Waivers - Visa

United States Immigration Laws recognize two types of Noncitizens attempting to enter the United States. Noncitizen Immigrants seek to enter to live and work permanently in the United States while Noncitizen Nonimmigrants seek to enter the United States to visit, work, study or conduct business on a temporary basis. All Noncitizens whether Immigrants or Nonimmigrants in attempting to secure approval of a visa and/or attempting entry into the United States have the burden to prove that they are not Inadmissible from entering the United States. A Noncitizen is considered to be Inadmissible and therefore barred from entering the United States if the noncitizen committed an act that violates Immigration Law. Further discussion about inadmissibility issues can be read by clicking here.

Fortunately, Immigration Law allows Nonimmigrants to apply for a waiver that waives many grounds of Inadmissibility which if approved will allow the Nonimmigrant to apply for a visa to enter the United States. This waiver is authorized under section 212(d)(3) of the Immigration and Nationality Act. However, keep in mind that although many grounds of Inadmissibility may be waived/forgiven by this waiver, certain grounds of Inadmissibility based on security related grounds such as espionage, sabotage, genocide and Nazi Persecution can never be waived.

Inadmissibility Issues that may be waived by the section 212(d)(3) waiver.

There are a number of things that can make someone inadmissible when trying to get a nonimmigrant visa (Eg. TN, E-2, L-1, O-1, B-1, B-2, F-1, etc.).  These are described below.

Inadmissible Nonimmigrant applicants based on inadequate documentation or qualification.

• Nonimmigrants other than physicians seeking entry to perform labor as health-care workers who are uncertified.

Inadmissible Nonimmigrant applicants based on medical grounds.

• Nonimmigrants who have a communicable disease.
• Nonimmigrants with physical or mental disorders with associated harmful behavior including substance-related disorders.
• Nonimmigrants with past drug abuse or addiction.

Inadmissible Nonimmigrant applicants based on criminal activity, criminal convictions and related activities.

• Nonimmigrants with past violations involving controlled substance offenses.
• Nonimmigrants with multiple criminal convictions with aggregate sentences of 5 years or more.
• Nonimmigrants that a consular officer has reason to believe is a controlled substance trafficker.
• Nonimmigrants with past conduct or intentions to commit acts of Prostitution and Commercialized Vice.
• Nonimmigrants involved in serious criminal activity who have asserted immunity.
• Nonimmigrants who have committed or conspired to commit Human Trafficking offenses.
• Nonimmigrants who a consular officer believes has engaged, is engaging or seeks to engage in Money Laundering.

Inadmissible Nonimmigrant applicants based on Terrorism Related Grounds.

• Nonimmigrants who have engaged in Terrorist Activities.
• Nonimmigrants who have associated with Terrorist Organizations.

Inadmissible Nonimmigrant applicants based on Human Rights Violations.

• Nonimmigrants who have participated in Particularly Severe Violation of Religious Freedom.
• Nonimmigrants who have participated in Torture.
• Nonimmigrants who have participated in Extrajudicial Killings.
• Nonimmigrants who have participated in the Use or Recruitment of Child Soldiers.

Inadmissible Nonimmigrant applicants based on Illegal Entry, Misrepresentation and Other Immigration Violations.

• Nonimmigrants who failed to Attend Removal Proceedings.
• Nonimmigrants who have Misrepresented a Material Fact.
• Nonimmigrants who have made a False Claim to United States Citizenship.
• Nonimmigrants who have committed acts related to Smuggling noncitizens into the United States.
• Nonimmigrants who are Subject to Civil Penalty based on acts related to forgery.
• Nonimmigrants who are considered to have committed an act or acts Abusing a Student Visa.

Inadmissible Nonimmigrant applicants based on Citizenship Restrictions.

• Nonimmigrants who Departed or Remained Outside the United States to Avoid Military Service.

Inadmissible Nonimmigrant applicants based on Previous Removal and Unlawful Presence in the United States.

• Nonimmigrants who have been Previously Removed.
• Nonimmigrants who have been Unlawfully Present in the United States.
• Nonimmigrants who have been Unlawfully Present in the United States after Previous Immigration Violation.

Inadmissible Nonimmigration applicants based on Other Activities.

• Nonimmigrants who have committed acts involving International Child Abduction.
• Nonimmigrants who have Unlawfully Voted.
• Nonimmigrants who were Former Citizens Who Renounced Citizenship to Avoid Taxation.

Eligibility for the waiver does not require having a qualifying relative, that a certain amount of time pass or that the reason for travel is for humanitarian or compelling circumstances. Although the waiver may be approved for any legitimate purpose for travel, the decision maker of the waiver application must take into account the following factors:

• The recency and seriousness of the activity or condition causing the inadmissibility.
• The reasons for the proposed travel to the United States including the importance of the reason for seeking entry
• The positive or negative effects of the planned travel on U.S. public interests including any risk of harm.
• Whether there is a single, isolated incident or a pattern of misconduct including the seriousness of the acts.
• Evidence of reformation or rehabilitation.

Keep in mind that although a compelling reason is not required for approval of the waiver, the more compelling a case is the better the chances for approval.

Filing the Waiver Application at a U.S. Consulate

The filing is usually made after the consular officer reviews the visa application, then makes a finding of inadmissibility and requests that the applicant return with the waiver application and supporting documents. However, there are many consulates that allow the application to be made on the day of the interview. Although there is no formal process or filing fee required by law, filing procedures may vary from consulate to consulate so it is important to check with your local consulate whenever possible regarding exact filing procedures in order to make every attempt to avoid delays.

After the consular officer reviews the application, the officer makes a recommendation regarding issuance of the waiver which is submitted by the officer to the Admissibility Review Office in Washington D.C. where the Review Office will make a final decision on the application/request.

Filing the Waiver Application at a U.S. Port of Entry

This type of filing is typically made by visa exempt foreigners such as Canadian citizens. This process is more formal requiring the filing of a specific application, form I-192, a filing fee and documentation in support of the application. Depending on the grounds of inadmissibility, specific filing criteria must be met when filing the application. For example, in cases where a waiver is needed because the Nonimmigrant is inadmissible due to a criminal conviction, the Nonimmigrant will need to provide official court records including the charging document court order/judgement confirming the disposition for every crime committed anywhere in the world. The application must include a statement by the applicant explaining the circumstances of each arrest, conviction, sentence or fine imposed. Furthermore, the application must include an explanation on how the applicant has rehabilitated and reformed including evidence detailing ties to the local community such as marriage, community service and employment history.

Nonimmigrant waivers may only be issued for a maximum period of 5 years at a time but are typically issued for 6 month to 1-year periods.

Because it is not always clear whether you maybe subject to a finding of inadmissibility, it is important to consult with one of our experienced Immigration attorneys to help you determine whether you may be inadmissible and whether you will be eligible for section 212(d)(3) waiver.

Find more information on various immigration topics discussed in our blog.

Find more information on various immigration topics discussed in our blog.

Find more information on various immigration topics discussed in our blog.

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