Under U.S. immigration law, certain foreign nationals can apply for a waiver to overcome their inadmissibility to the U.S. Waivers are available for foreign nationals with either immigrant or nonimmigrant intent.
Form I-192, Application for Advance Permission to Enter as Nonimmigrant [pursuant to INA § 212(d)(3)(A)(ii)]
If you are a a class of nonimmigrant who does not require a visa, e.g., most Canadian citizens, and are inadmissible to the U.S., you may be eligible to apply for advance permission to enter as a nonimmigrant.
The Form I-192 application package must include the following:
- Evidence of citizenship.
- Completed Form I-192 signed and submitted by you (no copies).
- Form G-28 (if you have retained an authorized person to represent you on this specific application).
- U.S. Fingerprint card FD-258. This fingerprint card will be completed by a U.S. CBP Officer at the time you submit of your application.
- Form G-325A completed and signed by you.
- Criminal Record: If you have a criminal record in any other country's court system, you must also obtain a copy of the applicable record or an official letter from the court of jurisdiction stating the reason why a copy of the record is not available.
- Royal Canadian Mounted Police (RCMP) Record (Canadians): To obtain verification of your criminal record or evidence of a lack thereof from the RCMP by submitting your fingerprints on Form C216C. The returned Civil Product and any accompanying records must be dated and endorsed by the RCMP within 15 months of submission with your Form I-192. (Do not submit the Form I-192 application until you have obtained the documents from the RCMP).
- A copy of the official court record from the actual court of conviction indicating plea indictment, conviction and disposition for each and every crime committed anywhere in the world.
- Evidence of Rehabilitation: If you are inadmissible to the U.S. because of a criminal conviction, you should submit a statement in your own words, signed by you, explaining the circumstances of each arrest, conviction, and sentence or fine imposed. In addition, you should submit evidence of rehabilitation.
Once you submit your application, it will be forwarded to the Admissibility Review Office (ARO) for adjudication. In Matter of Hranka, the Board of Immigration Appeals ("BIA") outlined three factors to consider in deciding whether or not to grant an application. The three factors are as follows:
- The risk of harm to society if the applicant is admitted;
- The seriousness of the applicant's prior immigration law, or criminal law, violations, if any; and
- Nature of the applicant's reasons for wishing to enter the U.S.
In general, applications have a processing time of five to eight months. Once adjudicated, a decision will be mailed to you (and your representative, if applicable). If approved, the duration of your waiver will be indicated on your waiver approval. (Note: advance permission to enter the U.S. is granted at the discretion of the Department of Homeland Security (DHS), and can be revoked at any time).
INA § 212(d)(3)(A)(i) Waiver – Applying for a Nonimmigrant Waiver at a U.S. Consulate
A foreign national who is inadmissible to the U.S. and seeking a nonimmigrant visa, must apply to waive that inadmissibility under INA § 212(d)(3)(A)(i). Section 212(d)(3)(A)(i) of the INA provides a broad waiver for most grounds of inadmissibility found under INA § 212(a).
Once the visa application and waiver are submitted to the Consulate, the application is reviewed and a determination is made whether to recommend the waiver or deny it. If consular officials choose to deny the waiver application, the applicant may request for an advisory opinion. An advisory opinion is an opinion regarding the legal correctness of an applicant’s visa refusal.
If the waiver is recommend, it is forwarded to the Admissibility Review Office ("ARO"). After a review of the waiver application, the ARO will render a decision. If approved, the nonimmigrant visa will be issued along with an annotation (on the visa) evidencing that the waiver was granted.
Requirements For INA § 212(d)(3)(A)
The following conditions must be met before a waiver is recommended/granted:
(1) The applicant is not inadmissible under INA § 214(b) [Intending Immigrant];
(2) The applicant is not inadmissible under INA § 212(a)(3)(A)(i)(I) [Espionage or Sabotage], INA § 212(a)(3)(A)(ii), INA § 212(a)(3)(A)(iii), INA § 212(a)(3)(C) [Foreign Policy], or INA § 212(a)(3)(E) [Nazi Persecution, Genocide, Torture] ;
(3) The applicant is not seeking a waiver of nonimmigrant documentary requirements of INA § 212(a)(7)(B), which may only be waived under the provisions of INA § 212(d)(4); and
(4) The applicant is qualified for the nonimmigrant visa he or she is seeking.
Factors Considered when Recommending Waiver
You may recommend an INA 212(d)(3)(A) waiver for any nonimmigrant whose case meets the criteria of 9 FAM 40.301 N3 above and whose presence would not be harmful to U.S. interests. Eligibility for a waiver is not conditioned on having some qualifying family relationship, or the passage of a specific amount of time since the commission of the offense, or any other special statutory threshold requirement. The law does not require that such action be limited to humanitarian or other exceptional cases. While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.
You should consider the following factors, among others, when deciding whether to recommend a waiver:
(1) The recency and seriousness of the activity or condition causing the alien's inadmissibility;
(2) The reasons for the proposed travel to the U.S.; and
(3) The positive or negative effect, if any, of the planned travel on U.S. public interests.
Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal
A foreign national should file the Form I-212 when he or she is inadmissible under INA § 212(a)(9)(A) [certain foreign nationals previously removed] or INA § 212(a)(9)(C) [foreign nationals unlawfully present after previous immigration violations]. A foreign national must first obtain "consent to reapply for permission" before he or she can lawfully return to the U.S.
Inadmissible Under INA § 212(a)(9)(A)(i). File Form I-212 if you seek to return to the U.S. and: (1) you were removed from the U.S. as an inadmissible alien through expedited removal proceedings under INA § 235(b)(1); or you were removed from the U.S. as an inadmissible, arriving alien under INA § 240.
Inadmissible Under INA § 212(a)(9)(A)(ii). File Form I-212 if you seek to return to the U.S. and: (1) you were removed from the U.S. as deportable alien under INA § 240; or (2) you were ordered removed under any other provision of U.S. law; or (3) you departed the U.S. on your own while an order of removal was outstanding, that is, after you were ordered removed and the Government was able to remove you based on this order.
Inadmissible Under INA § 212(a)(9)(C)(i). File Form I-212 if, on or after April 1, 1997, you entered or attempted to reenter the U.S. without being admitted after: (1) you had been unlawfully present in the U.S. after April 1, 1997 for an aggregate period of more than 1 year; or (2) you has been removed under any provision of the UNA or any other provision of law before, on, or after April 1, 1997.
Adjudication of Form I-212
When reviewing Form I-212 applications, the government considers factors outlined in Matter of Tin and Matter of Lee. In Matter of Tin, the commissioner held:
In determining whether the consent required by statute should be granted, all pertinent circumstances relating to the applicant which are set forth in the record of proceedings are considered. These include but are not limited to the basis for deportation; recency of deportation; length of residence in the U.S.; applicant's moral character; his respect for law and order; evidence of reformation and rehabilitation; his family responsibilities; any inadmissibility to the U.S. under other sections of law, hardship involved to himself and others; and the need for his services in the U.S.
In Matter of Lee, the commissioner held:
Recency of the deportation can only be considered when there is a finding of poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience. In such circumstances, there must be a measurable reformation of character over a period of time in order to properly assess an applicant's ability to integrate into out society. In all other instances when the cause of deportation has been removed and the person appears eligible for issuance of a visa, the time factor should not be considered.
Factors considered when adjudicating Form I-212:
- Basis of applicant's removal
- Recency of removal
- Applicant's moral character
- Applicant's length of residence in the U.S.
- Need for applicant's services in the U.S.
- Hardships resulting from deportation
- Evidence of rehabilitation
- Applicant's family responsibilities and ties in the U.S.
- Approved immigrant visa petition
I-601, Application for Waiver of Grounds of Inadmissibility
A foreign national who is ineligible to be admitted to the U.S. as an immigrant or to adjust status in the U.S., and certain nonimmigrant applicants who are inadmissible, must file a Form I-601 to seek a waiver of certain grounds of inadmissibility.
I-601, Application for Waiver of Grounds of Inadmissibility
- Applicant is outside the U.S. applying for an Immigrant or fiance(e) visa at a U.S. Consulate
- For inadmissibility for unlawful presence or misrepresentation, a qualifying relative is defined as the USC or LPR spouse or parent
- For criminal inadmissibility, a qualifying relative is defined as a USC or LPR spouse, parent, son, or daughter
- A USC fiance(e) is also considered a qualifying relative
- An applicant may file under the following criteria: (1) ability to demonstrate extreme hardship, or, (2) eligible under the 15-Year Statute of Limitations
I-601A, Application for Provisional Unlawful Presence Waiver
- Have an approved family-based petition
- Be present in the U.S. at the time of filing that waiver application
- Inadmissible to U.S. for unlawful presence only. No other criminal convictions. Exceptions: (1) Youthful Offender (one crime under the age of 18 committed more than five years before visa application date); (2) Petty Offense: (one crime with a maximum penalty of one year in jail with an actual sentence of no more than six months jail time.)
- Ability to demonstrate extreme hardship to U.S. citizen spouse or parent. (Extreme hardship to LPRs cannot be relied upon at this time.)
The following is a non-exhaustive list of factors that should be considered when trying to prove extreme hardship: (1) family ties in the U.S.; (2) family ties outside the U.S.; (3) country conditions in the country of relocation; (4) financial impact of departure; (5) physical and mental health condition(s) of qualifying relative(s); (5) economic disadvantage; (6) loss of current employment; (7) family separation; (8) cultural adjustment of qualifying relative(s) in country of relocation.