Many criminal grounds of inadmissibility may be waived for T visa applicants under INA § 212(d)(13), including grounds involving crimes of moral turpitude, prostitution, and those related to controlled substances. For grounds other than health-related grounds, the applicant must show that the conduct was caused by or incident to the trafficking. USCIS must also find that the waiver serves the national interest, and approval remains discretionary.
At Shankar & Associates PC, T visa immigration lawyer Rajat Shankar guides trafficking survivors through T visa and waiver filings when a criminal record may affect eligibility. Our NY immigration attorney represents clients in Plainview, across Nassau County, and throughout Long Island.
This guide explains which grounds may be waived, which grounds cannot be waived, and how the request is filed with your T visa application. It also discusses what evidence supports approval, how long USCIS takes, and what happens if a waiver is denied. Call Shankar & Associates PC at (212) 461-1467.
What Is INA § 212(d)(13) and Who Can Use It?
INA § 212(d)(13) is a provision of the Immigration and Nationality Act that gives USCIS discretion to waive many grounds of inadmissibility for applicants seeking T nonimmigrant status.
The T visa is for people who were subjected to a severe form of human trafficking and meet the other eligibility rules. Unless an age-based exemption or trauma exception applies, a principal applicant must contact a law enforcement agency with jurisdiction to report the trafficking and comply with any reasonable request for assistance. Applicants who were under 18 when at least one act of trafficking occurred are exempt from the cooperation requirement. Those unable to cooperate because of physical or psychological trauma may qualify for the trauma exception. A waiver may also be needed when trafficking-related conduct creates a ground of inadmissibility.
Unlike INA § 212(h), which covers a narrower set of criminal grounds and has separate eligibility rules, § 212(d)(13) is available specifically to T visa applicants. USCIS must determine that granting a waiver is in the national interest for all waivable grounds. For non-health grounds, the applicant must also demonstrate that the conduct or activity was caused by or incident to the trafficking victimization.
A T visa applicant may also request the nonimmigrant waiver under INA § 212(d)(3)(A)(ii) when that authority is available for the ground at issue. The two waiver authorities use different legal standards, so the filing should identify and support the authority being requested.
Attorney Rajat Shankar can review the possible inadmissibility issue, assess which waiver route may apply, and explain what supporting evidence may be needed.
Which Criminal Grounds of Inadmissibility Can Be Waived?
Section 212(d)(13) can cover several criminal grounds under INA § 212(a)(2). Each request must still satisfy the national interest and trafficking connection requirements and support a favorable exercise of discretion.
Crimes Involving Moral Turpitude
Crimes involving moral turpitude, or CIMTs, are offenses classified under immigration law. The category may include fraud, theft committed with the required intent, and some assault offenses. Not every theft or assault offense is a CIMT, and statutory exceptions may prevent a CIMT from causing inadmissibility. The result depends on the statute of conviction and controlling immigration law.
Prostitution and Commercialized Vice Offenses
INA § 212(a)(2)(D) covers certain conduct involving prostitution or commercialized vice. In a T visa case, the evidence should explain how the conduct was caused by or incident to the trafficking.
Controlled Substance Violations
A conviction or legally sufficient admission involving a controlled substance may create inadmissibility under INA § 212(a)(2)(A)(i)(II). The effect of the offense depends on the law involved, the record, and the controlled substance.
Drug Trafficking Ground
INA § 212(a)(2)(C) creates a separate drug trafficking ground that does not require a conviction. It may apply when the government knows or has reason to believe that the applicant was an illicit trafficker or knowingly aided, assisted, conspired, or colluded in illicit trafficking.
Multiple Criminal Convictions
INA § 212(a)(2)(B) may make an applicant inadmissible based on two or more convictions, other than purely political offenses, when the aggregate sentences to confinement total five years or more. The rule applies even if the convictions arose from one trial or one scheme of misconduct, regardless of whether the offenses involved moral turpitude.
Key Takeaway: The first step is to determine whether inadmissibility arises from a conviction, an admission, or conduct alone. Records that appear similar can lead to different immigration results.
When a New York criminal record or alleged conduct may affect a T visa case, Attorney Rajat Shankar can review the relevant law and available records to assess possible inadmissibility and waiver options.
Which Grounds Cannot Be Waived Under § 212(d)(13)?
Although § 212(d)(13) can waive many grounds of inadmissibility, it cannot waive the following three categories:
- Security and related grounds (INA § 212(a)(3))
- International child abduction (INA § 212(a)(10)(C))
- Renouncing U.S. citizenship to avoid taxation (INA § 212(a)(10)(E))
Drug trafficking and a criminal inadmissibility ground arising from a murder conviction are not among the three categorical exclusions. USCIS may waive those criminal grounds, but it cannot waive a separate excluded ground arising from the same conduct.
For violent or dangerous crimes, USCIS will exercise favorable discretion only in extraordinary circumstances unless the criminal activity was caused by or incident to the trafficking.
Key Takeaway: The three categorical exclusions limit USCIS’s legal authority to grant a waiver. The rule for violent or dangerous crimes instead limits when USCIS will exercise favorable discretion.
T Visa Immigration Attorney in New York: Shankar & Associates PC
Rajat Shankar, Esq.
Rajat “Raj” Shankar is a New York immigration attorney whose commitment to his practice is rooted in personal experience. He came to the United States at eight years old, later obtained his green card, and eventually became a U.S. citizen. His experience with the immigration system gives him insight into the questions and concerns individuals and families may face. Raj earned his J.D. magna cum laude from Touro College Jacob D. Fuchsberg Law Center in 2012 and a B.A. in Mathematics from East Stroudsburg University in 2008.
Admitted to the New York Bar in 2013, Raj has handled cancellation of removal, asylum, deportation defense, employment-based immigration, and other immigration matters. He also served as Assistant Director of Academic Development at the Touro Law Center from 2019 to 2021. Based in Plainview, Raj works with clients throughout Nassau County, Long Island, and other parts of New York.
How Do You Apply for a Waiver With Your T Visa Application in New York?
Applicants who need an inadmissibility waiver file Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, with Form I-914, Application for T Nonimmigrant Status. USCIS considers the waiver request as part of the Form I-914 case.
The applicant bears the burden of proving waiver eligibility. Form I-192 must identify each ground of inadmissibility and include evidence meeting the applicable legal standard. For grounds other than health-related grounds, the evidence must show that the conduct was caused by or incident to the trafficking. The filing must also support a favorable exercise of discretion.
Applicants should use the filing address listed in the current Form I-914 instructions. USCIS may process service center cases at different locations, so applicants should track the case using the receipt number and any transfer notices. Information in Form I-914, Form I-192, and the supporting documents should be consistent.
When a T nonimmigrant later applies for adjustment of status under INA § 245(l), USCIS reviews admissibility again. A prior waiver remains limited to the grounds and underlying events identified in the approved request. If a different ground or new event creates inadmissibility, the applicant may need to file Form I-601.
Attorney Rajat Shankar can assess which forms may be required and help prepare Form I-914, Form I-192, and the supporting documents as a coordinated filing for T visa applicants across Long Island.
What Evidence Shows the Waiver Should Be Granted?
Evidence should support the national interest finding and, for grounds other than health-related grounds, show that the conduct was caused by or incident to the trafficking. For criminal grounds, USCIS also considers the number and seriousness of the offenses and convictions.
The following records may help document these issues and other facts supporting favorable discretion:
| Type of Evidence | How It Can Support the Request |
|---|---|
| Personal statement | Explains the trafficking history and how the offense or conduct arose |
| Criminal court records | Shows the charge, statute, disposition, sentence, and other case details |
| Police or law enforcement records | Documents facts about the trafficking, criminal conduct, or law enforcement cooperation |
| Psychological or medical evaluations | Documents trauma and the effects of the trafficking |
| Affidavits from counselors, family members, or others | Supports or confirms relevant parts of the applicant’s account |
| Rehabilitation, employment, and community records | Documents positive factors supporting favorable discretion |
The supporting record should address unfavorable facts directly and explain how the evidence relates to the waiver standard. Attorney Rajat Shankar can help identify gaps or inconsistencies and organize the waiver request clearly.
How Long Does USCIS Take to Decide a T Visa Waiver in New York?
USCIS reviews Form I-192 as part of the Form I-914 case and does not publish a separate processing time for the T visa waiver.
Case processing times fluctuate over time depending on caseloads and service center processing. Applicants can check current wait times directly on the official USCIS Case Processing Times Page using the specific form type and office listed on their receipt notice.
Under policy updates effective August 28, 2024, the USCIS conducts an initial bona fide review for T visa applications. If USCIS finds the application bona fide, it may consider the applicant for deferred action and grant employment authorization if Form I-765 was submitted. A bona fide determination does not decide the waiver or guarantee final T visa approval.
What Happens If Your Waiver Request Is Denied?
A denial of a § 212(d)(13) waiver leaves the inadmissibility ground in place. USCIS cannot approve the T visa without an approved waiver or proof that the inadmissibility ground does not apply. There is no appeal from the Form I-192 waiver denial, but an applicant may submit a new waiver request in an appropriate case.
If USCIS also denies the underlying Form I-914, that decision may be appealed under 8 CFR § 103.3. The decision notice provides the applicable filing deadline and instructions.
Once the T visa denial becomes final, benefits tied to a bona fide determination are automatically revoked, and any stay of a final removal order based on the pending T visa application is lifted. If prior removal proceedings were terminated because the T visa application was pending, the DHS may file a new Notice to Appear.
If USCIS issues an adverse decision, Attorney Rajat Shankar can review the notice and case record to assess whether refiling the waiver request, appealing the Form I-914 denial, or another response may be available.
Speak With a Plainview T Visa Immigration Attorney
A criminal record connected to trafficking does not automatically prevent a person from receiving a T visa. INA § 212(d)(13) may provide a waiver when the applicant meets the legal standard and supports a favorable exercise of discretion.
Attorney Rajat Shankar handles T visa waiver requests and related USCIS filings for trafficking survivors. He can review possible inadmissibility grounds and help prepare evidence addressing the applicable waiver standard.
Call Shankar & Associates PC at (212) 461-1467 to schedule a consultation. Our office is located at 518 Plainview Rd, Plainview, NY 11803, and we serve clients across Nassau County and throughout Long Island.
FAQ
Can a T visa applicant with a felony conviction still qualify for a waiver?
A felony conviction does not create an automatic bar to a § 212(d)(13) waiver. The result depends on the inadmissibility ground, the trafficking connection, the national interest, and USCIS discretion. USCIS considers the number and seriousness of the offenses, and violent or dangerous crimes face stricter review.
Does § 212(d)(13) waive grounds related to false claims to citizenship?
Potentially. A false claim to U.S. citizenship under INA § 212(a)(6)(C)(ii) is not one of the three grounds excluded from § 212(d)(13). The applicant must establish the required trafficking connection and national interest finding.
Is there a fee for filing Form I-192 with a T visa application?
No. USCIS does not charge a filing fee for Form I-192 when it is submitted in connection with T nonimmigrant status. Applicants should still use the current form edition and filing instructions.
Can this waiver cover multiple criminal grounds at once?
Yes. A single Form I-192 can request a waiver of multiple grounds of inadmissibility. Each ground must be identified and supported, and USCIS reviews them together as part of the discretionary analysis.
Does the waiver apply to inadmissibility grounds unrelated to criminal history?
Section 212(d)(13) can also cover certain health-related, unlawful presence, and other noncriminal grounds. A health-related waiver requires a national interest finding. For any other waivable ground, the evidence must establish the required connection between the conduct and the trafficking.
Can criminal history lead USCIS to deny a T visa despite a waiver request?
It can. USCIS considers the number and seriousness of the offenses and the full record. Serious or repeated criminal conduct may weigh against favorable discretion, and an unresolved inadmissibility ground prevents approval of the T visa.
Do New York sealing or vacatur orders erase a conviction for immigration purposes?
Not always. Immigration law uses its own definition of a conviction. A New York sealing order may leave the conviction in place for immigration purposes. A vacatur based on a procedural or substantive defect may remove the conviction. A court order entered only for rehabilitation or to avoid immigration consequences may leave the conviction in place for immigration purposes.
Can derivative family members of a T visa applicant also request this waiver?
A derivative family member may request a waiver if they are inadmissible under a ground that can be waived. A separate Form I-192 must be submitted with the derivative application package.