NIV Waivers
When an individual is found to be “inadmissible”, this means they are barred from entering the United States for various reasons, such as past criminal convictions, immigration violations, or health-related issues. However, for those seeking temporary entry into the U.S. through a nonimmigrant visa (like a tourist, student, or temporary work visa), a waiver of inadmissibility under Immigration and Nationality Act (INA) § 212(d)(3) can provide a path forward.
Joseph & Hall P.C. has a reputation for excellence in providing legal services to individuals facing complex immigration challenges. Our team guides clients through every step of the waiver process with a personal touch and superior customer service.
Overview of Nonimmigrant (NIV) Waivers of Inadmissibility
Unlike many immigrant waivers that require the applicant to have a qualifying U.S. citizen or permanent resident family member who would suffer extreme hardship, the nonimmigrant waiver under INA § 212(d)(3) is more flexible. It does not mandate a specific family relationship. Instead, it offers temporary relief, allowing an individual to enter the U.S. for a specific purpose and a limited time, despite their inadmissibility.
This waiver is a powerful tool because it can overcome nearly all grounds of inadmissibility. It is discretionary, meaning the decision to grant it rests with the immigration authorities, who review the case based on its individual merits.
Factors Considered in Waiver Decisions
When an officer reviews a nonimmigrant waiver application, they balance the positive and negative factors to make a determination. According to established legal precedent, the reviewing officer must consider three primary factors:
- The seriousness of the acts that caused the inadmissibility: The officer will examine the nature of the underlying reason for the inadmissibility. For example, a single, minor offense from many years ago will be viewed more favorably than recent, serious criminal activity.
- The risks of harm to society in admitting the applicant: This involves assessing whether the applicant poses a current threat to the health, safety, or welfare of the United States. Evidence of rehabilitation and good moral character can be crucial in mitigating perceived risks.
- The importance of the applicant’s reason for seeking entry: The applicant must present a legitimate and compelling reason for their visit. This could range from urgent business meetings and specialized employment to significant family events or necessary medical treatment. The more important the reason, the more weight it will carry in the decision.
Application and Processing Procedures for NIV Waivers
The application process for a nonimmigrant waiver varies depending on the applicant’s situation. Generally, the waiver request is submitted at the time of the nonimmigrant visa application at a U.S. consulate or embassy abroad. In some cases, particularly for individuals who do not need a visa to enter the U.S. (like Canadians), the application can be made at a U.S. port of entry.
While some situations require filing Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, most nonimmigrant waiver requests do not have a specific, required form. Instead, the applicant presents their case and supporting evidence directly to the consular officer during their visa interview.
If the consular officer finds the application favorable, they will typically recommend that the waiver be granted. The recommendation is then forwarded to the Admissibility Review Office (ARO) in the United States for a final decision. This multi-step review process can be lengthy, often taking several months to complete. Once the ARO makes a final decision, it is sent back to the consulate or port-of-entry to finalize the visa application process.
Schedule a Consultation
If you’re looking for immigration advice and assistance with a waiver of inadmissibility, you can get in touch with one of our immigration lawyers directly. The team at Joseph & Hall P.C. is here to help you present the strongest case possible.
