Non-immigrant Waivers
Reasons for Inadmissibility
There are a variety of reasons why a person might be deemed inadmissible to enter the US. The most common grounds for inadmissibility are:
- prior history of criminal activities
- commission of fraud or a willful material misrepresentation in obtaining a US visa, and
- prior periods of unlawful presence in the US longer than 6 months, subjecting applicants to a mandatory 3 to 10 year bar from entering the US.
Except for individuals with inadmissibility findings related to security and other narrow areas, all other individuals barred from the United States can apply for a nonimmigrant waiver of inadmissibility. However, each case is unique and often requires a detailed analysis in order to determine the factual basis of inadmissibility, whether the consular decision was correct, the availability of a waiver, and the likelihood of a successful waiver application.
Who Can Apply?
An applicant for any type of nonimmigrant visa, such as B-2, F-1, H-1B, J-1, or L-1 who has been found inadmissible, can apply for a waiver of inadmissibility.
What is the Process?
A nonimmigrant waiver can be applied for at a US consulate in conjunction with a nonimmigrant visa application — no specific form is required. If the consulate approves the application, it forwards its recommendation to the Department of Homeland Security (DHS), which has the final say on these applications. If the consulate denies the application, the applicant may request the Department of State to review the application. If the Department of State denies the application, the case is closed. If it recommends approval, it forwards the application to DHS for its final determination.
The standards for granting a waiver for a nonimmigrant visa are relatively liberal: the consulate and DHS consider 1) the risk of harm to society if the individual is admitted; 2) the seriousness of his or her violation; 3) the reason that the individual is seeking admission; and 4) the recency of the violation. In addition, except for H-1B and L visa applicants, it is necessary for the applicant to overcome 214(b) of the Immigration and Nationality Act. This can be done by demonstrating the applicant’s ties to his or her homeland and affirming that he or she will return home after only a temporary visit to the United States.
How does White & Associates help?
Before applying for a waiver, it is imperative to understand the reason for a finding of inadmissibility and whether or not the finding is correct. If it is erroneous, then the finding should be challenged by requesting reconsideration and presenting additional evidence — the sooner, the better. Our VisaRefusal website catalogs dozens of cases in which we have been able to help individuals overcome erroneous findings of inadmissibility (http://visarefusal.com/case_studies/).
If the finding is correct, then the above listed standards must be analyzed and convincing evidence of rehabilitation should be prepared. The 214(b) burden must be overcome by applicants for visitor and student visas. This is important because rather than get to the merits of an application for a nonimmigrant waiver, the consul can find the applicant ineligible for a visa under 214(b).
At White & Associates, we can formulate a strategy for challenging a finding if appropriate, or representing your interests in preparing the visa and nonimmigrant waiver application. Many consuls and immigration lawyers are unfamiliar with the nonimmigrant waiver or the opportunities that it can afford. Therefore, it is imperative to seek out professional advice before commencing the process. Please contact us so that we may assess your case.