Non-Immigrant Waiver (212(d)(3))

GENERAL WAIVER FOR NONIMMIGRANTS

Who Can Apply?

The Non-Immigrant waiver is available to individuals applying for nonimmigrant visas at US consular offices and to those applying for admission as nonimmigrants at the border. It waives virtually all grounds of inadmissibility for nonimmigrants, including health, criminal, prostitution, smuggling, and unlawful presence. The only grounds of inadmissibility it does not waive are certain security grounds making inadmissible those engaged in espionage, sabotage, genocide and Nazi persecution. Other security grounds of inadmissibility may be waived, including for potential terrorists.

Criteria for granting

The government has broad discretionary power to grant these waivers. While the statute itself does not indicate standards for the exercise of discretion, in practice, the decision depends on a balancing of favorable and adverse factors. Specifically, the adjudicators will look at the following three factors:

Extreme Hardship to the applicant or his or her children will only be considered if the applicant qualifies for immigrant status as a battered spouse or child.

(1) Is there a risk of harm to the United States if the applicant is admitted
(2) The seriousness of the applicant’s prior violation( s) of immigration or criminal law and
(3) The applicant’s reasons for seeking entry into the United States

In addition, where the inadmissibility stems from misconduct, the adjudicators will look for remorse and reform, the length of time since the offending act and the applicant’s positive contributions to the community.

Application Procedure

Individuals who require nonimmigrant visas to enter the United States must apply for the waiver at the consulate with jurisdiction over their visa application. The consular officer will review the applicant’s visa application, make an initial finding of inadmissibility and ask them to return with the waiver request and supporting materials. There is no formal application or fee to apply for the waiver. The consular officer interviewing the applicant must review the waiver application and submit it with a recommendation to to the Admissibility Review Office (“ARO”), which is part of Customs and Border Protection (“CBP”) in Northern Virginia. The ARO will notify the consular officer whether the waiver application has been approved or not. If the waiver is approved, the consular officer may issue the visa. The waiver may be valid for one or for many entries. A single entry authorization is valid for a maximum of six months. Multiple entry authorizations are usually valid for 1 year, although a consular officer may recommend multiple entry authorizations that are valid up to 5 years.

Canadian citizens are exempt for the requirement to obtain a nonimmigrant visa in most cases. As a result, they usually apply for a nonimmigrant waiver directly with Customs and Border Protection at the port of entry.