Nonimmigrant Visa Waivers – Process and Criteria

Foreign nationals may be deemed ineligible for admission (i.e. inadmissible) to the United States for a variety of reasons. Common grounds of inadmissibility include the following: medical grounds, criminal grounds, and immigration violations (including fraud or material misrepresentation in connection with an immigration benefit). In most situations, a finding of inadmissibility means that a person cannot enter the U.S. Generally, such a person is admissible only after obtaining a nonimmigrant visa (NIV) waiver.

Most Grounds of Inadmissibility may be Waived

The U.S. Department of Homeland Security (DHS), through the U.S. Customs and Border Protection (CBP) Admissibility Review Office (ARO), has broad discretionary power to forgive or “waive” nearly all grounds of inadmissibility for nonimmigrants. There are a few exceptions, primarily related to serious crimes and terrorism, which are not eligible for the NIV waiver. But the most common reasons for inadmissibility findings, such as accumulating 180 days or more of unlawful presence or providing false information or documents in connection with an immigration benefit, can be waived if the government finds the individual deserving of favorable consideration based on extenuating circumstances.

Procedure to Apply for a Waiver at a U.S. Consulate

A person applying for an NIV waiver, sometimes referred to as a 212(d)(3) waiver based on the section of the Immigration and Nationality Act (INA) that authorizes the issuance of such waivers, generally will do so at a U.S. embassy or consulate, when applying for a nonimmigrant visa. There are situations in which, if the applicant already has a valid visa or does not need a visa to enter the United States, a waiver application can be filed directly at a U.S. port of entry (POE). The details of the process for a waiver at a POE are beyond the scope of this article.

Although the ARO is responsible for issuing NIV waivers, consular officers typically play a key role in the process. If the consular officer believes the waiver should be granted, the request is forwarded to the ARO, along with a favorable recommendation. In most but not all cases, a favorable recommendation by the consular officer is a good indicator that the ARO will reach the same conclusion and grant the waiver request.

If the consular officer believes the waiver request should not be approved, the case normally will not even be sent to the ARO. In this situation, the applicant seeking the waiver may insist that the consular officer forward the waiver application to the U.S. Department of State (DOS) Visa Office (VO) to review and reconsider the application and determine whether the waiver request should be forwarded to the ARO for final adjudication. Even then, however, the consular officer is only required to refer the request to the VO if the case meets at least one of several criteria (e.g., admission to the United States would advance a significant U.S. public interest, or is warranted due to urgent humanitarian or medical reasons.)

Factors Considered for NIV Waivers

Per the Foreign Affairs Manual (FAM), a consular officer should consider these factors in determining whether to approve an NIV waiver application:

• The recency and seriousness of the activity or condition causing the alien’s inadmissibility
• The reasons for the proposed travel to the United States
• The positive or negative effect, if any, of the planned travel on U.S. public interests
• Whether there is a single, isolated incident or a pattern of misconduct
• Whether there is evidence of reformation or rehabilitation

Waivers may be granted to allow admission to the United States for any legitimate purpose, such as rejoining family, working (where otherwise authorized), visiting family, attending business conferences, and for tourism. The Murthy Law Firm has found that, for inadmissibility findings based on criminal acts or acts of fraud / misrepresentation, the amount of time that has passed since the incident occurred tends to be an extremely important factor.

Preparation of the Waiver Package

There is no form or specific format required for nonimmigrant waiver requests submitted at a consulate. Rather, an application package typically would include a letter providing details about the waiver request; ideally supported by affidavits and/or other pertinent evidence. The decision as to whether to grant the waiver request is discretionary, so representation by an attorney experienced in preparing such waivers can often make a difference.

Processing Time of Five Months or More

As of this writing, the processing time for NIW waiver requests submitted to the ARO typically ranges from two-to-six months.

Best to Avoid Need for Waiver; Does Not Apply to Green Card Eligibility

While waivers may be available for many of the common grounds of inadmissibility, such waivers are never routine. The likelihood of obtaining an NIV waiver depends upon the facts of the case, and establishing that one is eligible and deserving of forgiveness.

It should also be noted that only nonimmigrant waivers are discussed here. There are separate, more difficult requirements for obtaining immigrant visa waivers. In fact, in many situations, no waiver is available at all in the green card context.

Conclusion

Waivers are a complex and discretionary process that often requires lengthy wait times. The fact that a person is eligible to apply for a nonimmigrant waiver does not mean the request will be granted. One who has been found inadmissible will want to provide the consular officer and the ARO with sufficient information and evidence to demonstrate why a waiver is warranted. The attorneys at the Murthy Law Firm have extensive experience representing foreign nationals in connection with nonimmigrant waiver requests.

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.

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