Waivers for Nonimmigrant Visa Applicants
Posted Jul 13, 2001
In our continuing effort to inform the public of important immigration law issues, we at The Law Office of Sheela Murthy present this article on the availability of a waiver of ineligibility for non-immigrant visas. Such a waiver may, for example, provide an opportunity to overcome the problem of a long-ago criminal conviction when applying for a temporary visa to enter the United States.
People who are applying for nonimmigrant (temporary) visas, such as a visitor's visa (B-1 or B-2) or student visa (F-1 or M-1), as well as those applying for permanent immigration, can be found ineligible for a visa based on criminal convictions and a variety of other grounds as listed in section 212(a) of the U.S. Immigration and Nationality Act (INA). Ineligibility based on section 212(a) of the Act is permanent. However, waivers do exist that may permit issuance of the visa, if certain requirements are met.
Section 212(d)(3) of the INA permits waivers of ineligibility for nonimmigrant visa applicants after obtaining approval from the INS. The law states that section 212(d)(3) waivers should be liberally granted, so the law does not require that such a waiver action be limited to exceptional, humanitarian or national interest cases. Consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.
The INS has broad discretionary power to waive all grounds of excludability for nonimmigrants including excludability for health reasons, criminal convictions (including drug offenses), prostitution, public charge, deportation and exclusion, misrepresentation, smuggling and draft evasion. (In contrast, waivers for immigrant, or permanent, visa applicants are much harder to obtain, and for certain grounds of inadmissibility, no waiver is available at all.)
There are three main criteria for determining whether to approve or deny a waiver application under section 212(d)(3) of the INA:
a. The risk of harm to society if the applicant is admitted;
b. The seriousness of the applicant's prior violations, if any; and
c. The reason for wishing to enter the United States.
The INS also takes into consideration the amount of time that has passed since any criminal conviction occurred, type of disability, if any, and the probable consequences, if any, to the public interest of the United States.
Some of the information needed for filing a waiver may include:
a. Reference letters from individuals who have personal knowledge of the applicant's character and reputation in the community;
b. A letter from the applicant's employer stating the job title and period of employment;
c. An affidavit from the applicant addressing the 3 main criteria listed in the prior list above;
d. Copies of criminal conviction records, if applicable, and/or letters from physicians, if applicable;
e. Documentation regarding previous waiver applications; and
f. Filing fee (required in most instances).
Waiver applications can be submitted to the INS official in charge of the intended port of entry, in which case it is necessary to submit the waiver application and all supporting documentation several months prior to intended arrival in the U.S. More commonly, the information is presented to the Consular Officer at the Consulate abroad. While the Consular Officer cannot make a decision on the case, s/he can make a recommendation to the appropriate officials at the INS, and forward the application to the nearest overseas INS office for a decision.
Approved waivers are generally valid for a period of one year, with either a single entry or with multiple entry visas allowed. Exceptions allowing a period of up to four years are made for individuals requiring frequent travel in and out of the U.S. The reasons for frequent travel must be demonstrated to the satisfaction of the Consular Officer.
A recent case involved a British citizen with 2 prior criminal convictions who had applied for a Visitor's visa at the U.S. Embassy in London. These convictions were of a minor nature and occurred more than 27 years prior to filing the application. The sentence imposed was a fine and no jail time. Based on the documentation submitted with the visa application, which included a copy of the court conviction record, the consular officer recommended a waiver to the INS and the visa was granted in 7 weeks. (Note that at many other consulates the processing time can be considerably longer.)
It is important to note that an approved waiver is subject to revocation by the INS at any time. Denials or revocations of waivers can be appealed.
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