Obtaining a Waiver for a Nonimmigrant29 Sep 2014
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: 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 one is permanently barred from entering the U.S. Generally, a person in such a situation can be admitted as a nonimmigrant only after first obtaining a nonimmigrant waiver from the U.S. Department of Homeland Security (DHS).
Most Grounds of Inadmissibility May be Waived
The 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 nonimmigrant inadmissibility 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 an immigration benefit, can be waived, if the government finds the individual deserving of such favorable action.
Procedure to Apply for a Waiver at a U.S. Consulate
A person filing a nonimmigrant waiver request 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 port of entry. However, the details for this process go beyond the scope of this article.
Although nonimmigrant waivers can only be granted by the ARO, consular officers usually 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 typically will not even be sent to the ARO. In this situation, however, the applicant may insist that the waiver application be sent 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 sent to the ARO for final adjudication.
Factors Considered in Reviewing Waiver Requests
Under applicable case law, there are three main factors to be considered when determining whether to approve a nonimmigrant waiver application.
1. The risk of harm to society if the applicant is admitted
2. The seriousness of the applicant’s prior violations, if any
3. The reason the applicant wishes to enter the United States
With respect to the reason for wishing to enter the U.S., waivers may be granted to allow admission for any legitimate purpose, such as rejoining or visiting family, working (where otherwise authorized), visiting family, attending business conferences, and for tourism.
The ARO and consular officers also take into account the probable consequences to the public interest of the United States if the waiver is granted, and, when applicable, the amount of time that has passed since any criminal conviction or immigration violation occurred. 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 would typically 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 is strongly recommended.
Processing Time of Five Months or More
This process tends to be rather lengthy. As of this writing, the processing time for waiver requests submitted to the ARO is approximately five months, but many cases take considerably longer.
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 matters should never be taken for granted. The likelihood of obtaining a nonimmigrant waiver depends upon the facts of the case, and establishing that one is eligible and deserving of this forgiveness.
It should also be noted that only nonimmigrant waivers are discussed here. There are separate, more difficult requirements for obtaining immigrant waivers. In fact, in many situations, no waiver is available at all in the green card context.
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.
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