Foreign nationals who seek admission to the United States as a non-immigrant, such as pursuant to a non-immigrant visa or through the Visa Waiver Program (VWP), and are found to be inadmissible under section 212 of the Immigration & Nationality Act (INA) may be allowed to file a non-immigrant waiver pursuant to INA 212(d)(3). If this waiver is granted, the foreign national will be allowed to enter the United States on a temporary basis.
Whether or not a ground of inadmissibility should be waived for a particular non-immigrant visa applicant is decided by either the Admissibility Review Office (ARO) within the US Customs & Border Patrol in Washington D.C., or by the CBP district director who oversees the port of entry.
If the waiver is submitted at the port of entry, either because the applicant already has a valid travel document or is otherwise exempt from having to get one, the application should include forms I-192 and G-325A, along with the required filing fee. Because waiver applications are forwarded to the district director who oversees that particular port of entry, each waiver application should be filed at least a few months prior to the anticipated travel date. For those visitors who discover that they need a waiver only upon arrival at the border, the CBP officer has discretion to parole the person in for deferred inspection if there is reason to believe that the inadmissibility could be overcome with available evidence and a 212(d)(3) waiver.
If the waiver is filed abroad, the Department of State can decline to forward the waiver to the ARO for adjudication if they do not feel the case is waiver-appropriate. The decision to not forward the waiver is appealable to the Department of State. The waiver decision is discretionary and usually involves balancing negative aspects of the applicant’s case against positive factors such as purpose of the visit, rehabilitation (including having entered drug rehab for drug addiction), showing of remorse, and level of hardship that would be suffered if the waiver is denied. Generally, the more time elapsed since the offense, the better the chance that the waiver will be granted.
The adjudicating officer has broad discretion with regard to the waiver, and approvals should be liberally granted. In Matter of Hranka, the Board of Immigration Appeals (BIA) reversed a port of entry district director’s denial of a 212(d)(3) waiver submitted by a Canadian woman who had been previously deported from the US for prostitution and having admitted to previous heroin use and drug addiction. The applicant filed the waiver two years after being deported, wanting to re-enter the US to visit relatives. The district director denied the waiver, opining that insufficient time had elapsed to permit rehabilitation and citing that there were no compelling humanitarian reasons for the applicant to visit the United States. In reversing the District Director’s decision, the BIA found the woman’s proof of rehabilitation from drug addiction, letters from her mother in the United States, her high school administrators and a psychologist to justify granting of the discretionary waiver. Further, the BIA ruled that the reason for a visit need not be compelling. Rather, 212(d)(3) non-immigrant waiver adjudicators should weigh the risk of harm, seriousness of the bad acts, and importance of the reason for entry.
In determining whether or not to forward a waiver to ARO for adjudication, the Department of State and consular officials follow the BIA’s decision in Hranka and invite anyone to apply for a waiver, as long as the presence of the alien would not be detrimental to the United States. Accepted reasons for visiting the US include family visits, medical treatment, business conferences and tourism; no exceptional, humanitarian or national interest is needed. Unlike waivers for intending immigrants, non-immigrant waivers do not require a filing fee and, generally, need not be submitted on any particular government form if filed abroad.
A typical non-immigrant waiver packet should include an affidavit from the applicant which describes the reason he or she wishes to come to the United States and why they are inadmissible, gives the date of arrival, length of stay and number of intended entries. The applicant must also give details regarding previous waiver applications and whether or not they were granted. The applicant must also submit evidence regarding their particular ground of inadmissibility, both the good and the bad, so that the officer can perform the balancing test.
For crimes, certified copies of arrest reports, indictments/information, dispositions and sentencing must be included with the waiver; the adjudicating officer is not responsible for obtaining this information. Evidence that shows the good character and and favorable community reputation of the applicant is essential, as is evidence that the criminal has reformed an/or evidence related to rehabilitation efforts (therapy, counseling, drug rehab, alcohol rehab, enrollment in an addiction treatment center, employment records, education records, and evidence of community involvement).
If the applicant wishes to enter the United States for medical treatment, a letter from the applicant’s doctor which discusses the applicant’s condition, past and planned courses of treatment, and an explanation as to why particular treatment can’t be obtained outside US, is essential. Further, the applicant needs to show proof that payment arrangements have been made and that they will not require public funds. If the applicant has been barred due to a history of drug use or drug addiction, a letter from the applicant’s treating doctor which states whether, in the doctor’s opinion, the applicant continues to use or is still suffering from drug addiction, is essential.
Approval of the waiver may be good for only one entry and for as short as six months. Typically, approvals related to mental disorders, medical issues, communicable diseases, drug addiction, drug traffickers, crimes involving moral turpitude and prostitution are given single-entry waivers only.
Non-immigrant waivers for drug addiction
Amy Winehouse is a particularly easy target when discussing the devastating effects that drug abuse and alcohol addiction can have on an individual’s body, mind, family and career. Aside from the unfortunate title of her most popular song, in which she flatly refuses to enter a drug rehab program, she is a celebrity train wreck that one cannot help but gawk at.
In advance of the 2008 Grammy Awards, Winehouse applied for a visa so that she could travel from her home in the UK to the United States to attend the ceremony. Not only was she scheduled to perform at the show, but she had also been nominated in six categories. However, due to her drug addiction she was denied a visa by US authorities at the US Embassy in London.
Winehouse had been arrested in Norway for possession of marijuana the previous year. And, shortly before her visa was denied, a photograph was released which is believed to show her smoking crack. Although she entered drug rehab shortly thereafter, evidence of enrollment in an addiction treatment center wasn’t enough to overcome her inadmissibility issues.