Working with a Australian trying to obtain a O-1 visa. The USCIS VSC requested proof a waiver has been granted or reason why a waiver is not required BEFORE they approve the petition. Have no doubts the waiver would be obtainable, just cannot get the Consulate to hear case prior to petition approval. The USCIS refuses to approve petition without waiver. Any suggestions as to whom is right (Consulate or USCIS) and what waiver is needed (i192?) and where it needs to be filed ?
Section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act provides that an alien who has been convicted of a controlled substance offense is inadmissible. This ground of inadmissibility can be waived by U.S. Customs and Border Protection (CBP). However, in order to obtain a waiver, the applicant must first apply for a visa at an U.S. Consulate and be refused by a consular officer who can then recommend to CBP that a waiver be issued.
Typically, when the ground of inadmissibility is known in advance (such as this), the application is submitted to the consular officer at the time of the visa interview who makes his reccommendation as to grant or deny and forwards the documents to CBP for processing. If the waiver is granted by CBP then the visa is issued. However, it can take 6 to 12 weeks for the waiver application to be processed.
In your case, the USCIS officer adjudicating the petition is wrong. Visa petition approval has nothing to with with whether an alien is inadmissible. The petition can be approved notwithstanding the fact that the alien has a criminal history. There are very limited exceptions to this rule (such as the Adam Walsh Act).
An experienced immigration lawyer should be able to assist you in resolving this. I recommend that you consult with one immediately as time is of the essence due to the RFE.
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