Waivers of Inadmissibility for
Nonimmigrants
INA § 212(d)(3)(A)(i) Cons Process &
212(d)(3)(A)(ii) I-192 process
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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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Most Common NIV waivers
• For crime grounds (CIMTs)
• For misrepresentation
• For unlawful presence
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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
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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
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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)
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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
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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.
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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.
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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.
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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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