INA § 212(d)(3)(A)(i) Non-immigrant Waiver (Applying At U.S. Consulate)
For those foreign nationals who are seeking to enter the U.S. for non-immigrant purposes and who are inadmissible to the U.S. under INA § 212, they must not only obtain the necessary visa to enter the U.S., but must also obtain a non-immigrant waiver of inadmissibility. (For a discussion of how Canadian citizens apply for this non-immigrant waiver of inadmissibility, please visit the section on I-192 Waivers.)
These foreign nationals can apply for this non-immigrant waiver of inadmissibility at the same time they apply for the applicable visa at the U.S. Consulate/Embassy. Specifically, if a visa applicant is inadmissible, the visa application review process will proceed as following:
- The Consular Officer will first make a determination on whether the applicant qualifies for the particular type of visa being applied for; and
- If the applicant qualifies for a visa, the applicant will be instructed that he or she will need to obtain a waiver.
Once a visa application with a waiver is submitted to the Consulate, consular officers will review the material and then determine whether to recommend the waiver application to the Admissibility Review Office ("ARO") for approval. On the other hand, should the consular officer choose not to recommend the waiver application, the applicant may request that his or her case be submitted for an advisory opinion. The applicant may also choose to accept the denial and simply apply at a later date.
After reviewing the waiver application, the ARO will notify the consulate of its decision. In turn, the consulate will then notify the applicant. If approved, the nonimmigrant visa will be issued with an annotation evidencing that the waiver has been granted.
Requirements for a Recommendation
Before a consular officer can recommend a nonimmigrant waiver application, the applicant must:
- not be inadmissible under INA § 214(b) [an intending immigrant];
- not be inadmissible under INA § 212(a)(3)(A)(i)(I); § 212(a)(3)(A)(ii), § 212(a)(3)(A)(iii), § 212(a)(3)(C), or § 212(a)(3)(E) [security-related grounds of inadmissibility;
- not seek a waiver of nonimmigrant documentary requirements of INA § 212(a)(7)(B), which may be waived only under the provisions of INA § 212(d)(4); and
- qualify for the nonimmigrant visa her or she is seeking. [9 FAM 40.301 N2]
Consular officers may recommend an INA § 212(d)(3)(A) waiver for any nonimmigrant who meets the criteria set forth above. 9 FAM 40.301 N3. In determining whether to recommend the application, consular officers are advised to consider three specific factors:
(1) The recency and seriousness of the activity or condition causing the alien’s inadmissibility;
(2) The reasons for the proposed travel to the United States; and
(3) The positive or negative effect, if any, of the planned travel on U.S. public interests.
9 FAM 40.301 N3. The factors for consideration set forth by the Department of State in the FAM mirror those set forth by the BIA in Matter of Hranka (the leading BIA case in this matter).
For our clients, we gather the necessary information/documents from our client, and prepare a comprehensive packet outlining the client's eligibility for the waiver, including a legal brief which provides background together with an analysis of how the client meets each of the factors outlined in precedent case law.