What happens after I submit a waiver request at my E-2 visa interview?

Someone who is applying for an E-2 visa is considered to be inadmissible and is therefore barred from entering the U.S. if they violated U.S. immigration law. Fortunately, as described in our earlier post here, there is an option to apply for a waiver that, if approved, would allow the individual to apply for the visa.

You might need to request a waiver if you are applying for an E-2 visa and you were found to be inadmissible due to one of a number of reasons, including a medical disease or condition, criminal history, a misrepresentation to the U.S. government, or other violations of U.S. immigration law. This is not a complete list, and you can learn more about the variety of scenarios in which a waiver might be necessary here.

For more information on what makes a strong waiver request, see our earlier posts (including here and here). In general, it is important to provide a well-written and compelling waiver request that addresses, at a minimum, the following factors:

• How recently the conduct or activity that caused the inadmissibility occurred, and how serious it was;
• Whether the conduct or activity was a single, isolated incident or a pattern of misconduct;
• Whether you have learned from the conduct and can demonstrate that you have been rehabilitated or reformed;
• Why you are seeking to travel to the U.S., and how important your reason is; and
• Whether there are any positive or negative consequences to the U.S. public interest that may result from you traveling to the U.S., including any risk of harm. Note that, among other things, E-2 visa applicants might point to employment opportunities they have created or will create for U.S. workers.

For more information on the criteria that the government may consider, see our earlier post here. A qualified immigration lawyer can offer critical assistance at crafting an effective waiver request.

Yes, oftentimes the U.S. consulate where you submitted your E-2 visa application will allow you to submit the waiver request at the time of your interview. However, it is always important to check the rules and requirements of the specific consulate where you are applying, since each consulate is able to create its own requirements.

Once you have submitted your waiver request to the consular officer, the consular officer will decide whether or not to recommend that the U.S. Department of Homeland Security (DHS) grant the waiver. The consular officer is given discretion over whether to make this recommendation pursuant to Section 212(d)(3)(A) of the Immigration and Nationality Act (or “INA”). That being said, it may be helpful to remind the officer (for example, in the written request) that their organizational directive (the Foreign Affairs Manual, or “FAM”) encourages them to “not hesitate” to recommend the waiver “when the applicant is entitled to seek waiver relief and is otherwise qualified for a visa, and when the granting of a waiver is not contrary to U.S. interests.” (See 9 FAM 305.4-3(A)).

Once the waiver recommendation arrives at DHS, the agency has authority to grant or deny it under INA section 212(a). The decision is made by the U.S. Customs and Border Protection (CBP) Admissibility Review Office (ARO).

Whether the ARO grants or denies your waiver request will typically be communicated to you by the consulate, which will also usually provide information about available next steps at that time. If the request is denied, re-submitting the application with additional evidence and information about how you qualify for the visa and warrant a waiver is oftentimes the recommended next step.