New York Lawyer's Legal Updates

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

Author: New York Immigration attorney Alena Shautsova

Immigrant waivers such as I 601 or I 601A waive grounds of inadmissibility for those who seek adjustment of status or an Immigrant visa. They are difficult to obtain, as usually, an applicant must demonstrate extreme hardship to a qualifying relative. There is however a waiver for those who do not seek an immigrant visa or permanent resident status. It is a 212(d)(3)(A) waiver and it is easier to obtain than an immigrant waiver.

An 212(d)(3)(A) waiver would allow somebody who was deported and has not yet “served” 5/10 years outside of the United States to return to the US for a visit, or somebody who has a problematic conviction record t return to the US for non-immigrant purposes.

To obtain such a waiver, an applicant has to submit an I-192 form. The current processing time announced by the USCIS is 150 days (many cases, however, get “stuck” in processing for much longer). It must be noted that if an applicant asks to waive certain grounds in connection with one classification, he/she cannot use the same waiver for a different non-immigrant classification. However, it is possible to request a waiver for multiple classifications at the same time (this applies to Canadian citizens, as it is impossible to obtain multiple visas for entry when a visa in a certain classification is required). If a person who obtained a waiver desires to change his/her status in the United States, the waiver would be subject to DHS scrutiny for continuing validity.

The criteria that the USCIS established for the non-immigrant waiver was specified in the Matter of Hranka, 16 I&N Dec. 491 (BIA 1978):

  • The risk of harm to society if applicant is admitted;
  • The seriousness of criminal or immigrant law violation;
  • The applicant’s reason for seeking entry.

This non-immigrant waiver may waive almost all grounds for inadmissibility, except for inadmissibility based on political or security grounds. The waiver may have two variations: for those who do not have a valid visa, and for those who have a visa, but need a waiver. The waiver may be submitted with the CBP at the border.

Typically, the waiver is granted for a period of one or two years. USCIS has plans to start approving initial waivers for 5 years. An applicant who obtained a non-immigrant waiver, will still have to obtain an immigrant waiver in case he/she would like to obtain for an adjustment of status.

31 May 2016
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