Friday, April 6, 2018

USCIS Policy Manual Current as of March 28, 2018 Volume 9 - Waivers Part A - Waiver Policies and Procedures

USCIS Policy Manual

Current as of March 28, 2018

Volume 9 - Waivers

Part A - Waiver Policies and Procedures

Chapter 1 - Purpose and Background

A. Purpose

Certain foreign nationals may not be allowed to enter or obtain status in the United States because they are inadmissible. These foreign nationals may overcome the inadmissibility if they are eligible to apply for and receive a waiver.
USCIS, in its administration of waiver laws and policies, seeks to:
Promote family unity and provide humanitarian results;
Provide relief to refugees, asylees, victims of human trafficking [1] and certain criminal acts, [2] 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] 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]
Congress later amended the INA in 1957, easing many stricter provisions of the earlier legislation. [5] 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]
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]
Congress tightened waiver requirements and availability once again with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). [8] For example, IIRIRA made waivers of criminal inadmissibility [9] 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 2078 CFR 207 - Annual admission of refugees and admission of emergency situation refugees
INA 2098 CFR 209 - Adjustment of status of refugees
INA 2108 CFR 210 - Special agricultural workers
INA 2118 CFR 211 - Admission of immigrants into the United States
INA 2128 CFR 212 - Excludable aliens
INA 2148 CFR 214 - Admission of nonimmigrants
INA 2448 CFR 244 - Temporary protected status
INA 2458 CFR 245 - Adjustment of status of nonimmigrant to that of person admitted for permanent residence
INA 245A8 CFR 245a - Adjustment of status of certain entrants before January 1, 1982, to that of person admitted for lawful residence

Footnotes

1.
 
2.
 
3.
See Pub. L. 82-414 (June 27, 1952).
 
4.
See INS v. Errico, 385 U.S. 214, 218 (1966), citing H.R. 1365, 82nd Cong. 128 (1952).
 
5.
See Act of September 11, 1957, Pub. L. 85-316 (September 11, 1957).
 
6.
The INA gives the Attorney General and the Secretary of Homeland Security statutory authority to grant waivers. Some sections of the INA, however, still refer exclusively to the “Attorney General.” Under the Homeland Security Act of 2002, Pub. L. 107–296 (November 25, 2002), the authority to grant waivers was also given to the Secretary of Homeland Security.
 
7.
See INS v. Errico, 385 U.S. 214, 219-20 (1966), citing H.R. 1199, 85th Cong. 7 (1957).
 
8.
See Pub. L. 104-208 (September 30, 1996).
 
9.
See INA 212(h).
 

Chapter 2 - Forms of Relief

A. Waivers

In general, applicants for immigration benefits must establish that they are admissible to the United States. If an applicant for an immigration benefit is inadmissible to the United States, USCIS may only grant the benefit if the applicant receives a waiver of inadmissibility or another form of relief provided in the Immigration and Nationality Act (INA). [1] 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] 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] 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]

Footnotes

1.
See Pub. L. 82-414 (June 27, 1952).
 
2.
Exception and exemption both mean that the specific inadmissibility ground does not apply if the applicant establishes that the terms of the exception or exemption apply.
 
3.
See Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212) (used to seek consent to reapply). See the form instructions for more information.
 

Chapter 3 - Review of Inadmissibility Grounds

A. Verification of Inadmissibility

Before adjudicating a waiver, the officer must verify that the applicant is inadmissible. [1] 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]
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]

B. Grounds Included in Waiver Application

The officer must review all inadmissibility grounds that the applicant lists in the waiver application. If the applicant states that he or she is inadmissible but there is no evidence of inadmissibility in the record, then the officer should issue a Request for Evidence (RFE). The officer should request that the applicant provide a written statement explaining why the applicant thinks he or she is inadmissible. The officer should proceed with the waiver adjudication if the officer determines that the applicant is inadmissible.
An applicant may file a waiver application after another government agency, such as the Department of State or CBP, has found the applicant inadmissible. In general, USCIS accepts another government agency’s finding of inadmissibility. The officer should only question another government agency’s inadmissibility determination if:
The government agency’s finding was clearly erroneous; or
The applicant has shown that he or she is clearly not inadmissible.
The officer should work with the other government agency to resolve the issue through appropriate procedures.

C. Grounds Not Included in Waiver Application

If the officer identifies additional inadmissibility grounds based on events that are not included in the waiver application, the officer should notify the applicant and the applicant’s representative, if applicable. The officer should follow current USCIS guidance on the issuance of RFEs, Notices of Intent to Deny (NOID), and Denials.

Footnotes

1.
For more on admissibility determinations, see Volume 8, Admissibility [8 USCIS-PM].
 
2.
When verifying the inadmissibility, the officer may determine that the applicant is admissible and does not require a waiver. For more on admissibility determinations, see Volume 8, Admissibility [8 USCIS-PM].
 
3.
For specific scenarios that the officer may encounter during the adjudication of a waiver, see Chapter 4, Waiver Eligibility and Evidence, Section C, Evidence [9 USCIS-PM A.4(C)].
 

Chapter 4 - Waiver Eligibility and Evidence

A. Eligibility Requirements

Waiver eligibility depends on whether:
A waiver is available for the inadmissibility ground;
The applicant meets all other statutory and regulatory provisions for the waiver; and
A favorable exercise of discretion is warranted. [1]
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] When the officer receives the application, the officer should ensure that it meets all of the applicable filing requirements. [3]

B. Waiver Availability

1. Waiver is Available
If an applicant is inadmissible, the officer must determine whether USCIS may waive the ground of inadmissibility and whether the applicant meets all eligibility requirements of the waiver. If the applicant is inadmissible on grounds that can be waived, the officer should determine whether the applicant meets the requirements for the waiver. [4]
2. Waiver and Consent to Reapply
An applicant who files a waiver application may also be inadmissible because of a prior removal or unlawful reentry after a previous immigration violation. [5] In these cases, the applicant is required to file an Application for Permission to Reapply for Admission into the United States after Deportation or Removal (Form I-212), which is also called consent to reapply.
If the officer determines that the waiver is approvable, the officer should give the applicant an opportunity to file a consent to reapply application, if required. The officer should consult the consent to reapply form instructions to determine when USCIS may accept the waiver application and consent to reapply application together.
If the waiver is not approvable and the applicant did not request consent to reapply (although required), the officer should deny the waiver and not request the application for consent to reapply. If an applicant files a consent to reapply application and the officer denies the waiver application, then the officer should deny the consent to reapply application as a matter of discretion. [6]
3. No Waiver is Available
An applicant may be inadmissible for both a ground that USCIS may waive and a ground for which no waiver or other form of relief is available. In this instance, the applicant is still inadmissible on grounds that cannot be waived and approving the waiver application serves no purpose. The officer, therefore, should deny the application as a matter of discretion because the applicant is inadmissible on grounds that cannot be waived. [7] The officer should provide the standard language regarding the availability of motions to reopen, motions to reconsider, and appeals (if applicable) in the denial notice.

C. Evidence

There is no specific type or amount of evidence necessary to establish eligibility for a waiver. Typically, the evidence should support all eligibility requirements, be specific, and come from a credible source. It should also substantiate the applicant’s claims. If evidence is unavailable, the applicant should provide a reasonable explanation for its absence. [8]
1. Medical and Other Issues Requiring Specialized Knowledge
Professionals should address issues that require specialized knowledge. Physicians and other medical professionals, for example, should provide medical statements.The professional’s attestation should explain how the condition or issue affects that applicant. An officer may still consider a nonprofessional’s statement, but the officer should give less weight to a nonprofessional’s opinion. An officer may consider medical evidence from the internet and published sources, but these sources generally cannot replace a physician's statement.
2. Family Relationships
Some waivers require that the applicant establish a qualifying familial relationship. Unless the adjudicating officer finds the underlying evidence unpersuasive, the evidence submitted as part of a previously approved petition or application based on that familial relationship is sufficient to establish the qualifying relationship for the waiver. If there is no evidence in the record establishing the qualifying relationship, then the officer must request evidence that establishes the qualifying relationship, such as marriage, birth, or adoption certificates, or other evidence as permitted by law.

Footnotes

1.
See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).
 
2.
See 8 CFR 103.2. See 8 CFR 103.7. General filing requirements include proper signature; proper fee or fee waiver; translation of any foreign language evidence; proper filing location; and the initial evidence specified in the relevant regulations and instructions with the application. Forms and form instructions are available on USCIS’ website at www.uscis.gov/forms.
 
3.
See 8 CFR 103.2. Typically, a waiver does not require the applicant to submit biometrics. USCIS usually collects this information as part of the underlying benefit application, such as an adjustment of status application. However, if the required biometrics are outdated, then the officer must update the biometrics prior to the adjudication of a waiver.
 
4.
See Chapter 4, Waiver Eligibility and Evidence [9 USCIS-PM A.4].
 
5.
Inadmissible under INA 212(a)(9)(A) or INA 212(a)(9)(C).
 
6.
See Matter of J-F-D-, 10 I&N Dec. 694 (Reg. Comm. 1963). See Matter of Martinez-Torres, 10 I&N Dec. 776 (Reg. Comm. 1964).
 
7.
See Matter of J-F-D-, 10 I&N Dec. 694 (Reg. Comm. 1963). See Matter of Martinez-Torres, 10 I&N Dec. 776 (Reg. Comm. 1964).
 
8.
 

Chapter 5 - Discretion

If the applicant meets all other statutory and regulatory requirements of the waiver, the officer must determine whether to approve the waiver as a matter of discretion.[1] Meeting the other statutory and regulatory requirements alone does not entitle the applicant to relief. [2]
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]

A. Discretionary Factors

The officer must weigh the social and humanitarian considerations against the adverse factors present in the applicant’s case. [4] 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]
The following table provides some of the factors relevant to the waiver adjudication.
Non-Exhaustive List of Factors that May Be
Relevant in the Discretionary Analysis
Category
Favorable Factors
Unfavorable Factors
Waiver Eligibility
Meeting certain other statutory requirements of the waiver, including a finding of extreme hardship to a qualifying family member, if applicable. [6] 
Eligibility for waiver of other inadmissibility grounds.
Not applicable – Not meeting the statutory requirements of the waiver results in a waiver denial. A discretionary analysis is not necessary.
Family and Community Ties
Family ties to the United States and the closeness of the underlying relationships.
Hardship to the applicant or to non-qualifying lawful permanent residents (LPRs) or U.S. citizen relatives or employers.
Length of lawful residence in the United States and status held during that residence, particularly where the applicant began residency at a young age.
Significant health concerns that affect the qualifying relative.
Difficulties the qualifying relative would be likely to face if the qualifying relative moves abroad with the applicant due to country conditions, inability to adapt, restrictions on residence, or other factors that may be claimed.
Honorable service in the U.S. armed forces or other evidence of value and service to the community.
Property or business ties in the United States.
Absence of community ties.

Criminal History, Moral Character
(or both)
Respect for law and order, and good moral character, which may be evidenced by affidavits from family, friends, and responsible community representatives.
Reformation of character and rehabilitation.
Community service beyond any imposed by the courts.
Considerable passage of time since deportation or removal.
Moral depravity or criminal tendencies reflected by an ongoing or continuing criminal record, particularly the nature, scope, seriousness, and recent occurrence of criminal activity.
Repeated or serious violations of immigration laws, which evidence a disregard for U.S. law.
Lack of reformation of character or rehabilitation.
Previous instances of fraud or false testimony in dealings with USCIS or any government agency.
Marriage to a U.S. citizen or LPR for the primary purpose of circumventing immigration laws.
Nature and underlying circumstances of the inadmissibility ground at issue, and the seriousness of the violation.
Public safety or national security concerns
Other
Absence of significant undesirable or negative factors.
Other indicators of an applicant's bad character and undesirability as a permanent resident of this country.

B. Discretionary Determination

When making a discretionary determination, the officer should review the entire record and give the appropriate weight to each adverse and favorable factor. Once the officer has weighed each factor, the officer should consider all of the factors cumulatively to determine whether the favorable factors outweigh the unfavorable ones. If the officer determines that the positive factors outweigh the negative factors, then the applicant merits a favorable exercise of discretion.
Example
A lengthy and stable marriage is generally a favorable factor in the discretionary analysis. On the other hand, the weight given to any possible hardship to the spouse that may occur upon separation may be diminished if the parties married after the commencement of removal proceedings with knowledge of an impending removal. [7]
Example
In general, when reviewing an applicant’s employment history, an officer may consider the type, length, and stability of the employment. [8]
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]
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]

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]
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]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]

Footnotes

1.
If the applicant does not meet another statutory requirement of the waiver, USCIS denies the waiver and a discretionary analysis is not necessary. However, an officer may still include a discretionary analysis if the applicant’s conduct is so egregious that a discretionary denial would be warranted even if the applicant had met the other statutory and regulatory requirements. Adding a discretionary analysis to a denial is also useful if an appellate body on review disagrees with the officer’s conclusion that the applicant failed to meet the statutory requisites for the waiver.
 
2.
See Reyes-Cornejo v. Holder, 734 F.3d 636 (7th Cir. 2013). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999). See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).
 
3.
See Matter of De Lucia, 11 I&N Dec. 565 (BIA 1966). See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957).
 
4.
See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).
 
5.
See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996) (relating to a criminal waiver under INA 212(h)(1)(B)). See Matter of Marin, 16 I&N Dec. 581 (BIA 1978) (relating to an INA 212(c) waiver). See Matter of Tijam, 22 I&N Dec. 408 (BIA 1998) (relating to a fraud or misrepresentation finding (INA 212(a)(6)(C)(i)) and the discretionary waiver under former INA 241(a)(1)(H) [renumbered as INA 237(a)(1)(H) by IIRIRA]).
 
6.
In particular, if a finding of extreme hardship is a statutory eligibility requirement, the finding of extreme hardship permits, but does not require, a favorable exercise of discretion. Once extreme hardship is found, extreme hardship becomes a factor that weighs in favor of granting relief as a matter of discretion.
 
7.
See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996). See Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992).
 
8.
See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).
 
9.
See Diaz-Resendez v. INS, 960 F.2d 493 (5th Cir. 1992).
 
10.
See Douglas v. INS, 28 F.3d 241 (2nd Cir. 1994).
 
11.
See INA 212(h). See 8 CFR 212.7(d). See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (relating to a waiver of inadmissibility granted in connection with INA 209(c), refugee or asylee adjustment of status).
 
12.
See Matter of Monreal, 23 I&N Dec. 56 (BIA 2001).
 
13.
 

Chapter 6 - Validity of an Approved Waiver

A. Extent of Waiver Validity

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

B. Length of Waiver Validity

A waiver’s validity depends on the underlying immigration benefit connected to the approved waiver.
1. Certain Nonimmigrants [1]
An inadmissible applicant seeking to enter the United States as a nonimmigrant generally needs to obtain advance permission to enter the United States as a nonimmigrant. [2] Advance permission to enter as a nonimmigrant [3] despite inadmissibility is referred to as a nonimmigrant waiver. Customs and Border Protection (CBP) generally adjudicates this waiver, which is temporary if approved. [4] This temporary permission does not ordinarily carry over to other benefit categories, such as other nonimmigrant categories, immigrant categories, visas, or adjustment of status.
2. Temporary Protected Status Holders [5]
An applicant seeking temporary protected status (TPS) status in the United States may be inadmissible. In most cases, a waiver is available to a TPS applicant in connection with his or her TPS application. If USCIS approves a TPS applicant’s waiver, the waiver is temporary and lasts for the duration of TPS only. [6]
3. Refugees
An inadmissible refugee must apply for a waiver before seeking admission to the United States. [7] A waiver granted to a refugee for admission to the United States is valid for purposes of seeking adjustment of status as a refugee. [8] In this case, the applicant does not have to file another waiver for the specific inadmissibility ground previously waived. [9]
There is an exception, however, for medical waivers. If USCIS grants the refugee a waiver for purposes of admission to the United States because of a Class A condition, then the refugee is required to submit to another medical examination. If the second examination reveals a Class A condition, the refugee must file another waiver when seeking adjustment of status. [10]
4. Lawful Permanent Residents
An inadmissible applicant seeking lawful permanent resident (LPR) status requires a waiver. As previously explained, the availability of a waiver depends on the specific category under which an applicant seeks LPR status.
A waiver granted in connection with any application for LPR status [11] permanently waives the ground of inadmissibility for purposes of any future immigration benefits application, including immigrant and nonimmigrant benefits. The waiver remains valid even if the LPR later abandons or otherwise loses LPR status. [12]
This rule, however, does not apply to conditional residents or conditional grants issued to K-1 and K-2 nonimmigrants. [13]
5. Conditional Permanent Residents [14]
For most conditional permanent residents, [15] the waiver becomes valid indefinitely when the conditions are removed from the permanent resident status. This is the case even if the LPR later abandons or otherwise loses LPR status.
For certain criminal waivers [16] and a waiver of fraud or willful misrepresentation, [17] the validity of a waiver automatically ends if USCIS terminates conditional residency. There is no need for a separate termination notice and the applicant cannot appeal this waiver termination. If the immigration judge determines during removal proceedings that USCIS incorrectly terminated the conditional residence, the waiver becomes effective again. [18]
6. K-1 and K-2 Nonimmigrants
If the applicant seeks a waiver to obtain a fiancé(e) visa (K-1 or K-2), the waiver’s approval is conditioned upon the K-1 nonimmigrant marrying the U.S. citizen who filed the fiancé(e) petition. [19] If the K-1 nonimmigrant marries the petitioner, the approved waiver becomes valid indefinitely for any future immigration benefits application, whether immigrant or nonimmigrant.
The waiver remains valid even if the K nonimmigrant does not ultimately adjust status to an LPR or if the K nonimmigrant later abandons or otherwise loses LPR status. [20]
If the K-1 nonimmigrant does not marry the petitioner, the K-1 and K-2 (if applicable) remain inadmissible for any application or any benefit other than the proposed marriage between the K-1 and the K nonimmigrant visa petitioner. [21]
7. Inter-country Convention Adoptees
An approved waiver in conjunction with the provisional approval of a Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800) is conditioned upon the issuance of an immigrant or nonimmigrant visa for the child's admission to the United States and final approval of that Form I-800. If Form I-800 or the immigrant or nonimmigrant visa application is ultimately denied, the waiver is void. [22]

Footnotes

1.
Except for K, T, U, and V nonimmigrants.
 
2.
The application is filed on Application for Advance Permission to Enter as Nonimmigrant (Form I-192).
 
3.
 
4.
For more information on when an applicant should file this waiver with CBP and when with USCIS, see Application for Advance Permission to Enter as a Nonimmigrant (Form I-192).
 
5.
See INA 244(c).
 
6.
See INA 244(a) and INA 244(c). See 8 CFR 244.3 and 8 CFR 244.13. See Instructions for Application for Waiver of Grounds of Inadmissibility (Form I-601). If the applicant obtains a waiver in connection with an Application for Temporary Protected Status (Form I-821), the waiver is only valid for the TPS application. If granted, the waiver applies to subsequent TPS re-registration applications, but not to any other immigration benefit requests.
 
7.
 
8.
See INA 209.
 
9.
If the refugee is seeking adjustment of status on a basis other than INA 209, the refugee must apply for a new waiver as required by that particular benefit.
 
10.
Refugees seek adjustment of status under INA 209. For more information on Class A conditions, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].
 
11.
This includes applications for an immigrant visa, fiancé(e) visa, legalization, and adjustment of status.
 
12.
 
13.
See 8 CFR 212.7(a)(4)(ii). For K-1 and K-2 nonimmigrants granted a waiver, see Subsection 6, K-1 and K-2 Nonimmigrants [ 9 USCIS-PM A.6( B)(6) ].
 
14.
 
15.
Foreign nationals lawfully admitted for permanent residence on a conditional basis. See INA 216.
 
16.
See INA 212(h).
 
17.
See INA 212(i).
 
18.
 
20.
 
22.
 

Chapter 7 - Denials, Appeals, and Motions

An officer must specify the reason(s) for denying any waiver in the denial notice. [1] 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] 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]

Footnotes

2.
 

Part B - Extreme Hardship

Chapter 1 - Purpose and Background

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] admissibility is generally a requirement for admission to the United States, adjustment of status, and other immigration benefits. [2] 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] 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]
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]
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] Qualifying relatives are limited to applicants’ U.S. citizen and LPR spouses and parents. [7]
INA 212(h)(1)(B) [8] – 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] 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]Qualifying relatives are limited to applicants’ U.S. citizen and LPR spouses, parents, sons, and daughters. [11]
INA 212(i)(1) – Provides for waiver of inadmissibility for certain types of immigration fraud or willful misrepresentations of material fact. [12] 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] 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] 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.

Footnotes

1.
See Immigration and Nationality Act, Pub. L. 82-414 , 66 Stat. 163 (June 27, 1952), as amended.
 
2.
See INA 212(a) and INA 245(a).
 
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).
 
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.
 
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).
 
6.
 
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).
 
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).
 
10.
 
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.
 
12.
 
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).
 
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.
 

Chapter 2 - Extreme Hardship Policy

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]

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]
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] Conversely, “[a] restrictive view of extreme hardship is not mandated either by the Supreme Court or by [the BIA] case law.” [4]
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] But extreme hardship need not be unique, [6]nor is the standard as demanding as the statutory “exceptional and extremely unusual hardship” standard that is generally applicable to non-lawful permanent residentcancellation of removal. [7]

Footnotes

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.”).
 
2.
See 450 U.S. 139, 144 (1981) (per curiam).
 
3.
See INS v. Jong Ha Wang, 450 U.S. 139, 145 (1981) (per curiam).
 
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).
 
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).
 
6.
See Matter of L-O-G-, 21 I&N Dec. 413, 418 (BIA 1996).
 
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).
 

Chapter 3 - Adjudicating Extreme Hardship Claims

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] 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]
The finding of extreme hardship permits, but does not require, a favorable exercise of discretion. [3] 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]

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]
Adjudication Steps for Waivers Requiring Extreme Hardship to a Qualifying Relative
Adjudication Step
For More Information
Step 1
Confirm that the waiver provision requires a showing of extreme hardship to a qualifying relative.
See Chapter 1, Purpose and Background [9 USCIS-PM B.1]
Step 2
Consistent with the applicable waiver authority, identify each person as to whom the applicant makes a claim of extreme hardship and confirm that the applicant has established the necessary family relationship for the person(s) to be qualifying relatives(s).
See Chapter 4, Qualifying Relative [9 USCIS-PM B.4]
Step 3
Evaluate the present and future hardships that each qualifying relative would experience to determine whether it is more likely than not that an applicant’s refusal of admission would result in extreme hardship to the qualifying relative.
This includes whether any of the particularly significant factors listed below are present. These particularly significant factors generally exceed the common consequences and often weigh heavily in support of a finding of extreme hardship.
See Chapter 5, Extreme Hardship Considerations and Factors [9 USCIS-PM B.5]
See Chapter 6, Extreme Hardship Determinations [9 USCIS-PM B.6]
Step 4
If no single hardship rises to the level of “extreme,” then determine whether it is more likely than not that the hardships to the qualifying relatives in the aggregate rise to the level of extreme hardship.
See Chapter 2, Extreme Hardship Policy [9 USCIS-PM B.2]
See Chapter 5, Extreme Hardship Considerations and Factors [9 USCIS-PM B.5]
See Chapter 6, Extreme Hardship Determinations [9 USCIS-PM B.6]
Step 5
If extreme hardship is not found, deny the application.
If extreme hardship is found, determine whether based on the totality of the circumstances of the individual case, the applicant merits a favorable exercise of discretion.
See Chapter 7, Discretion [9 USCIS-PM B.7]

Footnotes

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).
 
2.
See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).
 
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).
 
4.
See Chapter 7, Discretion [9 USCIS-PM B.7].
 
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.
 

Chapter 4 - Qualifying Relative

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]
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] 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] 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] 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] 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] 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]
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] 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] 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] 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] (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] 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]
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] including if the petition later reverts to a Form I-130 petition based on a subsequent remarriage. [15]

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

On its own, hardship to a non-qualifying relative [16] 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]
1. Hardship to the Applicant
Except for certain applicants who are Violence Against Women Act (VAWA) self-petitioners, applicants for the waivers enumerated in Chapter 1 may not meet the relevant extreme hardship requirements by establishing hardship to themselves. In cases in which applicants who are not VAWA self-petitioners submit evidence of hardship to themselves, officers should consider the alleged hardships only as they affect the applicants’ qualifying relatives.
For example, consider an applicant who indicates he suffers from a medical condition for which he would be unable to obtain necessary medical treatment in his home country. The applicant provides medical documentation about his condition and Department of State (DOS) information on country conditions that corroborate hisstatements. Because the applicant is not a qualifying relative, his claims alone cannot meet the extreme hardship requirement of the waiver.
However, the applicant’s condition and prospective situation may show that denial of his admission would have a significant emotional or financial impact on one or more qualifying relatives in the United States. The USCIS officer may consider such impacts when determining whether the qualifying relative(s) would experience extreme hardship upon the applicant’s denial of admission.
2. Hardship to Other Non-Qualifying Relatives
Similarly, if the applicant claims hardship to an individual who is not a qualifying relative for purposes of the relevant waiver, the officer should consider the alleged hardship only as it affects one or more qualifying relatives.
For example, consider an applicant who is married to a U.S. citizen with whom she has a 5-year-old child with a disability. Unless the relevant waiver allows for her child to serve as a qualifying relative, the USCIS officer may not consider the hardship to the child if the applicant is denied admission. The officer, however, may consider the child’s disability when assessing whether the denial of admission will cause hardship for the qualifying-relative spouse. For example, denial of admission may impact the qualifying parent’s financial and emotional ability to care for the disabled child. [18] Moreover, even if such derivative hardship does not rise to the level of extreme hardship by itself, it is a factor that should be considered when determining whether the qualifying relative’s hardship, considered in the aggregate, rises to the level of extreme.
E. Aggregating Hardships
To establish extreme hardship, it is not necessary to demonstrate that a single hardship, taken in isolation, rises to the level of “extreme.” Rather, any relevant hardship factors “must be considered in the aggregate, not in isolation.” [19] Therefore, even if no one factor individually rises to the level of extreme hardship, the USCIS officer“must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation” (or, in this case, the refusal of admission). [20] Moreover, even “those hardships ordinarily associated with deportation, . . . while not alone sufficient to constitute extreme hardship, are considered in the assessment of aggregate hardship.” [21]
The applicant needs to show extreme hardship to only one qualifying relative. [22] But an applicant may have more than one qualifying relative. In such cases, if there is no single qualifying relative whose hardship alone is severe enough to be found “extreme,” the extreme hardship standard would be met if the combination of hardships to 2 or more qualifying relatives in the aggregate rises to the level of extreme hardship. [23]
Therefore, if the applicant demonstrates that the combined hardships that two or more qualifying relatives would suffer rise to the level of extreme hardship, the applicant has met the extreme hardship standard. If the applicant presents evidence of hardship to multiple qualifying relatives that does not rise to the level of extreme hardship to any one qualifying relative, the USCIS officer should aggregate all of their hardships to decide whether these hardships combined rise to the level of extreme hardship. [24]

Footnotes

1.
An officer who has concerns about the qualifying relationship in the approved Form I-130 should consult with a supervisor.
 
2.
This includes marriages valid under the laws of the place of marriage.
 
3.
See 8 CFR 103.2(b)(2)(i).
 
4.
See Section D, Effect of Hardship Experienced by a Person who is not a Qualifying Relative [9 USCIS-PM B.4(D)].
 
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)].
 
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.
 
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).
 
8.
This is authorized by statute in cases of waivers of criminal grounds under INA 212(h)(1)(B).
 
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”).
 
10.
See Matter of Ige, 20 I&N Dec. 885, 885 (BIA 1994) (requiring such an affidavit in suspension of deportation cases).
 
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).
 
12.
See Matter of Federiso, 24 I&N Dec. 661 (BIA 2008).
 
14.
 
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.
 
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.
 
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.”).
 
18.
See Zamora-Garcia v. INS, 737 F.2d 488, 494 (5th Cir. 1984) (requiring, in suspension of deportation case, “consideration of the hardship to the [qualifying applicant] posed by the possibility of separation from the [non-qualifying third party children]”).
 
19.
See Bueno-Carrillo v. Landon, 682 F.2d 143, 146 n.3 (7th Cir. 1982). See Ramos v. INS, 695 F.2d 181, 186 n.12 (5th Cir. 1983).
 
20.
See Matter of O-J-O-, 21 I&N Dec. 381, 383 (BIA 1996).
 
21.
See Matter of O-J-O-, 21 I&N Dec. 381, 383 (BIA 1996). See Matter of Ige, 20 I&N Dec. 880, 882 (BIA 1994) (“Relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.”).
 
22.
See, for example, INA 212(h)INA 212(i), and INA 212(a)(9)(B)(v).
 
23.
See Watkins v. INS, 63 F.3d 844, 850 (9th Cir. 1995) (reversing BIA decision on ground it had failed to aggregate the “professional and social changes” of the petitioner, who was a qualifying relative under the particular statute, with the hardship to the applicant’s children, who were also qualifying relatives). See Prapavat v. INS, 638 F.2d 87, 89 (9th Cir. 1980) (holding that extreme hardship “may also be satisfied … by showing that the aggregate hardship to two or more family members described in 8 U.S.C. 1254(a)(1) is extreme, even if the hardship suffered by any one of them would be insufficient by itself”), on rehearing, 662 F.2d 561, 562-63 (9th Cir. 1981) (per curiam) (again listing both hardships to the qualifying relative petitioners and hardships to their U.S. citizen child, holding that these hardships “must all be assessed in combination,” and finding that the Board had erred in failing to do so). See Jong Ha Wang v. INS, 622 F.2d 1341, 1347 (9th Cir. 1980) (“[T]he Board should consider the aggregate effect of deportation on all such persons when the alien alleges hardship to more than one.”), rev’d on other grounds, 450 U.S. 139 (1981) (per curiam). These decisions all interpreted the former suspension of deportation provision. The list of qualifying individuals (which included the petitioners themselves) whose extreme hardship sufficed under that provision differed from the lists of qualifying relatives in the waiver provisions discussed here, but the statutory language was identical in all other relevant respects (“result in extreme hardship to …”).
 
24.
Hardships that the BIA has held to be “common results” in themselves are insufficient for a finding of extreme hardship. See Matter of Ngai, 19 I&N Dec. 245 (BIA 1984). A common consequence, however, when combined with other factors that alone would also have been insufficient, may meet the extreme hardship standard when considered in the aggregate. For a list of those common consequences, see Chapter 5, Extreme Hardship Considerations and Factors, Section B, Common Consequences [9 USCIS-PM B.5(B)].
 

Chapter 5 - Extreme Hardship Considerations and Factors

A. Totality of the Circumstances

The officer must make extreme hardship determinations based on the factors, arguments, and evidence submitted. [1] 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] 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] 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]

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]
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.
Factors and Considerations for Extreme Hardship
Factors
Considerations
Family Ties and Impact
Qualifying relative’s ties to family members living in the United States, including age, status, and length of residence of any children.
Responsibility for the care of any family members in the United States, particularly children, elderly adults, and disabled adults.
The qualifying relative’s ties, including family ties, to the country of relocation, if any.
Nature of relationship between the applicant and the qualifying relative, including any facts about the particular relationship that would either aggravate or lessen the hardship resulting from separation.
Qualifying relative’s age.
Length of qualifying relative’s residence in the United States.
Length of qualifying relative’s prior residence in the country of relocation, if any.
Prior or current military service of qualifying relative.
Impact on the cognitive, social, or emotional well-being of a qualifying relative who is left to replace the applicant as caregiver for someone else, or impact on the qualifying relative (for example, child or parent) for whom such care is required.
Social and Cultural Impact
Loss of access to the U.S. courts and the criminal justice system, including the loss of opportunity to request or provide testimony in criminal investigations or prosecutions; to participate in proceedings to enforce labor, employment, or civil rights laws; to participate in family law proceedings, victim’s compensation proceedings, or other civil proceedings; or to obtain court orders regarding protection, child support, maintenance, child custody, or visitation.
Fear of persecution or societal discrimination.
Prior grant of U nonimmigrant status.
Existence of laws and social practices in the country of relocation that would punish the qualifying relative because he or she has been in the United States or is perceived to have Western values.
Access or lack of access to social institutions and structures (official and unofficial) for support, guidance, or protection.
Social ostracism or stigma based on characteristics such as gender, gender identity, sexual orientation, religion, race, national origin, ethnicity, citizenship, age, political opinion, marital status, or disability. [6]
Qualifying relative’s community ties in the United States and in the country of relocation.
Extent to which the qualifying relative has integrated into U.S. culture, including language, skills, and acculturation.
Extent to which the qualifying relative would have difficulty integrating into the country of relocation, including understanding and adopting social norms and established customs, including gender roles and ethical or moral codes.
Difficulty and expense of travel/communication to maintain ties between qualifying relative and applicant, if the qualifying relative does not relocate.
Qualifying relative’s present inability to communicate in the language of the country of relocation, as well as the time and difficulty that learning that language would entail.
Availability and quality of educational opportunities for qualifying relative (and children, if any) in the country of relocation.
Availability and quality of job training, including technical or vocational opportunities, for qualifying relative (and children, if any) in the country of relocation.
Economic Impact
Economic impact of applicant’s departure on the qualifying relative, including the applicant’s or qualifying relative’s ability to obtain employment in the country of relocation.
Economic impact resulting from the sale of a home, business, or other asset.
Economic impact resulting from the termination of a professional practice.
Decline in the standard of living, including due to significant unemployment, underemployment, or other lack of economic opportunity in the country of relocation.
Ability to recoup losses, or repay student loan debt.
Cost of extraordinary needs, such as special education or training for children.
Cost of care for family members, including children and elderly, sick, or disabled parents.
Health Conditions 
& Care
Health conditions and the availability and quality of any required medical treatment in the country to which the applicant would be returned, including length and cost of treatment.
Psychological impact on the qualifying relative due to either separation from the applicant or departure from the United States, including separation from other family members living in the United States.
Psychological impact on the qualifying relative due to the suffering of the applicant.
Prior trauma suffered by the qualifying relative that may aggravate the psychological impact of separation or relocation, including trauma evidenced by prior grants of asylum, refugee status, or other forms of humanitarian protection.
Country Conditions [7]
Conditions in the country of relocation, including civil unrest or generalized levels of violence, current U.S. military operations in the country, active U.S. economic sanctions against the country, ability of country to address significant crime, environmental catastrophes like flooding or earthquakes, and other socio-economic or political conditions that jeopardize safe repatriation or lead to reasonable fear of physical harm.
Temporary Protected Status (TPS) designation. [8]
Danger Pay for U.S. government workers stationed in the country of nationality. [9]
Withdrawal of Peace Corps from the country of nationality for security reasons.
DOS Travel Warnings or Alerts, whether or not they constitute a particularly significant factor, as set forth in Part E below.

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]
Eligibility for an immigration benefit ordinarily must exist at the time of filing and at the time of adjudication. [11] 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.
1. Qualifying Relative Previously Granted Iraqi or Afghan Special Immigrant Status, T Nonimmigrant Status, or Asylum or Refugee Status
If a qualifying relative was previously granted Iraqi or Afghan special immigrant status, [12] T nonimmigrant status, asylum status, or refugee status in the United States from the country of relocation and the qualifying relative’s status has not been revoked, those factors would often weigh heavily in support of finding extreme hardship.[13] The existence of this circumstance normally results in hardship greater than the common consequences denying admission, whether in cases involving relocation or separation.
The prior decision to grant the qualifying relative status as an Iraqi or Afghan special immigrant, T nonimmigrant, refugee, or asylee indicates the significantly heightened risk that relocation to the country from which he or she received protection could result in retaliatory violence, persecution or other danger to the qualifying relative. This prior assessment by USCIS would often weigh heavily in support of finding extreme hardship in a case involving relocation.
The same is also true in cases involving separation. The prior assessment by USCIS with respect to the qualifying relative indicates that he or she would likely face increased difficulty returning to that country to visit the applicant, thus generally resulting in hardship that is greater than that normally present in cases involving family separation. The applicant might also show that, due to their relationship, the applicant may experience persecution or other dangers similar to those that gave rise to the qualifying relative’s underlying status. The qualifying relative in such a case may suffer additional psychological trauma due to the potential for harm to the applicant in the country of relocation.
2. Qualifying Relative or Related Family Member’s Disability
Cases involving disabled individuals often involve hardships that rise above the common consequences. If a government agency has made a formal disability determination [14] with regard to the qualifying relative, or with regard to a family member of the qualifying relative who is dependent on the qualifying relative for care, that factor would often weigh heavily in support of finding that either relocation or separation would result in extreme hardship under the totality of the circumstances.
In cases involving either (1) relocation of the qualifying relative with a disability or (2) relocation of both the qualifying relative and the relevant family member with a disability, the applicant will need to show that the services available to the disabled individual in the country of relocation are unavailable or significantly inferior to those available to him or her in the United States. In such cases, the disability determination would often weigh heavily in support of a finding of extreme hardship.
In cases involving separation, the applicant will need to show that the qualifying relative with a disability, or the relevant family member with a disability, generally requires the applicant’s assistance for care due to the disability. Where replacement care is not realistically available and obtainable, the disability determination would often weigh heavily in support of a finding of extreme hardship.
Absent a formal disability determination, an applicant may provide other evidence that a qualifying relative or relevant individual suffers from a medical condition, whether mental or physical, that makes either travel to, or residence in, the country of relocation detrimental to the qualifying relative or family member’s health or safety. Similarly, an applicant may provide other evidence that the condition of the qualifying relative requires the applicant’s assistance for care.
3. Qualifying Relative’s Military Service
Military service by a qualifying relative often results in hardships from denial of the applicant’s admission that rise above the common consequences of denying admission. If a qualifying relative is an Active Duty member of any branch of the U.S. armed forces, [15] or is an individual in the Selected Reserve of the Ready Reserve, denial of an applicant’s admission often causes psychological and emotional harm that significantly exacerbates the stresses, anxieties and other hardships inherent in military service by a qualifying relative.
This may result in an impairment of the qualifying relative’s ability to serve the U.S. military, or to be quickly called into active duty in the case of reservists, which also affects military preparedness. This is often the case even if the qualifying relative’s military service already separates, or will separate, him or her from the applicant. In such circumstances, the applicant’s removal abroad may magnify the stress of military service to a level that would constitute extreme hardship.
4. DOS Travel Warnings
DOS issues travel warnings to notify travelers of the risks of traveling to certain foreign countries. [16] Reasons for issuing travel warnings include, but are not limited to, unstable government, civil war, ongoing intense crime or violence, or frequent terrorist attacks. A travel warning remains in place until changes in circumstances sufficiently mitigate the need for such a warning. With respect to some travel warnings, DOS advises of travel risks to a specific region or regions of the country at issue.
In some situations, DOS issues travel warnings that do more than notify travelers of the risks of traveling to a particular country or region(s) within a country. Rather, DOS affirmatively recommends against travel or affirmatively recommends that U.S. citizens depart. DOS may make such travel warnings country-wide. Such travel warnings may contain language in which:
DOS urges avoiding all travel to the country or region because of safety and security concerns;
DOS warns against all but essential travel to the country or region;
DOS advises deferring all non-essential travel to the country or region; and/or
DOS advises U.S. citizens currently in the country or region to depart.
In cases where a qualifying relative would relocate to a country or region that is the subject of such DOS recommendations against travel, the travel warning would often weigh heavily in support of a finding of extreme hardship. In assessing the dangers in the country of relocation, USCIS officers should give weight to DOS travel warnings, taking into account the nature and severity of such warnings.
Generally, the fact that the country of relocation is currently subject to a DOS country-wide travel warning against travel may indicate that a qualifying relative would face significantly increased danger if he or she were to relocate to that country with the applicant. This significantly increased danger would often support a finding of extreme hardship.
If the relevant travel warning covers only a part or region of the country of relocation, the USCIS officer must determine whether the qualifying relative would relocate to the part or region that is subject to the warning. If the officer finds that this part or region is one to which the qualifying relative plans to return despite the increased danger (for example, because of family relationships or employment opportunities), that may indicate that the qualifying relative would face significantly increased danger if he or she were to relocate to that part or region. This significantly increased danger would often support a finding of extreme hardship.
Alternatively, if the officer finds that the qualifying relative would relocate to a part of the country that is not subject to the travel warning (because of the danger in the part or region covered by the travel warning or for any other reason), that indicates that the qualifying relative would generally not face significantly increased danger upon relocation.
If the officer finds that the qualifying relative would remain in the United States while the applicant returns to a country or region that is subject to a DOS warning against travel, the officer should evaluate whether the separation may result in extreme hardship to the qualifying relative. In such cases, the officer should consider the hardship to the qualifying relative resulting from the increased danger to the applicant in the relevant country or region.
5. Substantial Displacement of Care of Applicant’s Children
USCIS recognizes the importance of family unity and the ability of parents and other caregivers to provide for the well-being of children. [17] Depending on the particular facts of a case, either the continuation of one’s existing caregiving duties under new and difficult circumstances or the need to assume someone else’s caregiving duties can be sufficiently burdensome to rise to the level of extreme hardship. The children do not need to be U.S. citizens or lawful permanent residents (LPRs) in such cases. [18]
In cases involving the separation of spouses in which the qualifying relative is the primary caretaker and the applicant is the primary income earner, the income earner’s refusal of admission often causes economic loss to the caregiver. Although economic loss alone is generally a common consequence of a denial of admission, depending on the particular circumstances the economic loss associated with the denial of admission may create burdens on the caregiver that are severe enough to rise to the level of extreme hardship. That can occur, for example, when the qualifying relative must take on the additional burdens of primary income earner while remaining the primary caregiver. That dual responsibility may significantly disrupt the qualifying relative’s ability to meet his or her own basic subsistence needs or those of the person(s) for whom the care is being provided. In such cases, the dual burden would often support a finding of extreme hardship. In addition, the qualifying relative may suffer significant emotional and psychological impacts from being the sole caregiver of the child(ren) that exceed the common consequences of being left as a sole parent.
In cases involving the separation of spouses in which the qualifying relative is the primary income earner and the applicant is the primary caretaker, the caretaker’s refusal of admission can result in a substantial shift of caregiving responsibility from the applicant to the qualifying relative. Such a shift may significantly affect the qualifying relative’s ability to earn income for the family; disrupt family, social, and cultural ties; or hinder the child(ren)’s psychological, cognitive, or emotional development.
The shift may also frustrate or complicate the qualifying relative’s efforts to provide a healthy, stable, and caring environment for the child(ren). Such additional emotional, psychological and/or economic stress for the qualifying relative could exceed the levels of hardship that ordinarily result from family separation, and rise to the level of extreme hardship. [19]
Under either scenario discussed above, the significant shifting of caregiving or income-earning responsibilities would often weigh heavily in support a finding of extreme hardship to the qualifying relative, provided the applicant shows:
The existence of a bona fide relationship between the applicant and the child(ren);
The existence of a bona fide relationship between the qualifying relative and the child(ren); and
The substantial shifting of caregiving or income-earning responsibilities under circumstances in which the ability to adequately care for the children would be significantly compromised.
To prove a bona fide relationship to the child(ren), the applicant and qualifying relative should have emotional and/or financial ties or a genuine concern and interest for the child(ren)’s support, instruction, and general welfare. [20] Evidence that can establish such a relationship includes (but is not limited to):
Income tax returns;
Medical or insurance records;
School records;
Correspondence between the parties; or
Affidavits of friends, neighbors, school officials, or other associates knowledgeable about the relationship.
To prove the qualifying relative would take on the additional caregiving or income-earning responsibilities, the applicant needs to show that the qualifying relative either (1) is a parent of the child(ren) in question or (2) otherwise has the bona fide intent to assume those responsibilities. Evidence of such an intent could include (but is not limited to):
Legal custody or guardianship of the child;
Other legal obligation to take over parental responsibilities;
Affidavit signed by qualifying relative to take over parental or other caregiving responsibilities; or
Affidavits of friends, neighbors, school officials, or other associates knowledgeable about the qualifying relative’s relationship with the children or intentions to assume parental or other caregiving responsibilities.

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]
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 ahousecleaner 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]
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]

Footnotes

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).
 
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").
 
4.
 
5.
See Matter of O-J-O-, 21 I&N Dec. 381, 383 (BIA 1996).
 
6.
The characteristics for which a person is ostracized or stigmatized may be actual or perceived (that is, the person may actually have that characteristic, or someone may perceive the person as having that characteristic).
 
7.
The officer should consider any submitted government or nongovernmental reports on country conditions specified in the hardship claim. In the absence of any evidence submitted on country conditions, the officer may refer to DOS information on country conditions, such as DOS Country Reports on Human Rights Practices and the most recent DOS Travel Warnings, to corroborate the claim.
 
8.
For more information on TPS, see the USCIS website.
 
9.
See 5 U.S.C. 5928. See Department of State Danger Pay Regulations, available at Standardized Regulations (DSSR).
 
10.
See Section D, Examples of Factors that Might Support Finding of Extreme Hardship [9 USCIS-PM B.5(D)].
 
11.
 
12.
See, for example, Division F, Title VI of the Omnibus Appropriations Act of 2009, Pub. L. 111-8, 123 Stat. 524, 807 (March 11, 2009). See Section 1244 of the National Defense Authorization Act for Fiscal Year 2008, Pub. L. 110-181, 122 Stat. 3, 396 (January 28, 2008). See Section 1059 of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163, 119 Stat. 3136, 3443 (January 6, 2006), as amended by Pub. L. 110-36, 121 Stat. 227 (June 15, 2007).
 
13.
Although it is unlikely that a qualifying relative would have been granted withholding of removal under INA 241(b)(3) or withholding or deferral of removal under the Convention Against Torture (CAT), if a qualifying relative was previously granted such a form of relief, this would often weigh heavily in support of a finding of extreme hardship to that qualifying relative, similar to situations involving qualifying relatives described in this particularly significant factor.
 
14.
Federal agency programs focusing on individuals with disabilities generally rely on definitions found in their authorizing legislation. These definitions may be unique to an agency’s program.
 
15.
See 10 U.S.C. 101. The term “armed forces” means the Army, Navy, Air Force, Marine Corps, and Coast Guard.
 
16.
 
17.
The term “child” includes those related to the applicant by birth, adoption, marriage, legal custody, or guardianship.
 
18.
In this scenario, the children are assumed to be under age 21. See INA 101(b)(1) and INA 101(c)(1).
 
19.
These scenarios are not exhaustive. For example, even when a qualifying relative is not the primary caretaker or breadwinner. Nonetheless, the loss of the applicant’s contribution to caretaking or support may have consequences that rise to the level of extreme hardship to the qualifying relative based on the totality of the circumstances.
 
20.
USCIS applies a similar principle when assessing whether there is a bona fide relationship between a father and his child born out of wedlock. See INA 101(b)(1)(D) and 8 CFR 204.2(d)(2)(iii).
 
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].
 
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)].
 
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)].
 

Chapter 6 - Extreme Hardship Determinations

A. Evidence

Most instructions to USCIS forms list the types of supporting evidence that applicants may submit with those forms. [1] 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:
Expert opinions;
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] 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 availablesupporting documentation. [3] 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]when appropriate, to verify whether these particular documents are ordinarily unavailable in the relevant country. [5]

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] 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]
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]
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] If the officer ultimately finds that the applicant has not met the above burden, the waiver application must be denied.

Footnotes

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).
 
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.
 
3.
 
4.
See the DOS website.
 
5.
See also DOS Bureau of Consular Affairs website for more information on birth certificates under reciprocity by country.
 
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).
 
7.
See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (preponderance of the evidence means more likely than not).
 
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)].
 
9.
See Chapter 7, Discretion [9 USCIS-PM B.7].
 

Chapter 7 - Discretion

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]
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] or underlying fraud, [3] 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.

Footnotes

1.
See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).
 
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).
 
3.
See INS v. Yueh-Shaio Yang, 519 U.S. 26, 30-32 (1996). See Matter of Cervantes-Gonzalez22 I&N Dec. 560, 568-69 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001).
 

Part C - Waivers for Health-Related Grounds of Inadmissibility

Chapter 1 - Purpose and Background

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]
Civil surgeons or panel physicians complete these documents after the medical examination of the applicant, [2] 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]
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] 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]
The Immigration Act of 1990 [6] 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] 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] All medical grounds of inadmissibility have a corresponding waiver under this section except for inadmissibility based on drug abuse or addiction. [9]
Applicants for other immigration benefits categories, such as refugees and asylees seeking adjustment, [10] Legalization or SAW applicants, [11] 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] , [13]
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]
Applying for Waiver of Health-Related Ground of Inadmissibility
Immigration Benefits Category
Statutory Authority for Waiver
Relevant Form
Adjustment of status or immigrant visa
Application for Waiver of Grounds of Inadmissibility (Form I-601) (with the appropriate fee unless waived)
Admission as refugee under INA 207
Application by Refugee for Waiver of Grounds of Excludability (Form I-602) (no fee associated)
Refugee or asylee applying for adjustment of status under INA 209
Legalization under INA 245A
Application for Waiver of Grounds of Inadmissibility Under Sections 245A or 210 of the Immigration and Nationality Act (Form I-690) (with the appropriate fee unless waived)
Special Agricultural Workers (SAW) under INA 210
T and U nonimmigrant visa
Application for Advance Permission to Enter as Nonimmigrant (Form I-192) (with the appropriate fee unless waived)
Other nonimmigrant visa

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.

Footnotes

1.
As of October 1, 2013, panel physicians only use DS-2054.
 
2.
See INA 212 and INA 232.
 
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.
 
4.
See Pub. L. 85-316 (September 11, 1957).
 
5.
See Pub. L. 89-236 (October 3, 1965).
 
6.
See Pub. L. 101-649 (November 29, 1990).
 
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 addiction
See Volume 8, AdmissibilityPart B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B] for more information.
 
8.
Under INA 212(g).
 
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).
 
10.
Under INA 209.
 
11.
Under INA 245A and INA 210.
 
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.
 
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.
 

Chapter 2 - Waiver of Communicable Disease of Public Health Significance

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]USCIS may grant this waiver in accordance with such terms, conditions, [2] and controls, if any, that USCIS considers appropriate after consultation with the Secretary of HHS. [3] 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] 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] 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

1. Qualifying Relationship
To be eligible for the waiver, the applicant must be one of the following:
The spouse, parent, child, unmarried son or daughter, [6] or minor unmarried lawfully adopted child [7] of:
A U.S. citizen,
A person lawfully admitted for permanent residence, or
A person who has been issued an immigrant visa.
Eligible for classification as a self-petitioning spouse or child. [8] 
The fiancé(e) of a U.S. citizen or the fiancé(e)’s child.
The officer should verify that the existence of the appropriate relationship is well supported in the applicant’s file.
2. Documentation for CDC’s Review
As stated above, USCIS can only grant this waiver after it has consulted with CDC. However, CDC’s review of necessary documents does not constitute a waiver approval. CDC may recommend that USCIS should make the waiver subject to appropriate terms, conditions, or controls.
To obtain CDC’s review of a waiver application, the officer should forward the following documents to CDC:
A cover letter that identifies the USCIS office requesting the review;
A copy of the waiver application (including the TB supplement, [9] if applicable) that contains all the required signatures, but not the supporting documentation that is not medically relevant; [10] 
A copy of the medical examination documentation; [11] 
Copies of all other medical reports, laboratory results, and evaluations regardless of whether they are connected to the communicable disease of public health significance.
Officers should only send copies, not originals, because CDC will retain the documents.
3. Sending Documents to CDC
The documents should be mailed to the following address:
Centers for Disease Control and Prevention (CDC)
Division of Global Migration and Quarantine
1600 Clifton Road, Mailstop E 03
Atlanta, GA 30333
Attention: Quality Assessment Program (QAP)/Waivers
If the officer determines that a waiver case warrants expeditious review by CDC, the case may be faxed to (404) 639-4441 or emailed to cdcqap@cdc.gov, Attention: Quality Assessment Program (QAP)/Waivers, Urgent. If sent via email, the documents should be sent in password protected file(s). If sent via fax, the fax cover sheet should request that the case be reviewed expeditiously and that CDC’s response be sent via fax. The officer should also email CDC at cdcqap@cdc.gov, advising that an expedited request was sent via fax.
4. CDC Response
Once CDC receives and reviews the documents, CDC will forward a response letter with results of the review to the requesting USCIS office. CDC will not return any of the documents provided by USCIS; CDC will only send its recommendation in the response to the requesting USCIS office.
CDC’s usual processing time for review and response to the requesting USCIS office is approximately 4 weeks. If CDC’s response appears delayed, the officer may contact CDC at cdcqap@cdc.gov to obtain a status update.
Upon receipt, the officer should review CDC’s response letter to determine next steps.
If CDC’s response letter indicates that CDC was satisfied with the initial documentation and that it does not require additional information, then the officer may proceed to the next step of the waiver adjudication. If CDC was not satisfied with the documentation, it may request additional information or recommend additional conditions to be met before the waiver may be granted. In such a case, the officer should issue a Request for Evidence (RFE) for the applicant to provide the additional information or to demonstrate that he or she made the arrangements required by CDC.
If CDC requests it, the officer will need to submit the information obtained through the RFE to CDC to determine whether the additional information is sufficient. CDC will provide a response letter to the requesting USCIS office advising if the additional information is sufficient. [12]
Once CDC indicates no additional information is needed, the officer may proceed with the next step of the waiver adjudication.
5. Discretion
As is generally the case for waivers, a waiver for communicable diseases of public health significance requires an officer to consider whether the grant of the waiver is warranted as a matter of discretion. Hardship to a qualifying relative is not required for this waiver. [13]
CDC’s response in support of granting the waiver should ordinarily be sufficient to warrant a favorable exercise of discretion for the grant of the waiver. However, if an applicant declares openly his or her unwillingness to commit to treatment, the waiver may be denied as a matter of discretion. [14] If CDC does not issue a favorable recommendation, the officer generally should not grant the waiver as a matter of discretion.
By statute, it is USCIS’s decision whether to make the waiver subject to terms, conditions, or controls. A CDC recommendation concerning terms, conditions, or controls on the granting of the waiver ordinarily carries great persuasive weight.
Once a final decision (approval or denial) is made on the waiver, the officer should inform CDC of the decision. The officer should provide a brief statement indicating the final action and date of the action and forward it to CDC by any of the following methods:
Mail:
Centers for Disease Control and Prevention (CDC)
Division of Global Migration and Quarantine
1600 Clifton Road, Mailstop E 03
Atlanta, GA 30333
Attention: Quality Assessment Program (QAP)/Waivers
Fax: (404) 639-4441

D. Step-by-Step Checklist

Step-by-Step Checklist
Step 1
Check for qualifying relationship to determine whether the applicant is eligible for the waiver.
Step 2
Gather the necessary documentation for CDC review.
Step 3
Send documentation to CDC.
Step 4
Review CDC response.
Step 5
Analyze whether the waiver should be granted as a matter of discretion.
Step 6
Inform CDC of waiver decision.

Footnotes

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].
 
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.
 
3.
 
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.
 
5.
See 42 CFR 34.2(b) as amended by 74 FR 56547 (November 2, 2009).
 
6.
USCIS interprets the references to “unmarried son or daughter” as embracing both those sons and daughters who qualify as “children” because they are not yet 21 years old and sons and daughters who are over 21, so long as they are not married.
 
7.
USCIS interprets “minor unmarried lawfully adopted child” as a clarifying, not as a restricting, provision. Therefore, an applicant is eligible to apply for this waiver if he or she qualifies as the “child” of a citizen or permanent resident (or a person who has received an immigrant visa) under any provision of INA 101(b)(1). This includes, but is not limited to, both children adopted abroad to be admitted in class IR3 or IH3 and children whose adoption will be finalized in the United States to be admitted in class IR4 or IH4.
 
8.
Under INA 204(a)(1)(A)(iii) or INA 204(a)(1)(A)(iv) or INA 204(a)(1)(B)(ii) or INA 204(a)(1)(B)(iii), including derivative children of the person. This includes self-petitioning spouses and children eligible for classification under INA 204(a)(1)(A)(v) or INA 204(a)(1)(B)(iv).
 
9.
TB is currently the only communicable disease of public health significance that requires a supplement.
 
10.
For instance, evidence of the family relationship.
 
11.
Report of Medical Examination and Vaccination Record (Form I-693); Medical Examination for Immigrant or Refugee Applicant (1991 TB Technical Instructions) (Form DS-2053) or the Medical Examination for Immigrant or Refugee Applicant (2007 TB Technical Instructions) (Form DS-2054), and related worksheets.
 
12.
For Class A TB waivers, CDC’s response letter will provide a specific recommendation whether CDC supports the granting of a waiver.
 
13.
 
14.
If CDC certifies that an applicant who obtained an INA 212(g) waiver has failed to comply with any terms, conditions, or controls on the waiver, the applicant is subject to removal per INA 237(a)(1)(C)(ii). The U.S. health care provider treating the particular condition should provide a summary of the applicant’s initial evaluation to CDC or notify CDC that the applicant has failed to report for care. Generally, no further follow-up is required by the officer.
 

Chapter 3 - Waiver of Immigrant Vaccination Requirement

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] 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]
The civil surgeon or panel physician certifies that such vaccination would not be medically appropriate; [3] or
The requirement of such a vaccination would be contrary to the applicant’s religious beliefs or moral convictions. [4]
Each of these waivers has its own requirements. [5] 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]

C. Blanket Waiver for Missing Vaccination Documentation [7]

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] 

1. Situations Specified in the Law [9]
If the civil surgeon or the panel physician certifies that a vaccine is not medically appropriate for one or more of the following reasons, the officer may grant a blanket waiver (without requesting a form and fee):
The vaccine is not age appropriate;
The vaccine is contraindicated;
There is an insufficient time interval to complete the vaccination series; or
It is not the flu season, or the vaccine for the specific flu strain is no longer available.
Once the civil surgeon or panel physician annotates that the vaccine(s) is not medically appropriate, no further annotation is needed and the officer may proceed with granting the waiver. The civil surgeon’s or panel physician’s annotation on the vaccination assessment sufficiently documents that the requirements for the waiver have been met; the officer does not need to make any further annotation on the vaccination report.
2. Nationwide Vaccination Shortage [10]
USCIS will grant a blanket waiver in the case of a vaccination shortage only if CDC recommends that USCIS should do so, and USCIS has published the appropriate guidance on its website. CDC will only make such a recommendation to USCIS after verifying that there is indeed a nationwide vaccination shortage and issuing the appropriate statement on its website for civil surgeons. In turn, USCIS will issue the appropriate statement on its website.
The term “nationwide vaccine shortage” does not apply to the medical examination conducted by a panel physician overseas. If a vaccine is not available in the applicant’s country, the panel physician will annotate the vaccination assessment with the term “not routinely available.” If an officer encounters this annotation, the officer may grant a blanket waiver based on this annotation alone.

E. Waiver due to Religious Belief or Moral Conviction [11] 

1. General
USCIS may grant this waiver when the applicant establishes that compliance with the vaccination requirements would be contrary to his or her religious beliefs or moral convictions. Unlike other waivers of medical grounds of inadmissibility, there is no requirement that CDC review this waiver.
If, upon review of the medical documentation, the officer finds that the applicant is missing a vaccine and a blanket waiver is not available, the officer should ask the applicant why the vaccine is missing. The officer may request clarification during an interview or by sending an RFE.
If the applicant indicates that he or she does not oppose vaccinations based on religious beliefs or moral convictions, the applicant may be inadmissible if he or she refuses to obtain the missing vaccine(s). The officer should issue an RFE if the applicant is willing to obtain the vaccine.
If the applicant indicates that he or she opposes vaccinations, the officer should inform the applicant of the possibility of the waiver. The officer should explain the basic waiver requirements for a religious belief or moral conviction waiver, as outlined below. The officer should, at that time, issue an RFE [12] for the waiver application.
Upon receipt of the waiver documentation, the officer should proceed with the adjudication of the waiver.
2. Requirements
With the adjudication of this waiver, USCIS has always taken particular caution to avoid any perceived infringement on personal beliefs and First Amendment rights to free speech and religion. To best protect the public health, USCIS, in consultation with CDC, has established the following three requirements that an applicant (or, if the applicant is a child, the applicant’s parents) has to demonstrate through documentary evidence:
The applicant must be opposed to all vaccinations in any form. [13]
The applicant has to demonstrate that he or she opposes vaccinations in all forms; the applicant cannot “pick and choose” between the vaccinations. The fact that the applicant has received certain vaccinations but not others is not automatic grounds for the denial of a waiver. Instead, the officer should consider the reasons provided for having received those vaccines.
For example, the applicant's religious beliefs or moral convictions may have changed substantially since the date the particular vaccinations were administered, or the applicant is a child who may have already received certain vaccinations under the routine practices of an orphanage. These examples do not limit the officer’s authority to consider all credible circumstances and accompanying evidence.
The objection must be based on religious beliefs or moral convictions.
This second requirement should be handled with sensitivity. On one hand, the applicant's religious beliefs must be balanced against the benefit to society as a whole. On the other hand, the officer should be mindful that vaccinations offend certain persons' religious beliefs.
The religious belief or moral conviction must be sincere.
To protect only those beliefs that are held as a matter of conscience, the applicant must demonstrate that he or she holds the belief sincerely, and in subjective good faith of an adherent. Even if these beliefs accurately reflect the applicant's ultimate conclusions about vaccinations, they must stem from religious or moral convictions, and must not have been framed in terms of a particular belief so as to gain the legal remedy desired, such as this waiver.
While an applicant may attribute his or her opposition to a particular religious belief or moral conviction that is inherently opposed to vaccinations, the focus of the waiver adjudication should be on whether that claimed belief or moral conviction is truly held, that is, whether it is applied consistently in the applicant’s life.
The applicant does not need to be a member of a recognized religion or attend a specific house of worship. Note that the plain language of the statute refers to religious beliefs or moral convictions, not religious or moral establishments.
It is necessary to distinguish between strong religious beliefs or moral convictions and mere preference. Religious beliefs or moral convictions are generally defined by their ability to cause an adherent to categorically disregard self-interest in favor of religious or moral tenets. The applicant has the burden of establishing a strong objection to vaccinations that is based on religious beliefs or moral convictions, as opposed to a mere preference against vaccinations.
3. Evidence
The applicant’s objection to the vaccination requirement on account of religious belief or moral conviction may be established through the applicant’s sworn statement. In this statement, the applicant should state the exact nature of those religious beliefs or moral convictions and establish how such beliefs would be violated or compromised by complying with the vaccination requirements.
Additional corroborating evidence supporting the background for the religious belief or moral conviction, if available and credible, should also be submitted by the applicant and considered by the officer. For example, regular participation in a congregation can be established by submitting affidavits from other members in the congregation, or evidence of regular volunteer work.
The officer should consider all evidence submitted by the applicant.
4. Discretion
As is generally the case for waivers, a waiver of the vaccination requirement requires an officer to consider whether the grant of the waiver is warranted as a matter of discretion.
A favorable exercise of discretion is generally warranted if the applicant establishes that he or she objects to the vaccination requirement on account of religious beliefs or moral convictions.

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.
Adjudication Vaccination Requirement Waiver
Based on Religious Beliefs or Moral Convictions
Step
If YES …
If NO …
Step 1: Review the evidence for any indication that the applicant opposes the vaccination requirement based on religious beliefs or moral convictions.
Explain (during the interview or through an RFE) the waiver requirements and request that the applicant file a waiver, if he or she has not already done so. Proceed to Step 3.
RFE or interview to ascertain reasons why vaccines were not given. Proceed to Step 2A.
Step 2A: Did the applicant oppose the vaccines?
Explain to the applicant (at interview or through RFE) the waiver requirements and request that the applicant file a waiver if not already done so. Proceed to Step 3.
Proceed to Step 2B.
Step 2B: Is the applicant willing to obtain the missing vaccine?
Issue an RFE for corrective action of the vaccination assessment. Upon receipt of response to RFE, determine whether the vaccine requirement has been met. If the applicant is still missing vaccines, and no blanket waiver is available, begin at Step 1 again.
Applicant is inadmissible based on INA 212(a)(1)(A)(ii) (irrespective of the grant of any blanket waivers).
Step 3: Review the waiver application to determine whether the applicant opposes the vaccination requirement in any form.
Proceed to Step 4.
The waiver should be denied and the applicant is inadmissible based on INA 212(a)(1)(A)(ii) (irrespective of the grant of any blanket waivers).
Step 4: Review the waiver application to determine whether the applicant opposes the vaccination requirement on account of religious belief or moralconviction.
Proceed to Step 5.
The waiver should be denied and the applicant is inadmissible based on INA 212(a)(1)(A)(ii) (irrespective of the grant of any blanket waivers).
Step 5: Analyze whether the waiver application reflects that the applicant’s belief is sincere.
Proceed to Step 6.
The waiver should be denied and the applicant is inadmissible based on INA 212(a)(1)(A)(ii) (irrespective of the grant of any blanket waivers).
Step 6: Analyze whether the waiver should be granted as a matter of discretion; ordinarily, the finding that the applicant holds sincere religious or moral objections should be sufficient for a grant of the waiver.
Grant the waiver.
The waiver should be denied and the applicant is inadmissible based on INA 212(a)(1)(A)(ii) (irrespective of the grant of any blanket waivers).

Footnotes

2.
 
3.
 
4.
 
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)].
 
6.
See Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B] for more information on the admissibility determination.
 
7.
 
8.
 
9.
See Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 9, Vaccination Requirement [8 USCIS-PM B.9].
 
10.
See Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 9, Vaccination Requirement [8 USCIS-PM B.9] for more information on blanket waivers based on a nationwide vaccination shortage.
 
11.
 
12.
An officer should only issue one RFE, requesting all the necessary information, including the request for the waiver application.
 
13.
The requirement that the religious or moral objection must apply to all vaccines has been in effect since 1997. The former INS created this policy in light of principles developed regarding conscientious objection to the military draft and challenges to State-mandated vaccinations for public school students.
 

Chapter 4 - Waiver of Physical or Mental Disorder Accompanied by Harmful Behavior

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]
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] 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

1. Qualifying Relationship
Unlike waivers for communicable diseases of public health significance, waivers for physical or mental disorders with associated harmful behaviors do not require a qualifying relationship.
2. Documentation for CDC’s Review
As noted above, USCIS can only grant this waiver after it has consulted with CDC. However, CDC’s review of the necessary documents does not constitute a waiver approval. CDC may recommend that USCIS should make the waiver subject to appropriate terms, conditions, or controls.
To obtain CDC’s review of the waiver application, the officer should forward the following documents to CDC:
A cover letter that identifies the USCIS office requesting the review;
A copy of the waiver application that contains all the required signatures, but not the supporting documentation that is not medically relevant; [3] 
A copy of the medical examination documentation; [4] 
A copy of the supporting medical report, if provided, detailing the physical or mental disorder that is associated with the harmful behavior and the physician’s recommendation regarding the course and prospects of the treatment; [5] and
Copies of all other medical reports, laboratory results, and evaluations regardless of whether they are connected to the mental or physical disorder with associated harmful behavior.
Officers should only send copies, not originals, because CDC retains the documents.
3. Sending Documents to CDC
The documents should be mailed to the following address:
Centers for Disease Control and Prevention (CDC)
Division of Global Migration and Quarantine
1600 Clifton Road, Mailstop E 03
Atlanta, GA 30333
Attention: Quality Assessment Program (QAP)/Waivers
If the officer determines that a waiver case warrants expeditious review by CDC, the case may be faxed to (404) 639-4441 or emailed to cdcqap@cdc.gov, Attention: Quality Assessment Program (QAP)/Waivers, Urgent. If sent via email, the documents should be sent in password protected file(s). If sent via fax, the fax cover sheet should request that the case be reviewed expeditiously and that CDC’s response be sent via fax. The officer should also email CDC at cdcqap@cdc.gov, advising that an expedited request was sent via fax.
4. CDC Response
Once the documents are received by CDC, the documents are reviewed by CDC’s consultant psychiatrist and results of that review are forwarded to the requesting USCIS office. CDC will not return any of the documents provided by USCIS.
CDC’s usual processing time for review and response to the requesting USCIS office is approximately 4 weeks. If CDC’s response appears delayed, the officer may contact CDC at cdcqap@cdc.gov to obtain a status update.
Upon receipt, the officer should review CDC’s response to determine next steps.
If CDC agrees in its response that the applicant has a Class A condition, CDC will send to the USCIS requesting office CDC 4.422-1 forms, Statements in Support of Application for Waiver of Inadmissibility Under Section 212(a)(1)(A)(iii)(I) or 212(a)(1)(A)(iii)(II) of the Immigration and Nationality Act. The officer must provide the CDC 4.422-1 forms [6] to the applicant (or the applicant’s sponsor) for completion. Once the CDC forms are completed and returned to USCIS, the officer must return the completed forms to CDC for review and endorsement.
Once CDC receives the completed forms, it reviews them to determine whether the applicant has identified an appropriate U.S. health care provider and that the health care provider has completed the forms. If the appropriate U.S. health care provider has been identified, CDC will endorse the forms and return them to the requesting USCIS office.
If CDC’s response indicates that the applicant is “Class B” or “no Class A or B,” it is CDC’s recommendation that the applicant does not require a waiver for the medical condition.
If CDC’s response indicates that additional information is needed in order to complete the review, the officer should issue a Request for Evidence (RFE) for the applicant to provide additional information as specified by CDC. The officer should submit the information obtained through the RFE to CDC. CDC will provide a response to USCIS regarding the additional information. Once CDC indicates that no additional information is needed, the officer may proceed with the adjudication of the waiver.
5. Discretion
As is generally the case for waivers, a waiver for mental or physical conditions with associated harmful behavior requires an officer to consider whether the grant of the waiver is warranted as a matter of discretion. [7]
CDC’s review and endorsement of the identified U.S. health care provider should ordinarily be sufficient to warrant a favorable exercise of discretion for the grant of the waiver. However, if an applicant declares openly his or her unwillingness to commit to treatment, the waiver may be denied as a matter of discretion. [8] If CDC does not favorably endorse the identified U.S. health care provider, the officer should generally not grant the waiver as a matter of discretion.
By statute, it is USCIS’s decision whether to make the waiver subject to terms, conditions or controls. A CDC recommendation concerning terms, conditions, or controls on the granting of the waiver ordinarily has great persuasive weight, but is not binding on USCIS.
USCIS should inform CDC of the decision (approval or denial) of the waiver. The officer does so by completing the CDC response letter that CDC provided when it returned the endorsed CDC forms to the officer.

C. Step-by-Step Checklist

Step-by-Step Checklist
Step 1
Gather the necessary documentation for CDC review.
Step 2
Send documentation to CDC.
Step 3
Review CDC response.
Step 4
If applicable, have CDC 4.422.1 forms completed by the applicant and return them for endorsement by CDC.
Step 5
Analyze whether the waiver should be granted as a matter of discretion.

Footnotes

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.
 
2.
 
3.
For instance, evidence of the family relationship.
 
4.
Report of Medical Examination and Vaccination Record (Form I-693); Medical Examination for Immigrant or Refugee Applicant (1991 TB Technical Instructions) (Form DS-2053) or the Medical Examination for Immigrant or Refugee Applicant (2007 TB Technical Instructions) (Form DS-2054), and related worksheets.
 
5.
The Instructions to Form I-601 detail the contents that should be included in the doctor’s report.
 
6.
The CDC 4.422-1 forms are used to identify an appropriate U.S. health care provider for the waiver applicant. The forms are generated for the specific waiver applicant by CDC. Part II must be completed by U.S. health care provider and Part III must be completed by the applicant and/or the applicant’s sponsor.
 
7.
Neither a qualifying relationship nor a finding of hardship is required.
 
8.
If CDC certifies that a person who obtained an INA 212(g) waiver has failed to comply with any terms, conditions, or controls on the waiver, the person is subject to removal per INA 237(a)(1)(C)(ii). The U.S. health care provider treating the particular condition should provide a summary of the applicant’s initial evaluation to CDC as provided on CDC 4.422-1 form. Generally, no further follow-up is required by the officer.
 

Chapter 5 - Waiver of Drug Abuse and Addiction

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]

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.

Footnotes

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.
 

Part G - Waivers for Fraud or Willful Misrepresentation

Chapter 1 - Purpose and Background

A. Purpose

An applicant who is inadmissible for fraud or willful misrepresentation may be eligible for a waiver. [1] 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] 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] limited the availability of the waiver and eliminated the possibility of applying for a waiver if more than 10 years have passed. [4] 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] 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] by creating two inadmissibility grounds within the same provision:
Inadmissibility for fraud or willful misrepresentation; [7] and
Inadmissibility for falsely claiming U.S. citizenship on or after September 30, 1996. [8]
The waiver [9] discussed in this Part G only applies to applicants who are inadmissible for fraud or willful misrepresentation. [10]
Inadmissibility based on a false claim to U.S. citizenship made on or after September 30, 1996 [11] cannot be waived through a waiver for fraud or willful misrepresentation. [12] 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] available to applicants listed in the table below.
Classes of Applicants Eligible to Apply for Waiver under INA 212(i)
Applicants seeking:
An immigrant visa or adjustment of status based on a family-based petition or as a VAWA self-petitioner
An immigrant visa or adjustment of status based on an employment-based petition
A nonimmigrant K visa (fiancé(e)s of U.S. citizens and their accompanying minor children, foreign spouses, and step-children of U.S. citizens)
A nonimmigrant V visa (spouses and unmarried children under age 21, or step-children of lawful permanent residents)
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] 
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.
Available Waiver of Inadmissibility Based on
Fraud or Willful Misrepresentation
Applicant Category
Relevant Form
Applicants for adjustment of status, immigrant visas, and K and V nonimmigrant visas seeking waiver under INA 212(i)
Application for Waiver of Grounds of Inadmissibility
Temporary Protected Status (TPS) applicants seeking waiver under INA 244(c)
Application for Waiver of Grounds of Inadmissibility
Applicants for admission as refugees under INA 207
Application by Refugee for Waiver of Grounds of Inadmissibility
Refugees and asylees applying for adjustment of status under INA 209 [15]
Application by Refugee for Waiver of Grounds of Inadmissibility
Legalization applicants under INA 245A
Application for Waiver of Grounds of Inadmissibility
Special Agricultural Workers (SAW) under INA 210
Application for Waiver of Grounds of Inadmissibility
Nonimmigrants, including T and U [16] visa applicants (but not K and V nonimmigrants)
Application for Advance Permission to Enter as Nonimmigrant
1. Immigrants, Adjustment of Status Applicants, and K and V Visa Applicants
USCIS has the discretion to waive inadmissibility based on fraud or willful misrepresentation [17] for:
A VAWA self-petitioner seeking adjustment of status;
An immigrant visa applicant who is the spouse, son, or daughter of a U.S. citizen or LPR;
An adjustment of status applicant who is the spouse, son, or daughter of a U.S. citizen or LPR;
A V visa applicant who is the spouse, son, or daughter of a U.S. citizen or LPR;
A K visa applicant who is the fiancé(e) of a U.S. citizen, or the applicant’s children; [18] and
A K-3 or K-4 visa applicant. [19]
The instructions to Form I-601 and the USCIS website detail when and where the applicant should file the waiver. [20]
2. Refugees
An applicant seeking admission as a refugee and who is inadmissible for fraud or willful misrepresentation may seek a waiver. [21] The waiver may be approved if the grant serves humanitarian purposes, family unity, or other public interests. The waiver is processed overseas as part of the refugee package.
3. Asylee and Refugee Based Adjustment Applicants
At the time of adjustment, asylees and refugees seeking adjustment of status may apply for a waiver of inadmissibility for fraud or willful misrepresentation. [22] The waiver can be approved if the grant serves humanitarian purposes, family unity, or other public interests. Under current USCIS policy, the officer has the discretion to grant the waiver with or without a waiver application for certain grounds of inadmissibility.
Waiver applications for refugees are usually adjudicated overseas before the applicant is admitted in the refugee classification. However, if the refugee is inadmissible based on actions that occurred prior to or after admission, the refugee can apply for a waiver when seeking adjustment.
4. Legalization and SAW Applicants
Legalization applicants [23] and Special Agricultural Workers (SAW) applicants [24] may be granted a waiver of inadmissibility based on fraud or willful misrepresentation if the grant serves humanitarian purposes, family unity, or other public interests. [25]
5. Nonimmigrants, including T and U Nonimmigrant Visa Applicants
An applicant seeking admission as a nonimmigrant and who is inadmissible for fraud or willful misrepresentation may obtain a waiver for advance permission to enter the United States. [26] This waiver is granted at the discretion of the Secretary of Homeland Security.
If the applicant is seeking a nonimmigrant visa (other than K, T, U, and V) overseas, the applicant must apply for the waiver through a U.S. Consulate. The Customs and Border Protection (CBP) Admissibility Review Office (ARO) adjudicates the waiver. [27] If the applicant is not required to have a visa (other than visa waiver applicants) and is applying for the waiver at the U.S. border, the application is filed with CBP. [28]
If the applicant is applying for a T or U nonimmigrant visa, the applicant must always file the waiver application with USCIS.
If the applicant is applying for a K or V nonimmigrant visa, the applicant is generally treated as if he or she is an intending immigrant. Therefore, the applicant must file a waiver application with USCIS if inadmissible for fraud or willful misrepresentation. [29] If USCIS grants the waiver, DOS will grant a nonimmigrant waiver [30]without CBP involvement.

Footnotes

1.
 
2.
 
3.
See Section 349 of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-639 (September 30, 1996).
 
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).
 
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).
 
6.
 
7.
 
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).
 
9.
Under INA 212(i).
 
10.
 
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).
 
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.
 
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.
 
14.
This includes false claims to U.S. citizenship made before September 30, 1996.
 
15.
If the officer has sufficient information in the file to determine whether the ground can be waived, then no form is required.
 
16.
T nonimmigrant status is for victims of human trafficking. U nonimmigrant status is for victims of certain criminal activity.
 
17.
Under INA 212(i).
 
18.
A fiancé(e) is not yet the spouse of the U.S. citizen. K inadmissibility issues, however, 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.
 
19.
Foreign spouses or step-children of U.S. citizens.
 
20.
For information on the adjudication of these waivers, see Chapter 2, Adjudication of Fraud and Willful Misrepresentation Waivers [9 USCIS-PM G.2].
 
21.
These applicants seek a waiver under INA 207.
 
22.
These applicants seek a waiver under INA 209.
 
23.
See INA 245A and any legalization-related class settlement agreements.
 
24.
See INA 210.
 
25.
For more information on waivers for legalization applicants, see INA 245A(d)(2)(B)(i). See 8 CFR 245a.2(k), and 8 CFR 245a.18. For more information on waivers for SAW applicants, see INA 210(c)(2)(B)(i).
 
26.
These applicants seek relief under INA 212(d)(3).
 
27.
 
28.
See Customs and Border Protection website for more information.
 
29.
See INA 212(i).
 
30.
 

Chapter 2 - Adjudication of Fraud and Willful Misrepresentation Waivers

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]
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] 
General Guidelines for Adjudication of
Fraud and Willful Misrepresentation Waivers
Step 1
Determine whether the applicant is a VAWA self-petitioner or has established the relationship to the qualifying relative.
Step 2
Determine whether the applicant has demonstrated that his or her qualifying relative (or the applicant himself or herself, if a VAWA self-petitioner) would suffer extreme hardship if the applicant were denied admission to or removed from the United States as a result of the denial of the waiver.
Step 3
Determine whether the waiver should be granted as a matter of discretion, particularly whether positive equities such as humanitarian relief to a qualifying relative and family unity overcome negative factors such as fraud and willful misrepresentation.

B. Waiver Adjudication

1. Determine Whether the Applicant Has a Qualifying Relative
For cases other than VAWA self-petitioners, the applicant must have a qualifying relative who is either the applicant’s:
U.S. citizen parent or spouse;
Lawful permanent resident (LPR) parent or spouse; or
U.S. citizen fiancé(e) petitioner (for K-1 or K-2 visa applicants only).
U.S. citizen or LPR children are not qualifying relatives.
A VAWA self-petitioner does not need a qualifying relative, since the VAWA self-petitioner may claim extreme hardship to himself or herself. The VAWA self-petitioner may also claim extreme hardship to a U.S. citizen, LPR, or qualified alien parent or child. [3]
The evidence needed to establish that an applicant has a qualifying relative is generally the same as the evidence required to establish the underlying relationship for a relative or fiancé(e) visa petition.
2. Make an Extreme Hardship Determination
An applicant must demonstrate that his or her qualifying relative (or the applicant himself or herself, if a VAWA self-petitioner) would suffer extreme hardship if the applicant were refused admission to or removed from the United States as a result of the denial of the waiver.
If the applicant fails to establish extreme hardship, then the officer must deny the waiver application because the applicant has not met the statutory requirements of the waiver. Before denying the waiver, the officer should follow standard operating procedures regarding issuance of a Request for Evidence or Notice of Intent to Deny.
In general, a finding that the applicant has not shown extreme hardship is sufficient to support a denial of the waiver application. If the applicant has not established extreme hardship, then it is unnecessary to determine whether the waiver would have been granted as a matter of discretion. There may be instances, however, where the applicant’s past actions were so egregious that the officer may want to note in the decision that even if extreme hardship were found, the application would be denied as a matter of discretion.
If the applicant has established extreme hardship, the officer should proceed with the discretionary determination.
3. Analyze Whether the Waiver Should Be Granted as a Matter of Discretion
A fraud or willful misrepresentation waiver generally requires an officer to consider whether granting the waiver is warranted as a matter of discretion. The officer should determine whether the applicant’s positive factors outweigh the negative factors.
The finding of extreme hardship experienced by a qualifying relative (or the VAWA self-petitioner himself or herself) is the first positive factor for consideration. The underlying fraud or willful misrepresentation itself is the first negative factor to consider. [4] The nature, seriousness, and underlying circumstances of the fraud or willful misrepresentation may influence the weight given to this negative factor. Considerations include, but are not limited to:
The facts and circumstances surrounding the fraud or willful misrepresentation;
The reasons and motivations of the applicant when the fraud or willful misrepresentation was committed;
Age or mental capacity of the applicant when the fraud was committed;
Whether the applicant has engaged in a pattern of fraud or whether it was merely an isolated act of misrepresentation; [5] and
The nature of the proceedings in which the applicant committed the fraud or willful misrepresentation. [6]

Footnotes

1.
For more on inadmissibility for fraud and willful misrepresentation, see Volume 8, Admissibility, Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].
 
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].
 
4.
See INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996). See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999).
 
5.
See INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996).
 
6.
In Matter of Tijam, 22 I&N Dec. 408, 413 (BIA 1998), the Board of Immigration Appeals (BIA) stated that it considered making false statements under oath during the naturalization process to be an extremely serious adverse factor because of the government’s interest in maintaining the integrity of that process.
 

Chapter 3 - Effect of Granting a Waiver

A. Validity of an Approved Waiver

If the waiver [1] is granted, then, except for K-1 and K-2 nonimmigrants and conditional permanent residents, [2] 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]
For conditional permanent residents, [4] 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]
A waiver applies only to the specific grounds of inadmissibility and related crimes, events or incidents specified in the waiver application. [6] 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] 

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] The waiver becomes permanent once the K-1 marries the petitioner, as discussed in the section on validity of an approved waiver. [9]
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]

C. Inadmissibility Based on Documentary Requirements [11]

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] and failure to comply with documentary requirements. [13] The applicant then applies for a waiver of inadmissibility for willful misrepresentation. [14] 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.

Footnotes

1.
See INA 212(i).
 
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)].
 
4.
Foreign nationals lawfully admitted for permanent residence on a conditional basis. See INA 216.
 
9.
See Section A, Validity of an Approved Waiver [9 USCIS-PM G.3(A)].
 
11.
 
12.
 
13.
See INA 212(a)(7)(B)(i) (for example, for not possessing a valid nonimmigrant visa).
 
14.
See INA 212(i).
 

Appendices

Updates

POLICY ALERT –Waiver Policies and Procedures

August 23, 2017
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance to address the general policies and procedures applicable to the adjudication of waivers of inadmissibility.

POLICY ALERT –Determining Extreme Hardship

October 21, 2016
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance on determinations of extreme hardship to qualifying relatives as required by certain statutory waiver provisions. This guidance becomes effective December 5, 2016.

POLICY ALERT –Fraud and Willful Misrepresentation Grounds of Inadmissibility

March 25, 2014
U.S. Citizenship and Immigration Services (USCIS) is issuing guidance on the fraud and willful misrepresentation grounds of inadmissibility under INA 212(a)(6)(C)(i) and the corresponding waiver under INA 212(i).

POLICY ALERT –Health-Related Grounds of Inadmissibility and Waivers

January 28, 2014
U.S. Citizenship and Immigration Services (USCIS) is issuing guidance in the USCIS Policy Manual on the health-related grounds of inadmissibility under INA 212(a)(1) and corresponding waivers under INA 212(g).

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