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] However, there is no waiver available if an applicant is inadmissible under INA 212(a)(3)(C) (adverse foreign policy impact) or INA 212(a)(3)(E) (participants in Nazi persecution or genocide).[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 which grounds of inadmissibility USCIS can waive 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)) |
|
Yes |
In the national interest and connection to victimization (INA 212(d)(13)(B)(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 214.11(k)(1)(iv).
[^ 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)(A). See INA 212(d)(3)(A)(ii).
[^ 7] See Part A, Waiver Policies and Procedures, Chapter 5, Discretion [9 USCIS-PM A.5].