A non-immigrant waiver is available for almost all grounds of inadmissibility. The INA provides for non-immigrant waivers of inadmissibility at section 212(d)(3). The BIA has set forth a framework/balancing test that must be followed when adjudicating non-immigrant waiver applications.
The test involves the balancing of three (3) factors:
- The seriousness of the violation that renders the individual inadmissible;
- The potential risk of harm to U.S. society if the individual is admitted to the U.S.; and
- The individual’s reasons for seeking entry into the U.S.
All non-immigrant waiver applications are adjudicated by the Admissibility Review Office (“ARO”), which is part of the U.S. Department of Homeland Security. The application process, however, varies depending upon the location and nationality of the applicant.
Canadian citizens apply for a non-immigrant waiver by filing a Form I-192 and required supporting documentation with U.S. Customs and Border Protection (“CBP”) officials at either a land border port of entry or a pre-clearance location. CBP officials review the application package for completeness, accept the filing fee, take fingerprints, and then forward the complete package to the ARO for adjudication, which can take an average of 6-8 months for decision. There are, however, many applications that cannot be adjudicated within average processing times due to various agency delays.
Other foreign nationals must apply for a non-immigrant waiver in connection with a non-immigrant visa application at a U.S. Consulate abroad. There is no specific form and no filing fee for these waiver applications. At the Consulate, the interviewing officer will first review the visa application. If the applicant appears to be eligible for the visa s/he is seeking, then the officer will move on to reviewing the waiver request. Although the Consular officer has no authority to adjudicate the non-immigrant waiver application, the officer is required to review the waiver request and then determine whether the request warrants a favorable recommendation to the ARO. If the officer provides a favorable recommendation, the waiver application materials are forwarded to the ARO electronically.
A decision can take 3-6 months on average. If the Consular officer is not prepared to recommend the waiver, then the individual’s visa application will be denied. The denied individual is free to reapply for a non-immigrant visa and waiver again, but should be careful to address any of the Consulate’s concerns before re-applying.