SIJ Inadmissibility and Waivers

How does inadmissibility work in an SIJ adjustment case?

See Special Immigrant Juvenile Adjustment Under INA §245(h).

Three categories of SIJ inadmissibility issues

Which inadmissibility grounds do not apply to SIJ adjustment?

INA §245(h)(2)(A) expressly makes the following provisions inapplicable when determining admissibility for SIJ adjustment:

• INA §212(a)(4) — public charge;
• INA §212(a)(5)(A) — labor certification;
• INA §212(a)(6)(A) — presence without admission or parole;
• INA §212(a)(6)(C) — fraud, willful misrepresentation, and false claims to U.S. citizenship;
• INA §212(a)(6)(D) — stowaways;
• INA §212(a)(7)(A) — immigrant documentation requirements; and
• INA §212(a)(9)(B) — the three- and ten-year unlawful-presence bars.

Entry without inspection does not create INA §212(a)(6)(A) inadmissibility for SIJ adjustment

Many SIJ applicants entered the United States without inspection.

Two separate provisions address that history:

• INA §245(h)(1) deems the SIJ applicant paroled for purposes of satisfying INA §245(a); and
• INA §245(h)(2)(A) makes INA §212(a)(6)(A) inapplicable to the SIJ adjustment determination.

Thus, the applicant's actual entry without inspection should be reported accurately, but it does not create the ordinary adjustment obstacle that it would create in many other cases.

See SIJ Deemed Parole for Adjustment.

Fraud and willful misrepresentation under INA §212(a)(6)(C) do not apply

INA §245(h)(2)(A) makes the entire INA §212(a)(6)(C) paragraph inapplicable to SIJ adjustment.

This can include an otherwise qualifying issue involving:

• Fraud in seeking an immigration benefit;
• Willful material misrepresentation;
• Use of false information to obtain a visa or admission; or
• A false claim to U.S. citizenship falling within INA §212(a)(6)(C).

Other conduct connected to the same facts may still raise a different criminal, security, or discretionary issue.

False claims to U.S. citizenship receive unusual SIJ treatment

In many ordinary adjustment cases, a false claim to U.S. citizenship under INA §212(a)(6)(C)(ii) is exceptionally serious and often has no generally available waiver.

For SIJ adjustment, however, INA §245(h)(2)(A) makes paragraph §212(a)(6)(C) inapplicable.

The analysis should still verify:

• Whether the alleged conduct actually constitutes a false citizenship claim;
• Whether another inadmissibility ground arises from the same conduct;
• Whether criminal conduct is involved; and
• Whether the facts should be addressed as a matter of adjustment discretion.

Public charge does not apply

INA §212(a)(4) is expressly excluded from the SIJ adjustment admissibility determination.

An SIJ applicant therefore does not have to overcome the ordinary public-charge ground merely because the applicant:

• Has limited income;
• Has no traditional financial sponsor;
• Has received public benefits;
• Has been dependent on foster care or public assistance; or
• Has limited employment history.

The humanitarian circumstances giving rise to SIJ classification are consistent with Congress's decision to remove this ground.

The unlawful-presence bars do not apply

INA §245(h)(2)(A) makes INA §212(a)(9)(B) inapplicable to SIJ adjustment.

Therefore, an SIJ applicant does not need an ordinary unlawful-presence waiver under §212(a)(9)(B) in order to adjust through the SIJ framework.

Which grounds can USCIS waive under INA §245(h)?

For inadmissibility provisions that still apply and are not among the statutory exclusions from waiver, USCIS may grant a waiver under INA §245(h)(2)(B).

The statutory purposes are:

• Humanitarian purposes;
• Family unity; or
• When granting the waiver is otherwise in the public interest.

This is a broad humanitarian waiver standard specifically designed for SIJ adjustment applicants.

No qualifying relative is required for the SIJ waiver

Unlike many ordinary INA §212 waivers, the SIJ waiver under INA §245(h) does not require the applicant to establish a particular U.S. citizen or lawful permanent resident qualifying relative.

The application therefore does not depend on proving that the applicant has:

• A U.S. citizen spouse;
• A lawful permanent resident spouse;
• A U.S. citizen parent; or
• A lawful permanent resident parent.

No ordinary extreme-hardship showing is required

USCIS's current Form I-601 instructions expressly recognize that an SIJ requesting a waiver under INA §245(h) does not need to prove extreme hardship.

The applicant instead should establish why waiver approval is justified under the SIJ statutory standards.

Evidence may address:

• The applicant's history of abuse, neglect, abandonment, or similar maltreatment;
• Age at the time of relevant conduct;
• Trauma and vulnerability;
• Family and caregiving relationships;
• Rehabilitation;
• Education;
• Employment;
• Community ties;
• Medical or psychological needs;
• Humanitarian circumstances;
• Public-interest considerations; and
• Any connection between adverse conduct and the circumstances underlying SIJ protection.

The relationship with natural or prior adoptive parents is not a waiver factor

INA §245(h)(2)(B) contains an unusual instruction concerning SIJ parents.

The relationship between the SIJ applicant and the applicant's natural parents or prior adoptive parents is not to be considered as a factor in deciding the special SIJ waiver.

Form I-601 is generally used for an SIJ waiver

Where a ground applies and requires waiver under INA §245(h), USCIS directs the SIJ applicant to use Form I-601, Application for Waiver of Grounds of Inadmissibility.

A strong filing should identify:

• The exact INA §212(a) ground;
• Why the ground applies;
• Why it is waivable under INA §245(h);
• The humanitarian, family-unity, or public-interest basis for approval;
• Any mitigating facts;
• Evidence of rehabilitation where relevant; and
• Why favorable discretion is warranted.

Which grounds cannot be waived under INA §245(h)?

The special SIJ waiver authority excludes several serious criminal and security-related grounds.

INA §245(h)(2)(B) does not authorize waiver of:

• INA §212(a)(2)(A) — specified criminal grounds;
• INA §212(a)(2)(B) — multiple criminal convictions;
• INA §212(a)(2)(C) — controlled substance trafficking, subject to the statutory exception discussed below;
• INA §212(a)(3)(A) — certain security-related grounds;
• INA §212(a)(3)(B) — terrorist activities;
• INA §212(a)(3)(C) — serious adverse foreign-policy consequences; and
• INA §212(a)(3)(E) — participation in Nazi persecution, genocide, torture, or extrajudicial killing.

The marijuana exception

INA §245(h)(2)(B) contains a narrow exception within its criminal-ground restriction for the portion of INA §212(a)(2)(C) related to a single offense of simple possession of 30 grams or less of marijuana.

USCIS's current Form I-601 instructions also identify the limited marijuana exception when describing the criminal grounds excluded from the SIJ waiver.

This is a narrow statutory provision. The record should establish:

• The exact offense or conduct;
• The substance involved;
• The amount;
• Whether there was only one offense;
• Whether the conduct was simple possession rather than trafficking or distribution; and
• The complete criminal disposition.

Crimes involving moral turpitude require careful analysis

INA §212(a)(2)(A) is excluded from the special §245(h) waiver authority.

Before concluding that an SIJ applicant is inadmissible, however, the analysis should first determine whether §212(a)(2)(A) actually applies.

Questions may include:

• Whether there is an immigration-law conviction;
• Whether the offense is a crime involving moral turpitude;
• Whether the juvenile-delinquency treatment affects the immigration analysis;
• Whether the conduct falls within a statutory exception;
• Whether the petty-offense exception applies; and
• Whether another statutory rule prevents the ground from arising.

Juvenile delinquency is not automatically an immigration conviction

Many SIJ applicants have juvenile-court records.

A juvenile delinquency adjudication is generally analyzed differently from an adult criminal conviction for immigration purposes.

The record should distinguish:

• Juvenile delinquency adjudication;
• Adult criminal prosecution;
• Conduct-based inadmissibility provisions;
• Controlled-substance admissions;
• Reason-to-believe trafficking provisions; and
• Discretionary concerns.

A court record should be analyzed under immigration definitions rather than assumed to be either harmless or disqualifying based solely on the state-law label.

Controlled substance cases require exact classification

Controlled-substance issues can implicate several provisions of INA §212(a)(2).

The analysis should determine:

• Whether there was a conviction;
• Whether there was a legally sufficient admission;
• Whether the substance is federally controlled;
• Whether the conduct involved trafficking;
• Whether USCIS has reason to believe trafficking occurred;
• Whether the narrow marijuana provision applies; and
• Whether the ground falls outside the §245(h) waiver authority.

Because the special SIJ waiver has explicit criminal exclusions, controlled-substance cases require particularly careful review before Form I-485 filing.

Alien smuggling can potentially be waived under the SIJ standard

INA §212(a)(6)(E), alien smuggling, is not among the grounds made automatically inapplicable by §245(h)(2)(A).

But it also is not among the specific grounds excluded from the humanitarian waiver authority in §245(h)(2)(B).

Accordingly, where §212(a)(6)(E) applies, an SIJ applicant may potentially seek waiver under the special humanitarian, family-unity, or public-interest standard.

The application should still analyze whether the elements of alien smuggling are actually established before conceding inadmissibility.

Prior removal and unlawful reentry require separate analysis

INA §245(h)(2)(A) makes §212(a)(9)(B) inapplicable but does not broadly erase every provision in INA §212(a)(9).

Cases involving:

• Prior expedited removal;
• Prior removal orders;
• Departure under an order;
• Reentry after removal;
• Unlawful reentry after accumulating unlawful presence; or
• INA §212(a)(9)(C)

require identification of the precise statutory ground.

If a remaining §212(a)(9) ground applies and is not among the exclusions in §245(h)(2)(B), the applicant may potentially invoke the SIJ waiver authority, subject to the exact statutory facts and any separate procedural limitations.

Security and terrorism grounds are different

The SIJ waiver authority does not extend to several security provisions, including INA §212(a)(3)(A), (B), (C), and (E).

These grounds should not be treated as ordinary humanitarian-waiver cases.

Where the record contains an allegation involving:

• Terrorist activity;
• Material support;
• Membership or association;
• Espionage or unlawful activity;
• Foreign-policy consequences; or
• Genocide, torture, or extrajudicial killing,

the precise statutory basis and any independently applicable exception or exemption must be examined before filing.

Waiver eligibility and adjustment discretion are separate

Even when USCIS grants the necessary inadmissibility waiver, Form I-485 remains discretionary.

The applicant should therefore address both:

• Why the inadmissibility ground should be waived under INA §245(h); and
• Why USCIS should favorably exercise adjustment discretion after considering the entire record.

Evidence supporting a humanitarian SIJ waiver

The strongest evidence depends on the particular ground and the applicant's life circumstances.

Potential evidence includes:

• Applicant declaration;
• Juvenile-court findings;
• Child welfare or social-services records;
• Psychological evaluations;
• Medical records;
• School records;
• Letters from teachers, counselors, employers, mentors, or community members;
• Evidence of rehabilitation;
• Certified criminal dispositions;
• Evidence explaining the applicant's age and circumstances at the time of misconduct;
• Evidence of family unity;
• Community service;
• Employment history;
• Evidence of future plans; and
• Other evidence showing humanitarian or public-interest reasons for approval.

Example: prior immigration misrepresentation

Example: a waivable ground

Example: criminal ground excluded from the SIJ waiver

SIJ inadmissibility checklist

• Identify the exact INA §212(a) subsection.
• Determine whether §245(h)(2)(A) makes the ground inapplicable.
• If the ground still applies, determine whether §245(h)(2)(B) permits waiver.
• Check whether a criminal or security exclusion applies.
• Analyze all statutory exceptions to the alleged ground.
• Obtain complete criminal and immigration records.
• File Form I-601 when the SIJ waiver is required.
• Use humanitarian, family-unity, and public-interest evidence.
• Do not impose an extreme-hardship or qualifying-relative requirement that §245(h) does not contain.
• Do not rely on the relationship to natural or prior adoptive parents as a waiver factor.
• Address adjustment discretion separately.
• Maintain accurate disclosure throughout Form I-485 adjudication.

Common SIJ waiver mistakes

Primary authorities

Related INA245.com guides

Frequently asked questions