U.S. immigration laws very often may create obstacles for people who are found inadmissible due to their criminal history, bad moral character or unlawful overstay of their visas. Those people erroneously believe that no waiver is available to them or they are not eligible to obtain I-601 or I-601A waivers which would allow them to visit their families or loved ones. Fortunately, there is a very generous waiver (Hranka Waiver) available to many non-immigrants which would permit them to enter the United States where they could not do so when seeking an immigrant status. This waiver, described in Section 212(d)(3) of the Immigration and Nationality Act (INA), is extremely generous as it waives certain grounds of inadmissibility for non-immigrant applicants. If you are seeking to enter the U.S. on a nonimmigrant visa but are barred by one or more of the grounds of inadmissibility, the Hranka waiver may be for you.
NON-IMMIGRANT VS. IMMIGRANT STATUS
Any future applicant must understand a basic concept, understanding of which will clear any doubt, confusion or misunderstanding. Although easier to obtain than I-601/I-601A waivers, Hranka waiver is only available to applicants seeking nonimmigrant visas for a temporary visit, for example, tourist or business travel visas, student visas, H-1B professionals, L-1 intracompany transferees, etc. The key point is that if you are a prospective beneficiary of a petition seeking immigrant status (permanent residence/green card), you should instead refer to the I-601 or I-601A waivers. For example, if your spouse is a U.S. citizen and has filed a petition for permanent residence and you are found inadmissible due to entering the United States without being properly admitted.
THE HISTORY BEHIND THE HRANKA WAIVER
The Section 212(d)(3) waiver is known as the Hranka waiver because of an immigration court case from 1978, Matter of Hranka. In Hranka, the BIA held that the risk of harm presented by a young Canadian woman who had engaged in prostitution two years earlier was "very small." The BIA emphasized that the applicant had not committed other criminal or immigration law violations and found that the applicant had a "substantial reason for desiring a waiver" as she had many close relatives living in the U.S. (uncles and cousins). The most important part of the BIA decision, however, is that there is no requirement that the applicant's reasons for wishing to enter the U.S. be "compelling." Based upon the factors presented by the applicant, the BIA concluded that a nonimmigrant waiver should be granted. The BIA decision in Matter of Hranka has been controlling the adjudication of nonimmigrant waivers pursuant to INA ? 212(d)(3) for over 30 years.
WHAT IS THE HRANKA WAIVER?
As previously mentioned, in its determination the BIA took into consideration different factors. The case specifically lists three factors which must be taken into consideration when deciding whether or not a waiver should be granted: The risk of harm to society if a waiver applicant is admitted to the U.S. The seriousness of an applicant's prior criminal or immigration violations, if any, and The nature of the applicant's reason for wishing to enter the U.S. As highlighted above, an applicant's reason for wishing to enter the United States need not be "compelling." In other words, a person is not disqualified from obtaining the waiver merely because his reason is to visit a family member in the United States. The decision maker has wide discretion in deciding whether or not to grant the waiver. Essentially DHS will engage in a balancing test to see whether the totality of the circumstances weighs in favor of granting a waiver. DHS decisions cannot be appealed. Consequently, while the immigration authorities may deny a request for waiver, they may just as easily issue a favorable decision.
INCREASING THE LIKELIHOOD OF THE WAIVER BEING GRANTED
As previously mentioned, the DHS will engage in a balancing test to deny or grant a waiver. As an example of the balancing test, let us look at inadmissibility based on committing a crime in the past. The immigration authorities will take into consideration such factors as seriousness of the crime, the time that has passed since the commission of the crime, and applicant's rehabilitation, i.e., change in behavior represented by a new career path,marriage, family, volunteering, membership in community and religious organizations to name a few. In cases of inadmissibility based on overstaying a non-immigrant visa, the DHS will look at the reason for and the length of overstaying such visa. In general, it is recommended to show an important reason for wishing to obtain the waiver. For example, separation of family members, sickness or disability, or other humanitarian reasons.
APPLYING FOR A NONIMMIGRANT VISA WAIVER AT A U.S. CONSULATE
All foreign nationals not included in the visa waiver program must first apply for a visa to enter the U.S. If the foreign national is required to obtain a nonimmigrant visa waiver first, such document will be submitted at a U.S. Consulate in that person's country. The first step in the review process is completed by a consular officer (Department of State), who has discretion to recommend or reject a waiver application. First, however, the consular officer must determine if the applicant qualifies for the nonimmigrant visa. If there is a positive determination, the consular officer determines whether there is a need to apply for a nonimmigrant visa waiver due to inadmissibility based on a criminal conviction, unauthorized overstay or for health reasons. The consular officer has no authority to issue a decision regarding a waiver application. Generally, the consular officer will inform the applicant to return in person with a visa waiver application package. However, instructing a person to mail the application package is also not uncommon. When assisting your client, it is recommended to prepare a visa waiver package in advance so that it can be delivered to the consular officer right upon the finding of your client's inadmissibility. If the consular officer recommends that a visa waiver should be granted, the application is then electronically transferred to the Admissibility Review Office (ARO) which has jurisdiction to adjudicate the waivers. ARO generally makes a determination within 3-4 weeks from the date of the receipt of the consular officer's recommendation. If the Consular officer fails to recommend the waiver application for approval and the applicant wants 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 file a new application at a future date. Fortunately, there is no limit on the number of nonimmigrant waiver applications that can be submitted at the Consulate or the ARO. Lastly, applying for a nonimmigrant visa waiver at a U.S. Consulate does not require filing of a form or a filing fee. It is recommended, however, to prepare an organized and detailed brief supported by appropriate legal arguments and documentary evidence.
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