General Waiver for Nonimmigrants
Written by Henry J. Chang
Statutory Authority for Nonimmigrant Waivers
The authority for nonimmigrant waivers of inadmissibility appears at INA §212(d)(3)(A). According to this provision, an alien:
INA §212(d)(3)(A)(i) applies to nonimmigrant waivers of inadmissibility requested by United States Embassies or Consulates in connection with an alien's application for a nonimmigrant visa. INA §212(d)(3)(A)(ii) applies to nonimmigrant waivers of inadmissibility requested directly by the alien where he or she is not applying for a nonimmigrant visa.
Canadian citizens are exempt from the requirement to obtain a nonimmigrant visa in most cases. As a result, they will usually apply for a nonimmigrant waiver directly with United States Customs & Border Protection ("USCBP"), in accordance with INA §212(d)(3)(A)(ii).
Factors Considered in Nonimmigrant Waiver Applications
In the precedent Board of Immigration Appeals ("BIA") decision of Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the BIA concluded that an application under INA §212(d)(3)(B) requires a weighing of at least three factors:
- Who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa (other than for security and related grounds (with the exception of export violations), foreign policy grounds or participation in Nazi persecution or genocide), may be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General; or
- Who is inadmissible (other than for security and related grounds (with the exception of export violations), foreign policy grounds or participation in Nazi persecution or genocide), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General.
In Matter of Hranka, the BIA reversed the District Director's denial of a waiver application submitted by a woman who had been previously deported two years before. The alien in that case had been using heroin and had also engaged in occasional acts of prostitution. She was ultimately deported on the basis of engaging in prostitution.
The evidence presented in Matter of Hranka convinced the BIA that the alien had been rehabilitated. It consisted of statements from the mother confirming that the alien had been holding down two jobs and that she had always been well behaved until she began living with a man who had a negative influence on her. A letter from the principal of the high school that the alien attended was also submitted; it supported the mother's opinion. The principal was a psychologist and a close friend of the alien's family. The alien herself stated that she lived in a border town and it was difficult to go about her every daily life if she was unable to cross into Detroit.
The BIA conceded that the alien's reasons for wanting to enter the United States could not be fairly characterized as "compelling". However, it also held that there was no requirement that the alien's reasons be compelling.
The BIA concluded that the risk of harm to society, if the alien was allowed to enter, was very small in light of her rehabilitation. Balancing the three factors, the BIA concluded that the waiver should be granted. The BIA clearly adopted a liberal construction of this nonimmigrant waiver provision.
The complete text of Matter of Hranka appears here.
Duration of Nonimmigrant Waivers
Until October 1, 2002, waivers of inadmissibility under INA §212(d)(3) were valid for a period of up to one year. However, since that date it has been possible to apply for a nonimmigrant waiver that is valid for a period of up to five years.
Unfortunately, in recent years, the USCBP Admissibility Review Office has become strict in the adjudication of nonimmigrant waiver applications. It is not uncommon to received a waiver of only one year, even for minor or very old offenses, until the third renewal.
- The risk of harm to society if the applicant is admitted;
- The seriousness of the applicant's prior violation(s) of immigration or criminal law, if any; and
- The nature of the applicant's reasons for seeking entry.