Friday, April 20, 2018

Nonimmigrant Waivers Pursuant to INA § 212(d)(3), Including Form I-192

For a variety of different reasons, many foreign nationals find themselves inadmissible to the U.S.  Inadmissible individuals cannot even enter the U.S. for a short shopping trip or even in-transit to another destination.  Fortunately, however, most inadmissible foreign nationals can overcome their inadmissibility in order to enter the U.S. on a temporary basis by applying for a nonimmigrant waiver pursuant to section 212(d)(3) of the Immigration and Nationality Act (“INA”). 
A nonimmigrant waiver differs from an immigrant waiver in the same way that a nonimmigrant visa differs from an immigrant visa.  If a foreign national is seeking to enter the U.S. to live here on a permanent basis – as a permanent resident with a “green card” – then s/he requires an immigrant visa.  If s/he is inadmissible, then s/he will require an immigrant waiver in addition to his/her immigrant visa.  There is not an immigrant waiver available for all grounds of inadmissibility. 
If a foreign national is seeking to enter the U.S. on a temporary basis, then s/he requires a nonimmigrant visa [unless s/he is visa exempt like most Canadians].  If the potential nonimmigrant is inadmissible, then s/he will require a nonimmigrant waiver.  Even visa-exempt Canadians seeking to enter solely as visitors for a few hours will require a nonimmigrant waiver if any ground of inadmissibility applies. 
Section 212(d)(3) of the INA provides for a nonimmigrant waiver of virtually all grounds of inadmissibility to the United States (except security and related grounds of inadmissibility).  Although all nonimmigrant waivers under INA § 212(d)(3) are adjudicated by the Admissibility Review Office (“ARO”), which is a sub-office of U.S. Customs and Border Protection (“CBP”), there are two (2) different applications processes for: (1) waiver applications filed at a U.S. Consulate abroad; and (2) waiver applications filed at a U.S. Port of Entry.  As discussed in more detail below, only waivers applied for at a Port of Entry require the submission of Form I-192 together with the appropriate filing fee. 

Form I-192, Application for Advance Permission to Enter as a Nonimmigrant [Pursuant to INA § 212(d)(3)(A)(ii)]
Visa-exempt foreign nationals, like Canadian citizens, that are deemed to be inadmissible to the U.S. must apply for a nonimmigrant waiver by submitting a completed Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, to CBP officials at a U.S. Port of Entry together with the appropriate filing fee and other required supporting documents. 

Filing Procedures
The specific filing procedures at the land border ports of entry along the northern border will vary depending upon the port.  For instance, in the Buffalo area, applications must be filed in-person at any land border port of entry.  The fee is accepted and receipted, fingerprints are taken, and the application is reviewed for completeness.  This process is the most common along the northern border, with the exception of ports of entry from St. Ste Marie, Michigan east to Detroit, Michigan.  Rather than in-person filing, these ports of entry require the mailing of all nonimmigrant waiver applications together with fee.  The I-192 waiver office then sends fingerprinting instructions to the applicant, requiring him/her to appear in-person at a port of entry to complete the fingerprinting process.  Thus, no I-192 waiver application can be completed totally by mail.  
Form I-192 waiver applicants who are physically present in the United States should keep in mind that a proper waiver application requires departure from the U.S.  You will not be permitted to depart the U.S., file the waiver application, and then return to the U.S. unless you are already in possession of a nonimmigrant waiver and only departed the U.S. in order to apply for a renewal. 
Form I-192 waiver applicants who intend to submit the waiver application at a land border port of entry should be aware that, unless the applicant is in possession of a valid waiver, s/he will be subject to a formal refusal of entry.  This formal refusal does not create additional grounds of inadmissibility or make a waiver more difficult to obtain.  Rather, many individual waiver applicants are caught off-guard upon being informed that s/he is the subject of “a formal refusal of admission to the United States,” as it sounds worse than it really is.  Many also find it embarrassing. 
The filing procedure is the same at all pre-clearance ports within Canadian airports, where applicants file Form I-192 together with supporting documents in person.  Fees are receipted and fingerprints are taken at the time of filing. 
Both pre-clearance ports and land border ports of entry will often have limited hours on specific days during which they will accept waiver applications.  It is therefore recommended that applicants contact their nearest port of entry in advance before planning on a date to make an in-person application.  You can also visit the CBP website [] for information regarding filing locations and times.
If you live in the Toronto area, the I-192 Office located within Toronto Pearson International Airport is open on Saturdays from 8:00 a.m. to 7:00 p.m.  The I-192 Waiver Office is located at Terminal 1, Departures Level.  CBP officials at Pearson advise applicants to arrive early unless they do not mind waiting several hours. 
If you live in the Buffalo/Niagara region, I-192 waivers are accepted at the Peace Bridge Port of Entry Monday – Thursday from 5:00 p.m. until 9:00 p.m.  They are also accepted at the Rainbow Bridge Port of Entry on Monday - Thursday from 9:00 a.m. to 3:00 p.m., and on Sundays between 5:00 p.m. and 9:00 p.m. during the months of October – May only.  Forms I-192 may also be filed at the Lewiston-Queenston Port of Entry on Monday – Thursday from 2:00 p.m. to 9:00 p.m. 
In addition to completing Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, Canadian citizens are also required to submit specific supporting documents together with Form I-192.  These supporting documents are verified by CBP officers at the filing location.  If all required documents are not present, then the CBP officers will most likely refuse to accept your application, or accept it but refuse to forward it to the ARO until all required documents are submitted.  CBP created a Form I-192 application checkist years ago.  Since requirements continue to change, it is recommended that applicants check with their attorneys to determine if the list has changed or if additional documents are required before filing. 
If the Form I-192 has been completed properly and all supporting documents are present, then the CBP officials at the filing location will process the application by forwarding the package to the ARO for adjudication.  

The Admissibility Review Office ("ARO")
The ARO, which is located in the Washington, DC area, is part of CBP.  Since 2005, it has been the sole agency charged with adjudicating I-192 waiver applications [as well as all waiver applications pursuant to INA § 212(d)(3), including those submitted at Consulates abroad – see below].  The DHS created the ARO in an effort to achieve consistency in the adjudication of nonimmigrant waivers pursuant to INA § 212(d)(3).  See CBP Memorandum, "Admissibility Review Office," CBP Assistant Commissioner, Office of Field Operations, Jayson P. Ahern (March 22, 2005).   
The result is one office within the DHS that can specialize and focus solely on the application of INA § 212(d)(3).  While the ARO has the discretion to grant or deny nonimmigrant waiver applications, it must adjudicate these applications pursuant to the legal guidelines and framework set forth by the Board of Immigration Appeals (“BIA”) in its landmark case: Matter of Hranka.  In that case, the BIA set forth three (3) factors that must be weighed together in deciding whether or not to grant a waiver application under INA § 212(d)(3): 
  1. the risk of harm to society if the applicant is admitted; 
  2. the seriousness of the applicant’s prior immigration law, or criminal law, violations, if any; and 
  3. the nature of the applicant’s reasons for wishing to enter the United States. 
Matter of Hranka, 16 I. & N. Dec. 491, 492 (BIA 1978). 
In Hranka, the BIA held that the risk of harm posed by a young Canadian woman who had one prior incident of prostitution two (2) years earlier was “very small.”  The BIA noted that the applicant had no other criminal or immigration law violations and found that the applicant had “substantial reason for desiring a waiver” in that she had many close relatives living in the U.S. (uncles and cousins).  The BIA also held that there is no requirement that the applicant’s reasons for wishing to enter the U.S. be “compelling.”  Based upon these factors, the BIA concluded that a nonimmigrant waiver should be granted.  Id.  See Approvals to read about successful nonimmigrant waiver applications. 
The decision of the BIA in Matter of Hranka has been controlling the adjudication of nonimmigrant waivers pursuant to INA § 212(d)(3) for over 30 years. 
In order to present the strongest waiver application on behalf of our clients, our office puts together a comprehensive application package, including a legal brief that applies the specific law of the Hranka case to the facts present in each applicant’s case.  Together with the brief, we prepare and package the application forms; the required supporting documents; and additional evidence that we deem necessary to submit.  Once the package is prepared, we send it to our client via courier with detailed instructions on submitting the package in person at the nearest (or most convenient) CBP office.  Once the application package has been filed, we begin to monitor the application at the ARO.  If there is no decision received within 90 days of submission, we begin to contact the ARO on a regular basis until a decision is issued. 

Processing Times
Form I-192 waiver application processing times will vary from case to case.  While the ARO goal is to complete the adjudication of each application within 4-6 months of the filing date, there are many cases in which the processing period is much longer.  In many cases, the delay is not at the ARO, but with another federal agency responding to the necessary background and security checks.  The good news is that the first waiver application usually involves the longest processing time.  Subsequent Form I-192 waiver applications are usually processed much quicker – generally within 3-4 months. 
By regulation, nonimmigrant waivers pursuant to INA § 212(d)(3) may only be issued for a maximum period of 5 years at a time.  See 8 C.F.R. § 212.4(c)(3)(iii).   Some Canadians find this confusing, as the U.S. used to offer “lifetime waivers” – also known as Canadian Border Crossing Cards (“CBCC”).  The U.S. did away with CBCCs and no longer issues lifetime waivers, however, those that were issued prior to the change in U.S. law remain valid so long as no new grounds of inadmissibility have arisen since the issuance of the CBCC.  
First time waiver applicants are not likely to receive a validity period of 5 years.  Rather, the first nonimmigrant waiver issued will usually be for a period of one (1) year.  Some first time waivers are only issued for six (6) months.  Others are issued for 2-3 year periods.  On average though, most first time applicants receive a nonimmigrant waiver for a period of one (1) year.  
Upon completing the adjudication process, the ARO will send its decision in writing directly to the applicant, with a copy to the attorney of record.  If the waiver application is approved, the ARO issues the waiver on a Form I-94.  The Form I-94 will state the validity period.  It will also state the permissible reasons that the waiver recipient may be entering the U.S. for.  In most cases, it will say “business and pleasure” but in some cases the activities will be restricted to “business only” or “pleasure only.”  
If the waiver application is denied, the ARO will issue a decision explaining the reasons for the denial.  The notice of denial will also advise the applicant of the right to appeal the AAO decision to the BIA within 15 days of the mailing of the denial decision.  See 8 C.F.R. § 212.4(b).  The denied waiver applicant also has the option to renew the waiver request before an Immigration Judge (“IJ”) if s/he is referred to the Executive Office for Immigration Review for removal proceedings and, if the IJ denies the application, that decision may also be appealed to the BIA.  See 8 C.F.R. § 212.4(b).

INA § 212(d)(3)(A)(i) Waivers – Applying for a Nonimmigrant Waiver at a U.S. Consulate
All foreign nationals who require a visa to enter the U.S. must apply for such visa at a U.S. Consulate abroad.  If the nonimmigrant visa applicant also requires a nonimmigrant waiver, the waiver application is also submitted at the U.S. Consulate with jurisdiction over the nonimmigrant visa application. 
Consular officers are employees of the U.S. Department of State (“DOS”), not the DHS.  While Consular officers have jurisdiction to grant or deny visa applications, as well as the discretion to recommend or reject nonimmigrant waiver applications, the DOS does not have jurisdiction to adjudicate nonimmigrant waiver applications.  As previously noted, all nonimmigrant waiver applications are adjudicated by the ARO.
The Consular officer still plays an important role in the nonimmigrant waiver process.  To begin with, the Consular officer must first determine whether the nonimmigrant visa applicant qualifies for the particular type of nonimmigrant visa that s/he is applying for.  If the nonimmigrant visa applicant does not qualify for the visa, then the nonimmigrant waiver stage is not even reached – the nonimmigrant waiver application is not even accepted and the applicant is sent home. 
If the applicant qualifies for a nonimmigrant visa but is inadmissible to the U.S. for other reasons (such as a criminal conviction or health reasons), s/he will be instructed by the Consular officer that s/he cannot be issued a visa unless s/he first obtains a nonimmigrant waiver.  In some cases, the applicant is instructed to return to the Consulate in person with a waiver application package, while others are instructed to mail the application back to the Consulate.  Upon identifying an applicable ground of inadmissibility, our office will prepare a nonimmigrant waiver application package in advance of the nonimmigrant visa appointment so that our clients can submit the waiver application package upon the Consular finding of inadmissibility, which will cut down on the length of time that the applicant must wait for a decision. 
One of the main differences in applying for a nonimmigrant waiver at a U.S. Consulate as opposed to at a port of entry is that there is no required form or filing fee when the nonimmigrant waiver application is submitted at the U.S. Consulate abroad.  See 8 C.F.R. § 212.4(a)(1).  While certain information is required to properly adjudicate a nonimmigrant waiver application, there are no required supporting documents, although there are certainly documents that it is advisable to submit.
Upon receipt of a nonimmigrant waiver application package, Consular officers review all application materials and then determine whether or not to recommend the waiver application to the ARO for approval.  See 22 C.F.R. § 40.301. 
The DOS Foreign Affairs Manual (“FAM”) states: 
The Congress, in enacting INA § 212(d)(3)(A), conferred upon the Secretary of State and consular officers the important discretionary function of recommending waivers of nonimmigrant visa ineligibilities to the Department of Homeland Security for approval. 
9 FAM 40.301 N1.  Consular officers are further instructed: 
You should not hesitate to exercise this authority when the alien is entitled to seek waiver relief and is otherwise qualified for a visa, and when the granting of a waiver is not contrary to U.S. interests. 
9 FAM 40.301 N1.  Before a Consular officer can recommend a nonimmigrant waiver application for approval, certain basic conditions must first be met.  Specifically: 
  1. The applicant is not inadmissible under INA § 214(b) [an intending immigrant]; 
  2. The applicant is not inadmissible under INA § 212(a)(3)(A)(i)(I), INA § 212(a)(3)(A)(ii), INA § 212(a)(3)(A)(iii), INA § 212(a)(3)(C), or INA § 212(a)(3)(E) [security-related grounds of inadmissibility; 
  3. The applicant is not seeking a waiver of nonimmigrants 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, otherwise, qualified for the nonimmigrant visa he or she is seeking.  
9 FAM 40.301 N2.  If these requirements are met, the Consular officer must then determine whether or not to recommend the nonimmigrant waiver application to the ARO for approval based upon the specific facts of the case. 
Consular officers are instructed that:
Eligibility for a waiver is not conditioned on having some qualifying family relationship, or the passage of some specified 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 are essential, you may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc. 
9 FAM 40.301 N3a. 
Consular officers are also advised to consider three (3) specific factors when deciding whether to recommend a waiver.  These factors, which can be found at 9 FAM 40.301 N3b, mirror the three (3) factors set forth by the BIA in Matter of Hranka.  
If the Consular officer is satisfied with the waiver application and has been persuaded to recommend it for approval, s/he will forward the waiver application together with a favorable recommendation to the ARO in the U.S.  Consulates communicate directly with the ARO electronically, which significantly reduces processing times.  9 FAM 40.301 PN1.  Nonimmigrant waiver applicants who apply at a U.S. Consulate usually only wait approximately 3-4 weeks for a response from the ARO. 
If the Consular officer does not want to recommend the waiver application for approval and the applicant wishes to pursue the application, the applicant can request that the Consular officer submit the case for an advisory opinion.  9 FAM 40.301 N6.1(b).  The denied applicant also has the option to accept the officer’s decision not to recommend the waiver application and to re-apply at a later date.  There is no limit on the number of nonimmigrant waiver applications that can be made at the Consulate (or the ARO).  
Whatever its decision, the ARO will notify the Consulate electronically.  The Consulate will then notify the applicant of the decision.  If approved, the nonimmigrant visa will be issued.  There is no physical form issued as documentation that the nonimmigrant waiver has been issued.  Rather, the nonimmigrant visa should contain a notation that a nonimmigrant waiver has been issued pursuant to INA § 212(d)(3). 
As mentioned above, applicants who are refused a nonimmigrant waiver may re-apply at a later date.  Before re-applying, however, it will be important to find out why the initial application was denied.  This will sometimes be explained by the Consulate but other times it will not be offered, which is when the applicant or his/her attorney will need to make an inquiry with the Consulate.  You can also submit a request pursuant to the Freedom of Information Act (“FOIA”) directly to CBP and specifically request ARO records.  Only after learning the specific reasons for the initial denial will you, or your lawyer, be in a better position to prepare a waiver application that can overcome the basis of the prior refusal. 
In support of a nonimmigrant waiver application submitted at a U.S. Consulate, our office puts together a comprehensive waiver application package that addresses both the Hranka factors (which the ARO must follow), as well as the factors that the Consular officers are required to consider under the FAM.  These factors are addressed in a legal brief, which is accompanied by a formal request for a favorable recommendation to the ARO. 
Our services also include the preparation of the accompanying nonimmigrant visa application and, perhaps most importantly, an interview preparation session with counsel so that the applicant understands the process, knows what t expect, and is prepared to make his/her best case for recommendation and approval to the Consular officer. 

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