Chapter 3 - INA 212(d)(13) Waivers

A. Waiver Eligibility

Because the waiver authority in INA 212(d)(13) was specifically created for T nonimmigrant applicants, USCIS first considers whether an applicant is eligible for a waiver under this section.^[1]

In adjudicating INA 212(d)(13) waiver requests, there are two possible legal standards for an officer to consider, depending on which ground of inadmissibility applies:

• Health-related grounds of inadmissibility under INA 212(a)(1); or
• All other grounds of inadmissibility.

If the applicant is inadmissible based on health-related grounds, USCIS considers whether it is in the national interest to exercise its discretion to waive this ground of inadmissibility.^[2]

For all other grounds of inadmissibility that are waivable under INA 212(d)(13), USCIS considers both the national interest and whether the activities rendering the applicant inadmissible were caused by, or were incident to, the victimization suffered due to being a victim of trafficking.^[3]

USCIS cannot grant a waiver under INA 212(d)(13) for grounds other than health-related grounds unless the applicant establishes that the activities rendering the applicant inadmissible were caused by, or were incident to, the victimization.^[4]

B. Discretionary Analysis

If the officer determines that the applicant has met the legal standard for a waiver under INA 212(d)(13), the officer must still determine whether the waiver should be granted as a matter of discretion.^[5] The applicant bears the burden of demonstrating that USCIS should favorably exercise discretion.^[6]

The INA provides that in the case of T nonimmigrants, if the Secretary of Homeland Security “considers it to be in the national interest to do so,” the Secretary may waive the application of certain grounds of inadmissibility.^[7] Neither Congress nor legacy Immigration and Naturalization Service defined the term “national interest” in either the Immigration and Nationality Act (INA) or the regulations in order to leave the application of this test as flexible and broad as possible.

Factors officers may consider in determining whether a waiver is in the national interest include, but are not limited to:

• Details of the applicant’s victimization;
• Level of victim’s cooperation with law enforcement;
• Contributions to public safety by strengthening the ability of law enforcement to investigate and prosecute criminal activity;
• Contributions to the community;
• Family unity; and
• Risk of harm if returned to home country.

The officer must weigh the social and humanitarian considerations against the adverse factors present in the applicant’s case.^[8] 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.^[9]

In cases involving violent or dangerous crimes, USCIS only exercises favorable discretion in extraordinary circumstances, unless the criminal activities were caused by, or were incident to, the victimization that the applicant suffered as a result of being trafficked.^[10]

C. Ineligible for INA 212(d)(13) Waiver

If an officer determines that the applicant is not eligible for a waiver under INA 212(d)(13), the officer must consider whether the applicant meets the legal standard and warrants a favorable exercise of discretion under the INA 212(d)(3)(A)(ii) nonimmigrant waiver.

Footnotes

[^ 1] See INA 212(d)(13)(B) (providing waiver authority specific to T nonimmigrants in addition to any other waivers that may be available).

[^ 2] See INA 212(d)(13)(B). See 8 CFR 212.16(b)(1).

[^ 3] See INA 212(d)(13)(B). See 8 CFR 212.16(b)(2).

[^ 4] See INA 212(d)(13)(B). See 8 CFR 212.16(b)(2).

[^ 5] See INA 212(d)(13)(B) (indicating that INA 212(d)(13) waivers are only granted as a matter of discretion).

[^ 6] See Matter of De Lucia (PDF), 11 I&N Dec. 565 (BIA 1966). See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957).

[^ 7] See INA 212(d)(13)(B).

[^ 8] See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296 (BIA 1996).

[^ 9] For a non-exhaustive list of relevant factors to consider in the discretionary analysis, see Part A, Waiver Policies and Procedures, Chapter 5, Discretion, Section A, Discretionary Factors [9 USCIS-PM A.5(A)]. See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296 (BIA 1996) (relating to a criminal waiver under INA 212(h)(1)(B)). See Matter of Marin (PDF), 16 I&N Dec. 581 (BIA 1978) (relating to an INA 212(c) waiver). See Matter of Tijam (PDF), 22 I&N Dec. 408 (BIA 1998) (relating to a fraud or misrepresentation finding (INA 212(a)(6)(C)(i)) and the discretionary waiver under former INA 241(a)(1)(H) (renumbered as INA 237(a)(1)(H) by IIRIRA)).

[^ 10] See 8 CFR 212.16(b)(3).