Chapter 2 - Waivers for Victims of Trafficking
A. Inadmissibility
Victims of a severe form of trafficking in persons applying for T nonimmigrant status[1] must demonstrate that they are admissible to the United States.[2] This is also true for applicants for derivative T nonimmigrant status.[3]
Applicants for T nonimmigrant status are not subject to the public charge ground of inadmissibility.[4]
If an applicant is subject to one or more grounds of inadmissibility, the applicant may apply for a discretionary waiver of the ground(s) by filing an Application for Advance Permission to Enter as a Nonimmigrant (Form I-192).[5] If the applicable standard is met and a favorable exercise of discretion is warranted, USCIS may waive all inadmissibility grounds for applicants for T nonimmigrant status under either INA 212(d)(3)(A)(ii)or INA 212(d)(13), except:
- Espionage or sabotage - INA 212(a)(3)(A)(i)(I);
- Any other security-related unlawful activity - INA 212(a)(3)(A)(ii);
- Overthrow of the U.S. government - INA 212(a)(3)(A)(iii);
- Adverse foreign policy impact - INA 212(a)(3)(C); and
- Participants in Nazi persecution or genocide - INA 212(a)(3)(E)(i)-(ii).[6]
B. Waivers
1. Waiver Authority
For T nonimmigrant applicants, waivers are available under two sections of the Immigration and Nationality Act (INA):
- INA 212(d)(13), which provides USCIS with discretion to waive grounds of inadmissibility specific to T nonimmigrant status applications; and
- INA 212(d)(3)(A)(ii), which provides USCIS discretion to waive certain grounds of inadmissibility for nonimmigrants based on a general balancing of positive and negative discretionary factors.
The table below outlines common grounds of inadmissibility USCIS encounters for which a waiver is requested under these two legal authorities. If an applicant meets the requirements of the legal standard, the officer must also determine whether to approve the waiver as a matter of discretion.[7]
| Inadmissibility Ground | Waiver Available? | Legal Authority and Standard |
|---|---|---|
| Yes | In the national interest (INA 212(d)(13)(B)(i)) General balancing of positive and negative discretionary factors (INA 212(d)(3)(A)(ii)) |
| Yes | In the national interest and connection to victimization (INA 212(d)(13)(B)(ii)) General balancing of positive and negative discretionary factors (INA 212(d)(3)(A)(ii)) |
| Yes | In the national interest and connection to victimization (INA 212(d)(13)(B)(ii)) General balancing of positive and negative discretionary factors (INA 212(d)(3)(A)(ii)) |
| Yes | General balancing of positive and negative discretionary factors (INA 212(d)(3)(A)(ii)) |
| No | Grounds of inadmissibility (INA 212(a)) |
Footnotes
[^ 1] For more information about T nonimmigrant status, see Volume 3, Humanitarian Protection and Parole, Part B, Victims of Trafficking [3 USCIS-PM B].
[^ 2] See INA 212(a). See 8 CFR 214.1(a)(3)(i).
[^ 3] See 8 CFR 214.211(a).
[^ 4] See INA 212(d)(13)(A). See 8 CFR 212.16(b).
[^ 5] See INA 212(d)(13)(B). See 8 CFR 212.16.
[^ 6] See INA 212(d)(13)(B) and INA 212(d)(3)(A)(ii).
[^ 7] See Part A, Waiver Policies and Procedures, Chapter 5, Discretion [9 USCIS-PM A.5].