LEGAL GUIDE
Written by attorney Moses Apsan | Jan 30, 2011

THE WAIVER – Violators of US laws may still be eligible for a Visa

If you have violated the US immigration laws and want to enter the US with a non-immigrant visa there may be a waiver available. The section of the Immigration and Nationality Act (I.N.A.) that provides for a waiver is 212(d)(3). Non-immigrant visa holders are those who have entered the United States with permission, for a temporary period. Examples include tourist for business or pleasure, students, H-1B visa holders and other temporary workers, treaty traders and investors, intra-company transferees, and foreign government officials.

A waiver under this law allows visitors to temporarily enter the US even if they are found to be inadmissible. Some of the grounds that are covered by the waiver include permanent grounds of inadmissibility, such as fraud or criminal conduct, as well as some grounds that are limited in duration, such as previous unlawful presence.

For example: a visitor inadmissible because of a conviction for possession of less than one ounce of marijuana over 30 years ago may qualify or when the applicant had been convicted of petty theft (a misdemeanor) during a visit to the United States five years earlier.

The waiver involves a discretionary decision to be made by the Attorney General. The Attorney General has delegated this decision making power to the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS, formerly the Immigration and Naturalization Service). Therefore, although the person seeking the nonimmigrant visa will often apply to the U.S. Consulate office closest to where they reside, the application will in most cases be forwarded to USCIS.

The factors to be balanced by USCIS were discussed in a case called Matter of Hranka, decided in 1978. This case involved a person who had been deported in 1975 for having engaged in prostitution. Following her deportation she had returned to her home and apparently had become a contributing member to society. When she applied for a tourist visa she was denied because they stated sufficient time had not passed to demonstrate that she been rehabilitated and that her reasons for wanting to visit the United States were not sufficiently compelling. The Board of Immigration Appeals (BIA) decided that the alien was eligible for such a visa because the alien had been rehabilitated, despite the short period of time that had passed, and that she need not show compelling reasons for wishing to visit the United States.

In the Matter of Hranka the following factors were to be balanced in the discretionary adjudication process:

  1. The risk of harm to society if the alien is admitted;

  2. Seriousness of the alien's criminal or immigration violation or other ground of inadmissibility; and

  3. The alien's reason for wanting to come to the U.S.

In the Matter of Hranka, the relative seriousness of the grounds of inadmissibility were balanced against the minor risk of harm to society presented by admission of the alien because of her rehabilitation and her justifiable reasons for wanting to come to the United States.

In cases where a visitor knows in advance that he or she may be ineligible to enter the US, it is best to apply for the waiver contemporaneously with the filing of the visa application, instead of waiting until the visa application is denied.

A fee is generally not required when applying for the waiver, if the visa is being sought at a U.S. Consulate..

The other waivers available for persons seeking nonimmigrant visas cover fewer areas. One waiver is the I.N.A. section 212(d)(4) waiver for aliens not in possession of a passport, visa or border-crossing card, usually granted on the basis of an unforeseen emergency. Another waiver is the I.N.A. section 212(d)(1) waiver for government informers. A third waiver is the I.N.A. section 212(d)(3) waiver for victims of human trafficking or other victims of criminal activity. Waivers are also available under I.N.A. section 212(a)(9)(A)(iii) for aliens who have been previously removed or under I.N.A. section 212(a)(9)(C)(iii) for aliens who have entered without inspection. Both of these waivers require the passage of certain amounts of time since the alien last departed the United States, depending on the seriousness of the immigration law violation. Finally, a humanitarian waiver is available under I.N.A. section 212(d)(5) called discretionary parole. This provision allows for the temporary admission of aliens for “urgent humanitarian reasons or significant public benefit."

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