9 USCIS-PM O.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]

T Nonimmigrants: Common Grounds of Inadmissibility and Corresponding Waivers
Inadmissibility Ground	Waiver Available?	Legal Authority and Standard
Health-related (INA 212(a)(1))	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))
Unlawful presence bars (INA 212(a)(9)(A) and INA 212(a)(9)(C)(i)(II))Illegal entrants and immigration violators (INA 212(a)(6))Documentation requirements (INA 212(a)(7))	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))
Criminal grounds (INA 212(a)(2))	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))
Terrorist activities (INA 212(a)(3)(B))Terrorist organization membership (INA 212(a)(3)(F))	Yes	General balancing of positive and negative discretionary factors (INA 212(d)(3)(A)(ii))
Other security-related unlawful activity (INA 212(a)(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].