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Waivers of Inadmissibility for Nonimmigrants

Waivers of Inadmissibility for Nonimmigrants. INA § 212(d)(3)(A)(i) Cons Process & 212(d)(3)(A)(ii) I-192 process. NIVs must be admissible 212 (a) – (special rules for U, T, Ks). NIV waiver has broad coverage NIV waiver does not waive grounds for later perm. residence.

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Waivers of Inadmissibility for Nonimmigrants

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  1. Waivers of Inadmissibility for Nonimmigrants INA § 212(d)(3)(A)(i) Cons Process & 212(d)(3)(A)(ii) I-192 process

  2. NIVs must be admissible 212 (a) – (special rules for U, T, Ks) NIV waiver has broad coverage NIV waiver does not waive grounds for later perm. residence

  3. Most Common NIV waivers • For crime grounds (CIMTs) • For misrepresentation • For unlawful presence

  4. Standards INA §212(d)(3) • All inadmissibility grounds may be overcome except for security/espionage grounds, terrorism grounds, genocide/Nazi persecution • Matter of Hranka, 16 I&N Dec. 491 (BIA 1978) • Dept of State has own guidelines at 9 FAM 40.301 N3 – advises officers to use discretion broadly

  5. HRANKA Factors • Risk of harm to applicant • Seriousness of the acts causing inadmissibility • Importance of reason for entry • Applicant was denied by DD because only 2 yrs had passed since deported for prostitution; no compelling humanitarian reason for return • BIA reversed – she was approved for waiver

  6. NIV Waiver process • Decisions centralized at CBP’s Admissibility Review Office in Herndon, VA. • Two routes – one through consulate (no form, no fee, transmitted electronically to ARO by DOS) • Other by applicant who does not need visa but needs a waiver (Canadians); submit I-192 with fee at POE to CBP (up to 6 months)

  7. NIV Waiver Process • Filing locations for I-192s on CBP web site – sometimes at a pre-clearance operation or at northern border port of entry • ARO can be communicated with at inquiry.waiver.aro@dhs.gov

  8. NIV Waiver validity • 5 years maximum under 8 CFR 212.4(c ) (3)(iii) but usually granted for 1 year at first, sometimes 2-4 years.

  9. True or False? • A nonimmigrant waiver may be granted for any grounds of inadmissibility. • A nonimmigrant waiver will cure the grounds of inadmissibility permanently. • A nonimmigrant waiver requires a form and a fee. • You can always apply at the airport for a nonimmigrant waiver.

  10. True or False? • The ARO office took over the nonimmigrant waiver process in 2000. • The ARO is a division of USCIS. • The Department of State has guidelines about generous exercise of discretion for nonimmigrant waivers in the FAM. • Matter of Torres Varela is the key BIA case on nonimmigrant waiver standards.

  11. Strategy • Remember to examine whether the grounds of inadmissibility is correctly applied - • Criminal grounds that require a conviction – is there one? • Did misrepresentation amount to a willful misrepresentation of a material fact?

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