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Can I Apply for a Waiver for a Non-Immigrant Visa?

Immigration and Business Law

Non-immigrant visas are temporary visas that allow applicants to visit, live or work in the U.S.. Some common examples are: H-1B Visa, TN Visa, E-2 Visa, B-1 Visa, B-2 Visa, L-1 Visa and E-3 visa.  One hurdle of obtaining any visa is that an applicant must not be found “inadmissible” under current law.  There are a number of reasons one can be found inadmissible and one example is a drug related conviction.  Inadmissibility is a tricky area and if you feel that you may be inadmissible for a particular offence you should seek the assistance of immigration counsel.

If you are inadmissible, the U.S. Government provides an opportunity in some cases to file a waiver to waive the inadmissibility grounds so that you can still get a visa and enter the United States.  For immigrant visas (green cards) there are some things that cannot ever be waived (e.g. a conviction for cocaine possession makes it impossible to get a green card unless the underlying charge was dealt with). For non-immigrant visas though, the law does not prohibit filing a waiver even for the most egregious crime (e.g. murder).  That being said, a waiver is a discretionary form of relief and waivers are very difficult to obtain for crimes that are considered particularly offensive.

What is a Waiver?

When someone is deemed inadmissible, the law prohibits them from entering the United States or obtaining a visa.  A waiver is a form of a relief that gives the applicant a “pass” on their inadmissibility factor.  In essence, it grants an exception to the applicant that allows them to obtain a visa and enter the United States.

What is the Standard for a Non-Immigrant Waiver?

In order to assess whether one is eligible for a non-immigrant waiver, the government will look at the following factors:

  1. The risk of harm to society if the applicant is admitted;
  2. The seriousness of the underlaying cause of the applicant’s inadmissibility. One is unlikely to ever get a waiver for a conviction of murder for example.  Many waivers filed are for overstaying visas, unauthorized work or non-violent crimes (e.g. Some drug related charges or misrepresentation).
  3. The nature of the applicant’s reason for wishing to enter the United States. For example, a good reason for wanting to enter the U.S. might be to visit close family members. This is particularly the case if the family members are ill. Business related reasons (in particular if the business benefits the U.S.) may be another good reason.

The Government will also look at the following:

  1. The nature of the offense;
  2. The circumstances which led to the offense;
  3. How recent the offense occurred – crimes committed within a 5-year period are tough to get waived.
  4. Whether it was an isolated incident, or part of a pattern of misconduct;
  5. Evidence of reformation or rehabilitation. This is a very important part of any waiver case and the rehabilitation should relate to the offense. For example, if you were convicted of drug possession, rehabilitation should include drug counseling and another drug intervention or assistance program.

The Government will look at both the favorable and unfavorable aspects related to these factors and make a determination of whether a waiver should be granted.  Waivers are discretionary and often applicants have to apply multiple times before a waiver will be granted.

How Do I Apply for a Waiver?

You can apply for a waiver at a U.S. Consulate abroad and usually the waiver documentation is submitted at the same time as your visa application. The waiver must be approved by the Government and can take a few months to obtain approval. Waivers are very complicated and you should seek the guidance of an immigration attorney before proceeding.

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