incident to victimization |
D. Waiver Analysis for Non-Health Related Grounds of Inadmissibility
Step One: Caused by or Incident to Victimization
The first step in determining whether a waiver is warranted is to determine whether the applicant has established that the activities rendering them inadmissible were caused by, or were incident to, the T-1 principal applicant’s victimization as a result of being trafficked.[16] Derivative family members applying for adjustment of status may be ineligible for a waiver under INA 245(l)(2)(B) if they are unable to establish a nexus to the principal’s victimization.
If an officer determines that the applicant has not established the connection between the activities and the victimization, the officer does not proceed to step two and denies the waiver application.
Step Two: National Interest Standard
The next step in determining whether a waiver is warranted is to determine whether it is in the national interest to grant the waiver.
“National interest” is not defined in the law or regulation but is interpreted broadly based on the purpose of the program, as established by Congress. Congress created T nonimmigrant status to provide immigration protection to alien victims of trafficking and to provide a tool for law enforcement to investigate and prosecute trafficking and other crimes by providing legal status for victims who cooperate.[17]
Factors USCIS considers in determining whether a waiver is in the public or national interest include, but are not limited to:
- Nature of the applicant’s victimization;
- Level of victim’s cooperation with law enforcement;
- Contributions to public safety by strengthening the ability of law enforcement to investigate and prosecute criminal activity;
- Contributions to the community;
- Family unity; and
- Risk of harm if the applicant is returned to their home country.
If an officer determines that the applicant has not established that it is in the national interest for USCIS to grant a waiver, the officer denies the waiver application.
Step Three: Discretionary Analysis
If the officer determines that the applicant has established that it is in the national interest for USCIS to grant a waiver, the officer must still determine whether the waiver should be granted as a matter of discretion.[18] The discretionary determination is the final step in the adjudication of a waiver application. The applicant bears the burden of establishing that they merit a favorable exercise of discretion.[19]
The officer must weigh the social and humanitarian considerations against the adverse factors present in the applicant’s case.[20] 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.[21]
Footnotes
[^ 1] See INA 245(l)(2). See 8 CFR 245.23(a)(4) and 8 CFR 245.23(b)(4).
[^ 2] If there is a T derivative adjustment applicant with a non-health-related inadmissibility ground that was not waived at the time of the derivative T nonimmigrant grant, and the inadmissibility basis has no nexus to the T-1 principal’s victimization, then the T derivative applicant may be ineligible for a waiver under INA 245(l)(2).
[^ 3] See Part A, Waiver Policies and Procedures, Chapter 4, Waiver Eligibility and Evidence, Section C, Evidence [9 USCIS-PM A.4(C)], for a discussion of evidence that can be submitted.
[^ 4] See INA 245(l)(2). See 8 CFR 212.18(b).
[^ 5] See INA 212(a)(1).
[^ 6] See INA 245(l)(2)(A).
[^ 7] See INA 245(l)(2)(A). See 8 CFR 212.18(b).
[^ 8] See INA 212(a)(9)(B)(i).
[^ 9] See INA 212(a)(9)(B)(iii).
[^ 10] See 8 CFR 245.23(c)(4).
[^ 11] See 8 CFR 245.23(c)(4).
[^ 12] See INA 212(a)(4).
[^ 13] See 8 CFR 212.23(a)(17).
[^ 14] See 8 CFR 212.23(a)(18).
[^ 15] See 8 CFR 212.23(b).
[^ 16] See INA 245(l)(2)(A). The requirement to establish a connection to victimization is not required for waivers requested for health-related inadmissibility grounds. See 8 CFR 212.18(b).
[^ 17] See 22 U.S.C. 7101 (PDF).
[^ 18] See INA 245(l)(2) (indicating that waivers are granted as a matter of discretion).
[^ 19] See Matter of De Lucia (PDF), 11 I&N Dec. 565 (BIA 1966). See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957).
[^ 20] See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296 (BIA 1996).
[^ 21] See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296 (BIA 1996) (relating to a criminal waiver under INA 212(h)(1)(B)). See Matter of Marin (PDF), 16 I&N Dec. 581 (BIA 1978) (relating to an INA 212(c) waiver). See Matter of Tijam (PDF), 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) (redesignated as INA 237(a)(1)(H) by IIRIRA)). For a non-exhaustive list of relevant factors to consider in the discretionary analysis, see Part A, Waiver Policies and Procedures, Chapter 5, Discretion, Section A, Discretionary Factors [9 USCIS-PM A.5(A)].