M is a citizen of a Visa Waiver Program country. She entered the US as a tourist to see her US boyfriend. Upon questioning at the US airport, she said that she only planned to stay a week to do some sightseeing. Before the allotted 90 days expired, she departed the United States. Two weeks later, she tried to return to the US, but upon her arrival, she was detained, interrogated, and returned back home. She was afraid that she would be permanently barred from the US for making a willful, material misrepresentation, so she retained our firm. We prepared a memorandum, acknowledging her initial willful misrepresentation, but evidencing how the misrepresentation was not material. The consular officer agreed, not finding her inadmissible under Section 212(a)(6)(C)(i).
Reasons for Inadmissibility
There are a variety of reasons why a person might be deemed inadmissible to enter the US. The most common grounds for inadmissibility are:
- prior history of criminal activities, such as drug possession or shoplifting;
- commission of fraud or a material misrepresentation in obtaining a US visa;
- accusations of alien smuggling;
- prior periods of unlawful presence in the US longer than 6 months, subjecting applicants to a mandatory 3 to 10 year bar from entering the US.
Except for individuals with inadmissibility findings related to security, unlawful activity and other narrow areas, all other individuals barred from the United States can apply for a nonimmigrant waiver of inadmissibility. It is important to know this, because often times a consular officer will not advise the visa applicant of this right. Each case is unique and often requires a detailed analysis in order to determine the factual basis of inadmissibility, whether the consular decision was correct, the availability of a waiver, and the likelihood of a successful waiver application.
Who Can Apply?
Except for security, unlawful activity, and other limited categories, any applicant for any type of nonimmigrant visa, such as B-1, B-2, E-1, E-2, F-1, H-1B, J-1, L-1, O-1, or P-1 who has been found inadmissible, can apply for a waiver of inadmissibility. Dependents of principal applicants, including F-2, H-4, and L-2, can also apply for and receive nonimmigrant waivers.
Nonimmigrant waivers are usually multi-entry and valid for up to 5 years. However, they are only valid for the applied-for visa category, i.e., a holder of a B-1/B-2 visa for which a waiver was granted needs to apply for a new waiver if applying for a new type of visa, such as F-1.
What is the Process?
A nonimmigrant waiver can be applied for at a US consulate in conjunction with a nonimmigrant visa application — no specific form or separate filing fee is required. If the consulate approves the application, it forwards its recommendation to the Department of Homeland Security, which has the final say on these applications. If the consulate denies the application, the applicant may request the Department of State to review the application in certain limited circumstances: for urgent humanitarian or medical reasons or when US foreign policy, national security, law enforcement, or public interest is implicated. If the consulate denies the application, the case is closed. If it recommends approval, it forwards the application to DHS for its final determination. Usually, DHS will concur and grant the waiver. If the waiver is granted, a visa is placed in the passport with the annotation that a waiver has been granted.
The standards for granting a waiver for a nonimmigrant visa are relatively liberal: the consulate and DHS consider
- the risk of harm to society if the individual is admitted;
- the seriousness of his or her violation;
- the reason that the applicant is seeking admission;
- the recency of the violation;
- whether the applicant has been rehabilitated.
The most important factors are the seriousness and recency of the violation. A conviction for possession of marijuana 10 years ago is much more likely to be approved for a waiver than a conviction for burglary last year. The purpose of the visit can also play an integral role in the decision. For example, there does seem to be a preference for granting waivers to those coming to the US to work or in sympathetic or borderline cases. For example, if a consul makes a decision to bar an H-1B applicant from India for alien smuggling his H-4 applicant wife, and the applicant made a legitimate claim and held a reasonable belief that the wedding ceremony undertaken legalized their marriage, the consul might ignore the applicant’s belief, invoke the alien smuggling bar, yet recommend a waiver as sort of a “compromise”. It is not necessary for the applicant to admit to wrongdoing to qualify for the waiver, although in certain instances, it may be helpful.
Before even requesting a nonimmigrant waiver, an applicant for any nonimmigrant visa, except for H and L visa applicants must meet, his burden under Section 214(b) of the Immigration and Nationality Act. For visitor and student visa applicants, this means that the applicant must demonstrate that he or she has ties to the home country and that he or she will comply with the terms and conditions of the visa. This is critically important because consular officers often use 214(b) as a legal means to short-circuit and prevent any application for a nonimmigrant waiver. Therefore, any submission should address the 214(b) issue first, and then the criteria for the granting of the nonimmigrant visa waiver.
How Does W&A Help?
Before applying for a waiver, it is imperative to understand the reason for a finding of inadmissibility and whether or not the finding is correct. If it is erroneous, then the finding should be challenged by requesting reconsideration and presenting additional evidence. If the finding is correct, then the above-listed standards must be analyzed and convincing evidence of rehabilitation should be prepared. As discussed above, the issue of 214(b) must be addressed for applicants of nonimmigrant visas except for H and L visas. At White & Associates, we can formulate a strategy for challenging a finding if such action is appropriate, or representing your interests in preparing the nonimmigrant waiver application and supporting documentation. Please feel free to contact us so that we may be able to assess your case.