Refugee or Asylee Eligibility for Waiver of Ground of Inadmissibility

Even if you fall into a ground of inadmissibility, a "waiver," or legal forgiveness may allow you to go forward with your asylum application.

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Certain people who are not U.S. citizens are barred from admission to the United States (or from adjusting their status — meaning obtaining a green card — while in the U.S.) if they have certain characteristics, which are known as “grounds of inadmissibility.”

Some but not all of these grounds of inadmissibility apply to refugees or asylees (people who have suffered, or fear, persecution of a certain type in their home country) at different times.

Refugees are subject to the relevant inadmissibility grounds both during their application for admission as refugees and during their application for adjustment of status. In contrast, asylees can get through their application of asylum without worrying about the grounds of inadmissibility -- but will nevertheless be subject to the same grounds of inadmissibility during their later application for adjustment of status.

The grounds of inadmissibility that are relevant for refugees and asylees come in addition to (though they may sometimes overlap with) other special bars that apply specifically to applicants for refugee or asylee status. (Bars that apply exclusively to such applicants have to do with their options for living and finding protection in third-countries — countries other than their home country or the United States.)

The law does not allow the U.S. government to “waive” (meaning to overlook or forgive) any of the special bars to refugee or asylee admissions. However, a special waiver may be available (to refugees and asylees alone) for some but not all of the other applicable grounds of inadmissibility. To be eligible for this kind of waiver, applicants must demonstrate that humanitarian reasons, or reasons of family unity or public interest, justify granting them the waiver. They would usually apply using Form I-602, Application by Refugee for Waiver of Grounds of Excludability (available on the I-602 page of the website of the U.S. Citizenship and Immigration Services).

This article describes what grounds of inadmissibility do not apply to refugees and asylees, which applicable grounds of inadmissibility cannot be waived, and on what specific conditions the available waivers can be obtained.

Grounds of Inadmissibility That Do Not Apply to Refugees or Asylees

Refugees and asylees are exempt from the following three grounds of inadmissibility:

  • Public charge: The U.S. government cannot deny admission or adjustment of status to refugees or asylees on the ground that they are likely to become dependent on need-based government assistance (often referred to as "welfare," though actually broader than this term implies).
  • Labor certification: This ground of inadmissibility, which has to do with protecting American jobs, does not apply to refugees or asylees, since they are coming to the U.S. mainly to obtain humanitarian protection — not mainly to find work.
  • Documentary requirements: The ordinary requirement that people who are seeking admission to the U.S. be in possession of a valid passport and a valid visa does not apply to refugees or asylees.

Grounds of Inadmissibility That Refugees or Asylees Can NOT Request Be Waived

Refugees and asylees who are subject to the following two sets of grounds of inadmissibility can never obtain a waiver and will therefore never be allowed to obtain admission to the U.S. or a green card:

  • Controlled substance traffickers: Almost anyone whom the U.S. government has reason to believe ever participated or even tried to participate in the traffic of illegal drugs (meaning drug dealers and their helpers or associates) is inadmissible to the United States. Moreover, the spouse and children of such a person would also be inadmissible if they knowingly benefited (or should have known they were benefiting) from the traffic within the five years preceding their application for admission or adjustment of status.
  • Security and related grounds: Anyone whom the U.S. government has reasonable grounds upon which to believe that the person intends to engage in certain illegal activity in the U.S. is inadmissible. This includes spies and people who intend to foster violent attacks against the U.S. government. It is also currently presumed to include people whom the U.S. government believes have endorsed terrorism or supported any terrorist organization (as well as their spouse and children in some circumstances). In addition, persons whose admission to the U.S. would be bad for U.S. foreign policy interests are inadmissible, unless the person is a foreign official. And, finally, persons who participated in Nazi persecution, or have participated in the torture or extrajudicial killing of anyone outside the U.S., are inadmissible. (This more or less overlaps with the special bars to refugee and asylee admissions discussed in the introduction to this article.) Beyond that, other security-related grounds (including membership in a totalitarian party, remote “association” with a terrorist organization, and recruitment or use of child soldiers) may be waived.

Grounds of Inadmissibility That Refugees or Asylees CAN Request Be Waived

Refugees and asylees most commonly face inadmissibility problems in relation to their criminal history. Inadmissibility on health grounds (including tuberculosis and mental disorders) is still relevant, but has become less common (because a vaccine, treatment, cure or other protective measure is often available for the relevant public health conditions).

In addition, asylees, in particular, often face inadmissibility for having committed fraud (including for having obtained a fake marriage). Fraud can become especially problematic when it reflects negatively on the credibility of an applicant.

Refugees and asylees who are subject to these or any ground of inadmissibility other than those discussed in the previous sections may be eligible for a waiver. To be eligible for such a waiver, an applicant must demonstrate to the U.S. government that the waiver is justified on humanitarian, family unity, or other public interest grounds.

The terms “humanitarian,” “family unity,” and “public interest” are not well defined in the law. However, “humanitarian” is usually understood to refer to an applicant’s extraordinary need for protection (either physical or moral). “Family unity” usually refers to the need to keep together immediate relatives (including married couples, their parents, and their children under 21). And “public interest” usually refers to some benefit to the United States (for example, in terms of national security or even economic advantage).

Even when “humanitarian,” “family unity,” or “public interest” reasons are established, one should keep in mind that Form I-602 waivers are discretionary, which means that government officers have a lot of freedom to grant or deny them based on their own best judgment and general considerations. (As a rule, waivers tend to be decided based on a balance of positive and negative factors.)

Fortunately, however, since refugee or asylee status (specifically, the experience or fear of persecution on certain grounds) is always considered to be a very “positive” factor (for purposes of gaining U.S. immigration benefits), then only very negative factors could justify a denial. In some respects, refugees and asylees are more likely to obtain a waiver of grounds of inadmissibility than other noncitizens seeking admission to, or adjustment of status in, the United States.

At the same time, grounds of inadmissibility are likely to apply in particularly tough cases. For example, in the case of a person who has committed a violent or dangerous crime, a waiver will probably not be granted unless an extraordinary public interest of the U.S. (in national security or foreign policy) intervenes. In such a case, humanitarian or family unity interests might be deemed more important only if they amount to “exceptional and extremely unusual hardship” — though even this might be insufficient.

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