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From Elaine Witty

Nonimmigrant Visa Waivers of Inadmissibility

INA 212(d)(3)

8 CFR 212.2 (I-192)and I-212 as alternatives), 212.4 (general), 235.2(b) (parole or deferred inspection is 212(d)(3) eligible), and 22 CFR 40.301

9 FAM 40.11 N.11, 40.301 (general)

Inspectors Field Manual (IFM) and USCIS Operations Instructions(OI):
IFM 17.5 and OI 212.4

Nonimmigrants may not use the waiver to overcome inadmissibility under sections 212(a)(3)(A), (C), and (E).

Waiver generally granted by ARO for one year for first two years and then on third try, will issue for perhaps maximum validity up to five years. The ARO may recommend a waiver for multiple applications for admission for a period of more than one year, but not to exceed ten years. 9 FAM 40.301 N6.2-3 [NOTE: The maximum grant by CBP will be five years.]

Matter of Hranka BIA leading precedent decision, 16 I&N Dec. 491 (BIA 1978)

Cite as "AILA InfoNet Doc. No. 99121671 (posted Dec. 16, 1999)" Memo from the Seattle District Director Richard C. Smith on the topic of parole authority which states:

In determining whether a waiver application is likely to be approved, the following guidelines should be considered. 212(D)(3)(A) provides for a waiver of inadmissibility in certain circumstances:

As a general guideline, waivers of inadmissibility are not granted until at least three (3) arrest free years after conviction and/or release from incarceration for minor convictions, such as Zero Tolerance, shoplifting, or simple possession of a small amount of marijuana; and five (5) years for more serious crimes, such as armed burglary or robbery, possession of narcotics, etc. Grave crimes, such as murder, smuggling or distribution of narcotics, sex crimes, or multiple crimes over a period of time will not only require a longer period of rehabilitation, but also persuasive evidence of reformation of character, before either a waiver or a parole should be approved.

212(d)(4) waiver at land border port of entry : Entry Document Requirement

Section 212(d)(3) cannot serve to waive the entry document requirements of nonimmigrants. Such a waiver is governed by INA 212(d)(4) through which both the Attorney General and the Secretary of State are given broad discretionary power to waive the prescribed documentary requirements for nonimmigrants. The waiver under section 212(d)(4) can be based on an unforeseen emergency in individual cases or even on reciprocity for certain noncitizens coming from foreign contiguous territory or adjacent islands, and for noncitizens covered by transit agreements.

From Jan Pederson

USCIS is expected to announce that I-601 petitions can be filed simultaneously with an I-130 petition, thus avoiding the necessity for a client to await abroad for the waiver process. If this model is implemented, the waiver would be approved before going to an immigrant visa interview. The benefits of this rumored procedural change promise to change the face of immigration in a positive way.