Waiving Inadmissibility for Nonimmigrants
July 20, 2011
An alien may be barred from reentering the U.S. if he or she had been unlawfully present, committed a misrepresentation on a visa application, or has a criminal conviction.
One way to overcome these and other grounds of inadmissibility is the general waiver found under section 212(d)(3) of the Immigration and Nationality Act.
This type of waiver is available to nonimmigrants or those seeking to enter the U.S. for a temporary period. Examples are visitors for business or pleasure, students, H-1B workers and other temporary workers.
Unlike most waivers for immigrant visa applications, the 212(d)(3) waiver may be used for many inadmissibility grounds, including health reasons, drug offenses, public charge grounds, immigration violations, and even certain types of involvement in terrorist activities.
This waiver is not available to those who are inadmissible due to terrorism or national security-related grounds or foreign policy grounds. It may also be denied to K-visa applicants who are ineligible for an immigrant visa waiver, and those who are not qualified for admission under the category applied for. For example, an applicant for a visitor (B1/B2) visa may not use this waiver to overcome a negative finding of immigrant intent.
An application for this waiver may be made at a U.S. consulate at the same time that the visa application is submitted. If applied for at the consulate, there is no separate fee for the waiver. The consular officer reviews the waiver application and forwards it to the Admissibility Review Officer of the Customs and Border Protection (CBP) if the waiver is granted. In case of a denial by the ARO, the applicant may request an advisory opinion from the Department of State.
An alien may also apply for the waiver at the port of entry by presenting the CBP officer with a Form I-192 (Application for Advance Permission to Enter as Nonimmigrant) and the filing fee.
Consular officers have wide discretion when recommending the grant of this type of waiver. The criteria to be followed were laid down in the leading case of Matter of Hranka, decided by the Board of Immigration Appeals in 1978. Under the Hranka standard, three factors must be balanced: the risk of harm in admitting the applicant, the seriousness of the acts that caused the inadmissibility, and the importance of the applicant’s reason for seeking entry.
The Foreign Affairs Manual instructs consular officers to consider the following factors, which mirror those in Hranka: the recency and seriousness of the activity or condition causing the ineligibility, the reasons for the proposed travel to the United States, and the positive or negative effect, if any, of the planned travel on the public interests of the United States.
Consular officers are reminded in the FAM that they may recommend waivers for any legitimate purpose such as family visit, medical treatment, business conferences, tourism and other purposes. The applicant need not have a qualifying family relationship nor show humanitarian or exceptional circumstances.
The 212(d)(3) waiver, while it could be the broadest type of waiver available, remains discretionary. Aliens interested in applying for this waiver in conjunction with their nonimmigrant visa application must ensure that their waiver packet meets the standard of eligibility.