Certain crimes, fraud, and other offenses may bar an individual from entering the United States. However, in certain cases, specifically under Section 212(d)(3)(A) of the Immigration and Nationality Act (INA), consular officers have the discretionary authority to recommend waivers for nonimmigrant visa (NIV) if the applicant meets the eligibility criteria and their presence is deemed beneficial, or at the very least not harmful, to the interests of the United States.
Highlights:
- Waiver Authority: Many crimes and fraud may be waived under Section 212(d)(3) for the majority of non-immigrant visa ineligibilities arising under section 212(a) of IN. If a visa is )=denied because the consular officer finds that the applicant has immigrant intent (214(b)) or there is a finding of further administrative processing ((221(g) , no waiver is available. Even though the consular officer may recommend a waiver in certain cases, the final decision lies with the , Admissibility Review Office of Customs and Border Protection (CBP/ARO)
- Consular Officers Role: The CBP receives waiver recommendations from consular officers, who are entitled to use their discretion in determining if the NIV applicant poses harm to U.S. interests using a five (5) point list of criteria to make their assessment. This recommendation process involves communicating through the Admissibility Review Information System (ARIS) to CBP/ARO.
- Deliberative Factors: Officers aare directed by the Foreign Affairs Manual (FAM) to consider the following five (5) criteria when recommending a 212(d)(3) waiver as below:
- Recency and severity of the ineligibility cause.
- Purpose of proposed travel to the U.S.
- Impact, if any, on U.S. public interests.
- Presence of a single incident vs. a pattern of misconduct.
- Evidence of the applicant’s rehabilitation or reformation.
A Waiver Practice Twist: Ineligibilities under Section 212(a)(9)(A) and (9)(C)
One sort of ineligibilitie found under Sections 212(a)(9)(A) and (9)(C) pertain to situations where “a foreign national has been removed from the United States or has attempted to re-enter unlawfully after being present without authorization for more than a year or after being ordered removed”. These ineligibilities can potentially be waived under Section 212(d)(3), but they require an additional approval from the Attorney General, known as “consent to reapply” (CTR), before the foreign national can seek readmission. Consular officers have the authority, under specific circumstances, to request CTR when recommending a waiver for these ineligibilities to the Admissibility Review Office (ARO) using the Admissibility Review Information System (ARIS).
Waiver for 212(a)(9)(A) – Foreign Nationals Who Have Been Removed
Under Section 212(a)(9)(A)(i), a foreign national who has been ordered removed through expedited removal or on arrival is ineligible for admission for five (5) years from the date of removal (or twenty (20) years if it’s the second time they are removed or if they were convicted of an aggravated felony). Furthermore, under Section 212(a)(9)(A)(ii), those ordered removed after a formal removal hearing or who left while under an outstanding removal order face a ten (10) year inadmissibility period (or twenty (20) years for subsequent removals or aggravated felony convictions).
Waiver for 212(a)(9)(C)(i)(I) – Entry or Attempted Entry without Admission after Unlawful Presence
Under Section 212(a)(9)(C)(i)(II), foreign nationals who enter or attempt to enter the U.S. without seeking admission after being unlawfully present for over one (1) year are permanently barred. Consular officers can recommend a waiver under Section 212(d)(3) for NIV applicants ineligible under this provision by submitting a waiver request to CBP.
The rules concerning waivers are therefore complicated and take much time at the consular and CBP level. A good waiver request to a consulate should include a comprehensive brief describing the basis of the waiver as well as any supplementary evidence that would assist the consular officer, first, in making a favorable decision, and second assisting the CBP officer in rendering a favorable decision. It is therefore incumbent upon the petitioner of a waiver application to seek competent counsel in guiding him/her in the process.