Nonimmigrants who are found ineligible for admission (inadmissible) for entry into the U.S. are permanently barred from entering or remaining in the U.S. Generally, an inadmissible individual can seek entrance on a temporary basis with an Immigration and Nationality Act (INA) §212(d)(3) nonimmigrant visa waiver. This waiver is available to foreign nationals who have been found inadmissible due to various reasons, including criminal convictions, medical grounds, and immigration violations. Eligible applicants can find the waiver useful if they can overcome the grounds of inadmissibility as listed in the INA (exceptions are related to foreign policy and association with Nazi persecutions).
Normally, the waiver is accompanied by a nonimmigrant visa (e.g. H-1B, L1, tourist visa, or student visa). An individual needing a nonimmigrant waiver will file the waiver request at the time of applying for a nonimmigrant visa at an U.S. embassy or consulate. If the consular officer supports the approval of the waiver, s/he would submit his/her recommendation along with the waiver request to the U.S. Customs and Border Protection (CBP) Admissibility Review Office (ARO). The ARO reviews the waiver recommendation and submits a response to the consular post.
If the consular officer does not recommend an applicant for a waiver, the applicant can still proceed with the submission and request the consular officer to forward the waiver application. The consular officer will submit the waiver along with his/her case summary to U.S. Department of State (DOS) Visa Office (VO). If the VO determines that the waiver should be granted, it will forward the waiver request to ARO for final adjudication. It is noteworthy to remember that the consular officer may submit a recommendation to DOS against the waiver with a summary of reasons for the objection to a favorable grant of waiver.
If a nonimmigrant visa has been obtained or is not required, then the waiver can be applied at a U.S. port of entry. For waivers submitted directly to CBP, instead of submission through a consulate, Form I-192 Application for Advance Permission to Enter as a Nonimmigrant has to be completed. For cases involving U visas or T visas, the waiver can be applied through U.S. Citizenship and Immigration Services (USCIS).
It is at the immigration officers’ discretion to grant or deny the waiver application. However, there are three main factors that the officers will consider: (1) the risk of harm to society in admitting the applicant; (2) the seriousness of the acts that caused the inadmissibility; and (3) the importance of the applicant’s reason for seeking entry.
Current processing times for waivers filed with a U.S. consulate is up to 90 to 180 days. For waivers submitted directly to the CBP, processing times can be up to 150 to 180 days. Please note that the processing times are estimates and actual processing times may vary depending on an individual’s case and/or ARO’s caseload.
Waivers are useful and an important solution for many individuals who are found inadmissible. However, filing the waiver application does not mean the waiver request will be granted; it is a complex, lengthy, and discretionary process. Feel free to contact our office to learn more about eligibility and submitting a §212(d)(3) nonimmigrant visa waiver.