Tempering Justice With Mercy: Waivers Of Inadmissibility In Consular Processing
by Brian Bolton
An inadmissibility finding by a U.S. Consular Officer is not necessarily the end of the road for aliens who wish to travel or immigrate to the United States. Various sections of the Immigration and Naturalization Act ("INA") provide waivers for most grounds of ineligibility, effectively allowing consular officials to "temper justice with mercy" by issuing restricted visas to aliens who would otherwise be barred from entering the United States.
Nonimmigrant cases make up the bulk of waiver requests. According to INA § 212(d)(3)(A)(i), NIV applicants may, under certain circumstances, be granted a visa even if they are found ineligible under one or more of the vast majority of the INA § 212(a) ineligibilities (the exceptions being the more-specifically focused bans against spies, saboteurs, perpetrators of genocide, or others whose entry to the United States would have serious adverse foreign-policy consequences).
NIV applicants may be found inadmissible in the context of their application interview, or the ineligibility may be pre-existing. In either case, the consular officer must refuse the application under the relevant section(s) of the INA. Recommending the case to the Department of Homeland Security for a waiver of ineligibility is a discretionary function of the consular officer. The Foreign Affairs Manual says that consular officers "should not hesitate to exercise this authority," as long as they do not consider the alien's travel to be "contrary to U.S. interests" (9 FAM 40.301 N1).
Without a consular officer's favorable recommendation for a waiver, it is unlikely that the applicant will receive a visa. According to at least four different FAM sections (9 FAM 40.301 N6.1(b), 9 FAM 40.301 N6.2(a)(2), 9 FAM 40.301 N6.2-1, and 9 FAM 40.301 N6.2-2(a)), consular officers who do not support individual waiver cases should refer them to Department of State headquarters, particularly if the applicant (or his/her representative) requests consideration for a waiver. Even so, this "second bite at the apple" is widely viewed as an ineffective option, since DOS headquarters usually upholds the consular post's initial judgment that the case does not merit a recommendation for a waiver.
Therefore, in order for a waiver case to be successful, it is crucial to obtain a positive recommendation from the consular officer. Per the FAM, the criteria to be used in making this decision are the recency and seriousness of the violation, the reasons for the applicant's travel, and the positive or negative effect of the travel on U.S. public interests (9 FAM 40.301 N3(b)). The FAM states that there is no requirement for the passage of a specific amount of time in order for the violations not to be considered "recent"; nevertheless, consular officers often regard the first five years after the alien's last offense, conviction, or reintegration into society as too "recent" a timeframe for a waiver to be appropriate.
Consular officers typically view "seriousness" through the prism of violence. Murder, rape, sexual assault, or attacks against the defenseless are rarely successful as waiver cases. The concept of seriousness is also relevant to cases where there are multiple convictions (or even multiple arrests) for less-significant crimes such as theft or possession of a soft drug.
In practice, the criterion relating to the "reasons" for the applicant's travel to the United States means that applications for H-1B, L-1, or O-1 visas from inadmissible aliens are usually more successful than B-1/B-2 cases in which an ineligible applicant wants to take the family to a theme park. Nevertheless, 9 FAM 40.301 N3(a) instructs consular officers that they "may recommend waivers for any legitimate purpose such as family visits, medical treatment (where or not available abroad), business conferences, tourism, etc."
Clearly, an ineligible alien whose travel to the United States would have a significant "negative effect" on public interests is unlikely to be recommended for a waiver. In contrast, applicants should not hesitate to point out the potential positive effects of their travel, if applicable, such as the signing of business agreements that will favor American exporters.
A consular officer's recommendation for a waiver of ineligibility becomes part of the electronic record associated with the alien's application. Scanned documents, such as the applicant's police record (or lack of one), are also included. Customs and Border Protection adjudicators at the Admissibility Review Office ("ARO") in Herndon, Virginia, have the final say on whether the waiver is granted, as well on the particular conditions of the waiver, such as validity period, number of entries, and period of authorized admission.
With the advent of the ARO, final waiver decisions are typically made rapidly and uniformly, in keeping with the office's mission to be "a dedicated resource with institutional knowledge and a consistent approach in making determinations of admissibility." A consular post recommending a wavier can usually expect a response - either positive or negative - from the ARO within two weeks. If ARO approves the waiver, then the consular post proceeds to issue the visa, which must be annotated to show the section of the law under which the alien is inadmissible, the section of the INA under which the ineligibility is waived, and any special conditions for the bearer's travel.
The FAM instructs consular posts to remain consistent in recommending waivers for individual aliens. "If you requested a wavier for a particular applicant in the past, you should do so for future applications, unless there is new derogatory information, a material change in purpose of their trip, or some other material change in circumstances" (9 FAM 40.301 N6.4). Thus, an alien who is successful in the waiver process on one occasion can anticipate having continued access to a visa - as long as he or she stays out of trouble.
Waivers of ineligibility for immigrant visas rely on completely different sections of the INA. Indeed, there several types of inadmissibility (such as controlled-substance trafficking) where no waiver is available to immigrants, or where the applicability of a waiver is severely limited (such as misrepresentation, where the alien's immediate family must include an American citizen ("Amcit") or legal permanent resident ("LPR") who would suffer "extreme hardship" if the alien is not admitted to the United States).
In contrast to the NIV waiver process, there is a special form (I-601) that IV applicants must complete in order to be considered for a waiver. Given the stringent requirements of documenting "extreme hardship," the affected Amcit or LPR is best advised to submit a supporting letter along with the form.
The consular officer collects these documents, conducts a special waiver interview, and forwards the entire packet to the USCIS overseas office with jurisdiction over the consular post. Processing times for IV waivers are very lengthy, and applicants should be prepared to wait a year or more for an answer. Ciudad Juarez's pilot program for "clearly approvable" waivers - which can produce positive outcomes in less than a week - is a notable development, but so far this approach has not been duplicated elsewhere.
Conceived to facilitate legitimate travel while keeping dangerous or unwelcome visitors at bay, U.S. immigration law specifies complex classes of aliens who are legally barred from entering the country. Nevertheless, Congress recognized the need to leave some room for exceptions to the rules, and thus the waiver was born. This provision, when judiciously applied, offers an important "second chance" for visitors and immigrants who have previously run afoul of the law but are now ready for a fresh start.
Brian Bolton is Consular Affairs Specialist at Liam Schwartz & Associates. A former Foreign Service Officer, Brian has worked at U.S. Embassies in Mexico City, London, and Tel Aviv, as well as serving in the Department of State in Washington, DC. He holds a degree in linguistics and cognitive science from the University of Virginia. Brian may be reached at: Brian@lsa-law.com
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