The “Beautiful” Nonimmigrant Waiver
The beauty of obtaining a nonimmigrant waiver? That once you receive one, going forward, you will almost automatically receive the second one, and the third one, and the fourth one…. But the trick is – obtaining that first one…
The nonimmigrant waiver process is rather straightforward. For most applicants of the nonimmigrant waiver (also known as a Section 212(d)(3)(A) or Hranka waiver), there is no application form and there is no filing fee; you simply request the waiver at the visa interview. If the consular officer recommends the waiver, then Customs and Border Protection will usually agree with the recommendation and grant the waiver. The consul will then issue a visa with a waiver annotation. So how to obtain that elusive consular recommendation?
Well, if the applicant is applying for a B visitor visa or a F student visa, he/she must overcome his/her 214(b) burden first before the consul will consider the waiver request. This means that the applicant has a foreign residence that he does not intend to abandon and will comply with the terms of the visa. This step should not be overlooked: by invoking a 214(b) refusal, the consul can short-circuit and avoid the waiver request.
If the applicant overcomes 214(b), the consul will consider various factors when deciding whether to recommend the waiver or not. How long ago did the transgression take place? How serious was the violation? Was it administrative (e.g., a misrepresentation or alien smuggling) or criminal? If criminal, was there violence involved? Does the applicant pose a threat to the US or US citizens? Is the applicant “rehabilitated” and remorseful? Will there be a public relations problem for the US if the consul recommends the waiver? What is the purpose of the visit to the US?
The above all assumes that a waiver is needed in the first place – that the inadmissibility bar was correctly entered by the consul. As noted in the Case Studies section of the website, we often see and challenge cases of errant consular imposition of bars, for example under Section 212(a)(6)(C)(i) for a willful, material misrepresentation; under 212(a)(6)(E) for alien smuggling; and under 212(a)(2)(A)(i)(I) for a conviction or admission to the commission of a crime of moral turpitude.
Whether you are interested in challenging the consular decision or pursuing the nonimmigrant waiver, we have seen it all – or nearly all – in 30 years of handling nonimmigrant waiver applications. Some of these cases can seem “beastly” on the surface – drug possession, facilitating the illegal entry of a child, tax evasion, obtaining false airport stamps. But nonimmigrant waiver “beauty” is in the eye of the beholder. Let us help you navigate and maximize your chances of receiving that oh-so-hard-to-receive first nonimmigrant waiver. To see how we have helped individuals obtain nonimmigrant waivers over the years, please visit the Case Studies section. Please feel free to contact us so that we may be able to assess your case.