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Non-Immigrant Waiver Of Inadmissibility

Travel to the United States is not restricted to immigrants only. Those who wish to enter the United States temporarily must generally apply for non-immigrant visas. However, even in these cases, immigration officials may sometimes deny entry to the United States based on several reasons ranging from health to fraud or misrepresentation.

 

For those seeking to temporarily enter the United States despite facing a ground of inadmissibility, a Non-Immigrant Waiver of Inadmissibility may offer a solution. This waiver, described in Section 212(d)(3) of the Immigration and Nationality Act (INA), is extremely generous in that it waives certain grounds of inadmissibility which are not waivable in the immigrant visa context. However, to be granted one of these waivers, potential visitors to the United States should be fully aware of the nature of inadmissibility, non-immigrant status, and upon which issues a waiver might be granted. Here is a brief guide to Non-Immigrant Waivers of Inadmissibility:

Who Are Non-Immigrants?

Generally speaking, a “non-immigrant” is an individual who may be visiting the United States on a temporary basis. That includes:

Tourists

Patients seeking medical treatment

Temporary work or study

Business trips

There are some foreign nationals who are visa-exempt, such as Canadian citizens. These individuals may be able to apply in advance with the U.S. Customs and Border Protection (CBP) for a waiver of inadmissibility.

What is Inadmissibility?

Before fully exploring what these waivers will accomplish, it’s first important to define “inadmissibility” in this context. The U.S. Citizenship and Immigration Services (USCIS) defines “inadmissibility” as those individuals not permitted by law to enter the United States. Although “inadmissible” might mean something very different in a civil or criminal court setting, when it applies to immigration law, inadmissibility literally refers to the inability to admit someone into the United States on a legal basis.

As outlined by the INA, inadmissibility usually occurs on one of the following grounds:

Health

Inadmissibility due to health can include those with a communicable disease – admitting such an individual into the United States would then constitute a public health risk. Other issues can include mental health disorders that constitute a threat to the public safety or drug abusers and addicts.

Criminal Reasons

Inadmissibility due to health can include those with a communicable disease – admitting such an individual into the United States would then constitute a public health risk. Other issues can include mental health disorders that constitute a threat to the public safety or drug abusers and addicts.

Fraud or Misrepresentation

Identity fraud could suggest to immigration officials that there is some nefarious intent behind the visit to the United States, or at least some intent to hide potential issues from said officials.

Other Reasons

Include student visa abusers, alien smugglers, former U.S. citizens who renounced citizenship to avoid taxes, or people who have previously entered the country illegally.

Understanding inadmissibility is essential to not only gain context for why an individual might not be admitted to the United States, but understanding what a waiver of inadmissibility can require and which grounds of inadmissibility it can waive.

The Waiver of Inadmissibility pursuant to INA Section 212(d)(3)

A 212(d)(3) waiver can waive almost every ground of inadmissibility. The non-immigrant waiver is more generous than a waiver in the immigrant context. Furthermore, unlike the immigrant waiver, the non-immigrant waiver does not require the applicant to have U.S. Citizen or lawful permanent resident relative or showing of hardship.

 

Most applicants will file their waiver with a U.S. Consulate, before potentially forwarding it to the Admissibility Review Office (ARO) for a decision. The ARO is a sub-agency of the CBP responsible for deciding non-immigrant waivers. The decision to approve or deny a waiver is entirely discretionary, but the ARO must consider legal guidelines in reaching its decision. In Matter of Hranka, the Board of Immigration Appeals set forth three factors that must be considered in deciding whether to grant a 212(d)(3) waiver. These three factors are:

 

1) The risk of harm to society if the applicant is admitted;
2) The seriousness of the applicant’s prior immigration or criminal law violations (if any); and
3) The reasons for wishing to enter the United States.

Reeves Immigration Law Group

In short, applicants must submit a detailed, compelling request that establishes that their presence in the United States will be beneficial and will not pose a risk. It is important to submit the best possible waiver application along with supporting documentation. The attorneys at Reeves Immigration Law Group can help you prepare the best possible application and guide you through the entire process.

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