In this article, we consider the meaning of nonimmigrant visa (NIV) waiver, the factors the CO may consider in recommending NIV waiver, the procedure for requesting a waiver, processing times for deciding a waiver, etc.
What is a nonimmigrant waiver?
A waiver is in the nature of a temporary pardon. If you have broken US immigration laws in the past, you may not be allowed to come back to the US. A consular officer can ask the Department of State for a waiver on your behalf if he thinks you are eligible for the visa but can’t get it because you broke the rules in the past. The authority to recommend a waiver is found under INA 212(d)(3)(A)
How can I qualify for a waiver?
The decision to recommend a waiver is purely discretionary. A waiver can only be suggested by the consular officer or, in some high-profile cases, by the Secretary of State. You must be eligible for the visa you want for the CO to recommend a waiver. If you do not qualify, there is no basis for them to request a waiver for you. If the CO decides you’re eligible for the NIV but can’t give you a visa because you’re not eligible, they may look at your waiver request, taking into account the following:
- The recency and seriousness of the immigration violation: Generally, there is no specific time frame to determine recency. It is all assessed on a case-by-case basis. However, there is little chance the consular officer may recommend a waiver for applications made soon after the violation. Also, crime or fraud-related activities are usually negative considerations. In all, a balance of the positive and negative factors will influence how a consular officer may decide to recommend a waiver.
- The nature of the reasons for the visit: In requesting a waiver, you do not need to show that your reasons for the visit are “compelling.” The CO may recommend waivers for any legitimate purpose, such as family visits, medical treatment, business conferences, tourism, etc.
- The positive or negative effect of the planned travel on U.S. public interests: If the CO determines that your proposed travel may harm U.S. interests, a waiver may not be recommended. Conversely, if the proposed visit may impact U.S. public interests, this may be a positive consideration.
- Whether the violation is a single, isolated incident or a pattern of misconduct: It is for you to show that you have not committed other violations since the act that triggered the ineligibility. A pattern of misconduct is surely a red flag.
- Evidence of reformation or rehabilitation: The CO will assess any positive factors that may lead them to conclude that you are reformed and not likely to repeat similar actions in the future. It is for you to provide evidence in this regard.
How should I request an NIV waiver?
There is no specific form on which the application must be made. Nor is there a fee for a waiver. You must state your reasons for seeking the waiver and provide any applicable evidence. Depending on the reason for the disqualification, this could be an affidavit from a third party, a court or police record, a medical report, etc.
Where should I request the NIV waiver?
You must request the waiver at a US Embassy. There are two ways to do this. You may attend your NIV interview without your waiver request. If the CO decides that you are eligible for a waiver, they will refuse you under 221(g) or any other applicable law and ask you to come back later with your waiver request.
The other option, which is highly recommended, is to prepare your waiver application at the time of your NIV interview and tell the consular officer that you want to apply for a waiver. It is for the consular officer to determine whether they will recommend a waiver.
What happens if the CO accepts my waiver request?
By law, the CO cannot approve a waiver. They can only make a positive recommendation to the Department of State. If the CO determines that you are eligible to seek a waiver and they are willing to recommend one, they may send a recommendation to the Admissibility Review Office (ARO) for a determination. The ARO may only act on a positive recommendation from the CO; the CO will not send a request unless they are willing to send an affirmative recommendation.
How long does it take for a waiver request to be determined?
The average processing time for ARO cases is usually 60 days, but workload and other factors may impact the time. There are expedited requests, but they are only given to people who need to travel quickly for reasons like medical care or a death in their family, or when the U.S. government has a clear and important interest.
What is the validity period for a waiver request?
If your request for a waiver is approved, you may be able to enter the country more than once for up to 60 months. 60 months is the maximum period that may be approved for a waiver request.
Even if you have temporary or permanent inadmissibility, you might still be able to look into other ways to get around it. If you can meet the requirements, you may be able to ask for a waiver.