If an immigrant waiver applicant meets all other statutory and regulatory requirements of a waiver, the USCIS officer must determine whether to approve the waiver as a matter of discretion.
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 considered 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.
According to the USCIS Policy Manual up-to-date as of August 23, 2017, meeting the other statutory and regulatory requirements of an immigrant waiver alone does not entitle the applicant to relief. 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).
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. 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).
We consider the exercise of discretion by the adjudicating USCIS officer to be an essential part of any waiver approval that my office has obtained on behalf of our clients for the past 15 years. Consequently, I always make sure to include every favorable factor from our client’s lives and backgrounds, that in our experience, have proven significant and pivotal in the approval of immigrant (and non-immigrant waivers) for our clients.
The legal basis for the exercise of discretion in immigrant waiver applications commonly filed by my office is highlighted below:
- The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in 8 CFR 212.7(e) and warrant a favorable exercise of discretion.
- INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who:
- has a parent, spouse, son, or daughter who is a U.S. citizen or lawful permanent resident of the United States; and
- the parent, spouse, son, or daughter would suffer “extreme hardship” on account of the alien’s ineligibility to immigrate
- Waiver applicants must also show that their application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in his or her case.
- INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) authorizes the Secretary to waive the 3- and 10-year unlawful presence bars for individuals seeking admission to the United States as immigrants if they can show that the refusal of admission would result in extreme hardship to a qualifying U.S. citizen or LPR spouse or parent, and provided that the applicant warrants a favorable exercise of discretion. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).
The below details some of the discretionary factors relevant to the waiver adjudication as set for by the USCIS Policy Manual:
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. 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]).|
• 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 & 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.|
The officer must weigh the social and humanitarian considerations against the adverse factors present in the applicant’s case. 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). 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. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).
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.
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. 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.
In general, when reviewing an applicant’s employment history, an officer may consider the type, length, and stability of the employment. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996). See Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992).
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. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996).
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. See Diaz-Resendez v. INS, 960 F.2d 493 (5th Cir. 1992).
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. See Douglas v. INS, 28 F.3d 241 (2nd Cir. 1994).
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. 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). 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. See Matter of Monreal, 23 I&N Dec. 56 (BIA 2001).