9 FAM 305.4
(U) Processing Waivers
(CT:VISA-774; 05-06-2019)
(Office of Origin: CA/VO/L/R)
9 FAM 305.4-1 (U) Statutory and
Regulatory Authorities
9 FAM 305.4-1(A) (U)
Immigration and Nationality Act
(CT:VISA-31; 12-30-2015)
(U) INA 212(a) (8 U.S.C. 1182(a));
INA 212(d)(3)(A) (8 U.S.C. 1182(d)(3)(A); INA 212 (h) and (i) (8 U.S.C. 1182(h)
and (i)); INA 214(b) (8 U.S.C. 1184(b)).
9 FAM 305.4-1(B) (U) Code of
Federal Regulations
(CT:VISA-31; 12-30-2015)
(U) 22 CFR 40.301.
9 FAM 305.4-2 (U) Processing INA
212(d)(1) Waivers
(CT:VISA-31; 12-30-2015)
(U) [Reserved.]
9 FAM 305.4-3 (U) Processing INA
212(d)(3)(A) Waivers
9 FAM 305.4-3(A) (U) Department
of State's INA 212(d)(3)(A) Waiver Authority
(CT:VISA-567; 04-06-2018)
(U) The Congress, in enacting INA
212(d)(3)(A), conferred upon the Secretary of State and consular officers the
important discretionary function of recommending waivers for nonimmigrant visa
(NIV) ineligibilities to the Department of Homeland Security (DHS) for
approval. You should not hesitate to exercise this authority when the alien is
entitled to seek waiver relief and is otherwise qualified for a visa, and when
the granting of a waiver is not contrary to U.S. interests. The proper use of
this authority should serve to further our immigration policy supporting
freedom of travel, exchange of ideas, and humanitarian considerations, while at
the same time ensuring, through appropriate screening, that our national
welfare and security are being safeguarded.
9 FAM 305.4-3(B) (U) Criteria
for Waiver Recommendation
(CT:VISA-82; 03-04-2016)
(U) The following conditions must be
met before an INA 212(d)(3)(A) waiver can be recommended or granted:
(1) (U) The applicant is not
inadmissible under INA 214(b);
(2) (U) The applicant is not
inadmissible under INA 212(a)(3)(A)(i)(I), INA 212(a)(3)(A)(ii), INA
212(a)(3)(A)(iii), INA 212(a)(3)(C), INA 212(a)(3)(E)(i), or INA
212(a)(3)(E)(ii);
(3 (U) The applicant is not
seeking a waiver of nonimmigrant documentary requirements of INA 212(a)(7)(B),
which may only be waived under the provisions of INA 212(d)(4). (See 9 FAM 201.1.);
and
(4) (U) The applicant is,
otherwise, qualified for the nonimmigrant visa (NIV) he or she is seeking.
9 FAM 305.4-3(C) (U) Factors to
Consider When Recommending a Waiver
(CT:VISA-774; 05-06-2019)
a. (U) You may, in your
discretion, recommend an INA 212(d)(3)(A) waiver for any nonimmigrant whose
case meets the criteria of 9 FAM
305.4-3(B) above and whose presence would not be harmful to U.S. interests.
Eligibility for a waiver is not conditioned on having a qualifying family
relationship, or the passage of a specific amount of time, or any other special
statutory threshold requirement. The law does not require that such action be
limited to humanitarian or other exceptional cases. While the exercise of
discretion and good judgment is essential, you may recommend waivers for any
legitimate purpose of travel.
b. Unavailable
c. (U) You should consider the following factors, among others,
when deciding whether to recommend a waiver:
(1) (U) The recency and
seriousness of the activity or condition causing the alien's inadmissibility;
(2) (U) The reasons for the
proposed travel to the United States; and
(3) (U) The positive or
negative effect, if any, of the planned travel on U.S. public interests.
(4) (U)
Whether there is a single, isolated incident or a pattern of misconduct;
and
(5) (U)
Evidence of reformation or rehabilitation.
d. (U) Explain your complete reasoning for recommending a waiver
in the comments section of ARIS (the Admissibility Review Information System), including
identifying any factors that lead you to conclude the applicant has been
rehabilitated and unlikely to repeat actions that led to the ineligibility as this
information will be considered by CBP's Admissibility Review Office ("ARO").
9 FAM 305.4-3(D) (U)
Consistency in Requesting a Waiver
(CT:VISA-567; 04-06-2018)
(U) You must maintain consistency
in your waiver recommendations. If another consular officer requested a waiver
for a particular applicant in the past, you should do so for future
applications, unless there is new derogatory information, a material change in
the purpose of their trip, or some other change in circumstances relevant to
the factors to be considered under INA 212(d)(3)(A). Although you must
maintain consistency in recommendations it does not guarantee that the ARO will
approve subsequent waivers.
9 FAM 305.4-3(E) (U) Referral
of Waiver Recommendations
9 FAM 305.4-3(E)(1) (U) When
to Submit Waiver Recommendations to the Department of Homeland Security (DHS) /
Customs and Border Protection (CBP)
(CT:VISA-774; 05-06-2019)
a. (U) With the exception of
those cases described in 9 FAM
305.4-3(E)(2) below, and cases involving K and V nonimmigrants, you must
submit INA 212(d)(3)(A) waiver recommendations to the CBP Admissibility Review
Office (ARO) via ARIS, using the CCD. If you have an ineligible K or V nonimmigrant visa applicant, you may refer
the applicant to Form I-601, Application for Waiver of Grounds of
Inadmissibility, or Form I-212, which the
applicant may wish to file with United States Citizenship and Immigration
Services (USCIS) or CBP. (See 9 FAM
303.3-5(B).)
b. (U) If you do not believe
that the alien should be admitted temporarily due to the ground of
inadmissibility (i.e., if you do not want to recommend a waiver), do not submit
an ARIS waiver recommendation to the ARO. Rather, inform the applicant that
you have found him or her ineligible for a visa and advise the applicant
whether a waiver is available under the law. In those cases where a waiver is
available but you decline to recommend one, you should inform the applicant
that he or she is ineligible, citing the relevant sections of law, but that you
will not recommend a waiver. INA 212(d)(3)(A) states
that a nonimmigrant waiver cannot be approved by the ARO without a positive
recommendation from either the Consular Officer or the Secretary of State.
Therefore, those cases which do not have an affirmative recommendation by
either the Consular Officer or the Department should not be submitted to the
ARO's office via ARIS. In some rare cases where the Consular Officer does not
wish to recommend a waiver, the Department of State can also make the
recommendation independently of post (see 9 FAM
305.4-3(E)(2)).
9 FAM 305.4-3(E)(2) (U) When to Submit Applications to the Department
for Review
(CT:VISA-774; 05-06-2019)
a. (U) If you do not recommend
that an alien be granted a waiver but the applicant or an interested party requests one, you must only refer the waiver request to the Department for
review if you have reason to believe that the applicant's travel meets one of
the five criteria listed below. You are not required to refer the waiver
request to the Department if the applicant requests a waiver but you assess
that the applicant's travel does not meet one of the five criteria below.
Supervisor concurrence is required when finding that the applicant's waiver
request does not meet one of the listed criteria:
(1) (U) Foreign Relations: Refusal of the nonimmigrant visa application would
become a bilateral irritant or be raised by a foreign government with a high-ranking
U.S. government official;
(2) (U) National Security: Admission to the United States would advance a U.S.
national security interest;
(3) (U) Law Enforcement: Admission to the United States would advance an important U.S. law enforcement objective;
(4) (U) Significant Public Interest: Admission to the United States would advance a
significant U.S. public interest; or
(5) (U) Urgent Humanitarian or Medical Reasons: Admission to the United States is warranted due to
urgent humanitarian or medical reasons.
b. (U) If a
nonimmigrant visa applicant has requested a waiver of a ground of
inadmissibility other than one described in paragraph (e), and you have reason
to believe that the travel meets one of the criteria listed above, you must
request an Advisory Opinion from CA/VO/L/A
through the NIV System. You may not refuse an alien's request to submit the
waiver request to the Department if you have
reason to believe that the travel meets one of the five criteria.
c. (U) Do not
submit the waiver request through ARIS. The AO must include the reasons
why you do not wish to recommend a waiver and an
explanation of why you believe the applicants travel meets one of the five listed criteria. Before submitting an AO of
this type, you must be sure that the case notes
include a clearly articulated reasoning as to why the applicant is
ineligible.
d. Unavailable
e. (U)
You cannot submit a waiver recommendation to DHS if you are required to first submit the waiver to the Department.
f. Unavailable
(1) (U) Any case in which you
have doubts as to whether an INA 212(d)(3)(A) waiver recommendation is
warranted but believe the Department may have pertinent information not
available to you;
(2) Unavailable
(3) (U) Any case in which the Secretary of State previously
declined to recommend, or the Attorney General or Secretary of Homeland
Security, to grant, an INA 212(d)(3)(A) waiver to an alien (i.e., any case
where an alien's waiver was previously denied by the ARO.);
(4) (U) Any case in which the alien's presence or activities in
the United States might become a matter of public interest or of foreign
relations significance; or
(5) (U) Any case where the alien's failure to
qualify for a visa might become a matter of public interest or of foreign relations significance.
g. (U) You must
refer the following category of cases to the Department after declining to
recommend a waiver: Any case, regardless of the ground of inadmissibility, in
which the alien or the alien's representative (e.g., family member, attorney)
requests that a waiver be considered, so long as the request is made within one
year of the visa refusal and you have reason to believe that the applicants
travel meets one of the five criteria listed in 9 FAM 305.4-3(E)(2) paragraph a.
h. (U) As a reminder, you should report fraud or any other
criminal immigration violation to the responsible Immigration and Customs
Enforcement (ICE) or other DHS Attach, through the appropriate channels.
9 FAM 305.4-3(F) (U) Waiver Expedite
Requests
(CT:VISA-774; 05-06-2019)
a. (U) Expedite requests must
be reserved for cases with an urgent humanitarian need for travel, such as
medical treatment or a death in the applicant's family and cases where there is
clear and significant U.S. government interest. The expedite request should
include specific dates (of meetings, funerals, etc.) whenever possible. ARO has
advised that they will not expedite cases in which applicants fail to apply
well in advance of their intended travel dates. You
may contact CA/VO/F for assistance and advice on potential expedite
requests.
b. (U) Consular officers may
select to have the ARIS waiver request expedited by choosing that option on the
electronic waiver form and providing a justification meeting criteria stated
above. If a case has already been submitted to the ARO and Post later
determines that it needs expedited processing, then Posts should contact the VO/F
officer with the NIV waiver portfolio for assistance. Please refer to the Visa
Office Who's Who page for the appropriate point of contact.
9 FAM 305.4-3(G) (U) Waiver
Validity Requests
9 FAM 305.4-3(G)(1) (U) In
General
(CT:VISA-567; 04-06-2018)
a. (U) If you determine that an
alien meets the criteria for a waiver as set forth above, you may recommend a
waiver valid for multiple applications for admission for a period of five
years; i.e., 60 months. Generally, CBP/ARO will grant a 60 month, multiple
entry waiver to first time waiver recipients, with exceptions. Note that 60
months, multiple entries is the maximum waiver validity that the ARO can grant
by regulation. [Exception: The maximum waiver validity that the ARO can grant
for a C1/D visa is 24 months.] You must manually limit the validity of the
visa to the validity of the waiver.
b. Unavailable
9 FAM 305.4-3(G)(2) (U) Waiver
Authorizing Multiple Entries and/or a Period of Validity that Exceeds
Reciprocity
(CT:VISA-774; 05-06-2019)
(U) If CBP/ARO grants a waiver for
more entries or a longer period than the appropriate visa reciprocity schedule
specifies:
(1) (U)
Issue the visa for not more than the number of entries and validity
period listed in the reciprocity schedule (For example, if DHS grants a waiver
for multiple entries for a six-month period and the reciprocity schedule calls
for one entry of three months, issue the visa for one entry, three months).
(2) (U)
You may not use the remaining period of time authorized under the terms
of the approved waiver to issue a new visa without submitting a new waiver
request. An approved ARIS waiver request for temporary relief is inseparable from
the underlying NIV application and is not transferrable to another NIV
application under any circumstances. (For example, an applicant for a
temporary worker visa that receives a waiver approved for multiple entries
spanning a 60 month period who is only issued a 12 month visa due to the
reciprocity schedule/petition validity cannot be issued another visa based on
the approved waiver under the assumption that the waiver remains valid for 48
more months.) Contact the CA/VO/F officer for assistance and advice on matters
regarding waiver validity.
9 FAM 305.4-3(G)(3) (U)
Aliens Who Should Not be Recommended for a Multiple Entry Waiver
(CT:VISA-567; 04-06-2018)
Unavailable
(1) Unavailable
(2) Unavailable
(3) Unavailable
(4) Unavailable
(5) Unavailable
9 FAM 305.4-3(H) (U) Submitting
Waiver Recommendations
9 FAM 305.4-3(H)(1) (U) Submitting
a Single Waiver Request
(CT:VISA-567; 04-06-2018)
(U) To submit INA 212(d)(3)(A)(i)
waiver recommendations , you must use the Admissibility Review Information
Service (ARIS) review form, available through the NIV applicant information
screen. Consular officers and managers may both initiate and submit new waiver
requests. Consular officers may also update and submit waiver requests with a
status of "Pending Manager Approval." Locally Engaged staff with the
Senior FSN Role may only initiate the ARIS process before sending them to an
officer for approval.
(1) (U) From the NIV Applicant
Clearance window, users can click the "ARIS Waiver Request" button
located at the bottom of the window, which will retrieve the ARIS Waiver
request form . Once the form is completed, users will open the action
drop-down list to submit the request.
(2) (U) Before creating an ARIS
waiver recommendation, the applicant must be refused under all applicable
grounds of ineligibility. You must refuse the applicant under all
grounds of ineligibility that apply, and not simply 221(g) the case while the
waiver request is pending. Applicants who are ineligible under INA 214(b) have no waiver available to them under the law,
so when adjudicating the case of an applicant who is ineligible under both INA
214(b) and an INA 212(a) ineligibility, do not submit an ARIS waiver
recommendation since the INA 214(b) ineligibility
is not waivable.
(3) (U) You must scan all relevant
supporting documents into the NIV case. Depending on the ineligibility, this
may include police/court records, OF-194, panel physician evaluation, copy of
an approved petition, etc. Any document in a foreign language must be
accompanied by an English translation. Applicants who present documents in a
language other than English should be asked to provide translated copies of
such documents before proceeding with the case. You must clearly label
supporting documents scanned into the case, and refer to them in the case
notes. If records no longer exist post must explicitly state so in the
comments section of ARIS.
(4) (U)
The ARO will review the waiver recommendation and submit the response to
post through the CCD.
(5) (U)
For more information on processing the ARIS request, see Chapter 19 of
the NIV User Manual.
(6)
9 FAM 305.4-3(H)(2) (U)
Submitting Multiple Recommendations for Applicants with Multiple Visa Classes
(CT:VISA-567; 04-06-2018)
(U) When an applicant with a visa
ineligibility submits a visa application for multiple visa classes (e.g., B1/B2
combined with C1/D) simultaneously, post will need to submit an ARIS waiver
request for each visa class separately.
(1) (U) Initially Post must
submit an ARIS waiver request for one of the classifications (e.g. B1/B2) and
after obtaining approval should submit another request using the same visa
control number for the other visa classification(s).
(2) (U) Post should also
select 'Yes' to having the second waiver request expedited and provide a
justification to inform the ARO that the applicant has multiple visa classes under
one single application and has already received a waiver for one of the
classifications.
9 FAM 305.4-3(I) (U) Monitoring
Submitted Waiver Recommendations
(CT:VISA-567; 04-06-2018)
(U) Response times for ARIS
waivers average 60 days but fluctuate based on ARO's workload. Posts can check
on the status of a waiver request through the NIV ARIS Request window and the
NIV Clearance window. ARO uses the ARIS waiver request form to communicate
with post so you should monitor the responses in order to help facilitate the
processing of the case to conclusion. Email alerts can be set up to notify you
when post receives a response to an ARIS waiver using the ARIS menu within CCD:
(1) (U)
Select the "Admissibility Review Information Service" option
in CCD.
(2) (U)
Select "ARIS Email Maintenance", and enter the email address
of those that you would like to receive notifications when a response for an
ARIS waiver is received.
9 FAM 305.4-3(J) (U) Name Check
Requirements
(CT:VISA-339; 04-13-2017)
(U) See reciprocity schedule for
individual countries.
9 FAM 305.4-3(K) (U)
Annotations for INA 212(d)(3)(A) Cases
(CT:VISA-339; 04-13-2017)
(U) You must comply with all
"Conditions of Waiver" noted by ARO in ARIS after an approved waiver
decision is returned to post. Visas with approved waivers must be annotated
with the "Grounds for waiver" information as it appears in ARIS
(generally "212(d)(3)(A): [insert ineligibility waived]").
9 FAM 305.4-3(L) (U) Processing
Waiver Recommendations for Government Grantees
(CT:VISA-567; 04-06-2018)
Unavailable
9 FAM 305.4-3(M) (U) INA
212(d)(3)(A) Waiver of Medical Ineligibilities
(CT:VISA-339; 04-13-2017)
(U) For information regarding an
INA 212(d)(3)(A) waiver of a medical ground of ineligibility for an alien
proceeding to the United States to undergo medical treatment, see 9 FAM
302.2-5(D)(2), 302.2-6(D)(2), 302.2-7(D)(2) and 302.2-8(D)(2).
9 FAM 305.4-3(N) Unavailable
(CT:VISA-567; 04-06-2018)
Unavailable
9 FAM 305.4-3(O) (U) Posting of
Bonds in Certain Cases
(CT:VISA-339; 04-13-2017)
(U) Whenever the posting of a
departure bond is required by DHS in connection with INA 212(d)(3)(A) action,
the bond is to be posted at the time the alien applies for admission into the
United States; you should not require evidence that the bond has been filed as
a condition of visa issuance.
9 FAM 305.4-4 (U) Processing
Consent to Reapply through ARIS and Filing I-212, Filing I-192s and
Communicating with CBP, ARO
9 FAM 305.4-4(A) (U) In General
(CT:VISA-774; 05-06-2019)
(U) An
applicant who is ineligible under INA Sections 212(a)(9)(A)(i) (9A1),
212(a)(9)(A)(ii) (9A2), or 212(a)(9)(C) ("9CP") will be ineligible
unless the Attorney General or the Secretary of Homeland Security consents to
the applicant reapplying for admission to the United States. The ARO is the
office in the Department of Homeland Security with the authority to adjudicate ARIS waiver recommendations for nonimmigrant
applicants and also the Form I-212, Application for Permission to Re-apply for
Admission Into the United States After Deportation or Removal (known as
Consent to Reapply or CTR).
9 FAM 305.4-4(B) (U) Requesting
Consent to Reapply (CTR) and Filing an Form I-212 with CBP
(CT:VISA-774; 05-06-2019)
a. Unavailable
b. Unavailable
(1) Unavailable
(2) Unavailable
c. Unavailable
9 FAM 305.4-4(C) (U) Processing
Form I-192s
(CT:VISA-567; 04-06-2018)
a. (U) A
Form I-192 is an Application for Advance Permission to Enter as a Nonimmigrant
and is used for applicants who are:
(1) (U)
Inadmissible nonimmigrant(s) already in possession of appropriate travel
documents.
(2) (U)
Applying for T nonimmigrant status; or applicants for U nonimmigrant
status.
b. (U) Only
DHS has the authority to adjudicate I-192 applications.
c. (U) Applicants
seeking guidance on I-192 processing should contact CBP directly.
9 FAM 305.4-4(D) (U)
Communicating with the ARO
(CT:VISA-567; 04-06-2018)
a. Unavailable
b. Unavailable
9 FAM 305.4-5 (U) Processing
212(e) Waivers
(CT:VISA-339; 04-13-2017)
(U) See 9 FAM
302.13-2(B)(1).
9 FAM 305.4-6 (U) Processing
212(g) Waivers
(CT:VISA-339; 04-13-2017)
(U) See 9 FAM
302.2-5(D).
9 FAM 305.4-6(A) (U) Waiver
Application for Immigrant Visa Applications
(CT:VISA-567; 04-06-2018)
a. Unavailable
b. (U) If you determine that
the ineligibility grounds associated with an individual have a waiver available
under the law, you may instruct the applicant that he or she may be eligible to
file an I-601 waiver. If the applicant is interested, you should refer the
individual to the USCIS webpage with
instructions on completing the Form I-601, Application for Waiver of Grounds of
Inadmissibility (and, if necessary, Form I-212, Application for Permission to
Reapply for Admission into the United States After Deportation or Removal).The
Consular Officer has no role in the immigrant visa waiver application process
since the applicant or his or her representative files the request directly
with USCIS.
c. (U) Post should then wait
for notification of waiver approval or denial from USCIS before taking further
action on a case.
9 FAM 305.4-6(B) (U) When USCIS
Permission To Reapply After Deportation Or Removal is Needed
(CT:VISA-567; 04-06-2018)
(U) An alien who has been
ordered removed under INA 235(b)(1) or at
the end of proceedings under INA 240 initiated
upon the aliens arrival in the United States, and who again seeks admission
within 5 years of the date of such removal (or within 20 years in the case of a
second or subsequent removal, or at any time in the case of an alien convicted
of an aggravated felony), is inadmissible. If the individual is filing a Form I-601 for one or more ineligibilities, the individual
must file the Form I-212 concurrently with
USCIS according to the form instructions
located on the USCIS Web site. If the
individual only requires a Form I-212, the applicant should file according to
the form's instructions located on the USCIS website.
9 FAM 305.4-6(C) (U) Filing
Form I-601 Or I-212 Filing With USCIS
(CT:VISA-774; 05-06-2019)
a. (U) An alien seeking an
immigrant visa waiver files the Form I-601, Application for Waiver of Grounds
of Inadmissibility with USCIS. IV, K, and V applicants
will be required to mail their I-601 and any supporting documentation as per
the current instructions on the USCIS website.
b. (U) IV, K, and V applicants requiring consent to
reapply for admission must file the Form I-212, Application for Permission to
Reapply for Admission into the United States After Deportation or Removal,
according to the forms instructions. The Form I-212 instructions also specify where the alien
should submit the Form I-212, if the alien also needs to file the Form I-601.
You should advise the alien to consult the USCIS website
for the most current information about filing Form I-212, either alone or
together with a Form I-601.
c. (U) After filing Form I-601 or Form I-212, the application is adjudicated by
USCIS. Applicants will be able to view
their case status online by searching the USCIS receipt
number (which is located on the receipt notice) in the "Case Status"
field on the USCIS homepage (uscis.gov).
Applicants can also call the USCIS National
Customer Service Center to request the status of their case. Contact
information for USCIS is available at
www.uscis.gov/contact.
d. (U) An alien seeking a
waiver of inadmissibility relating to accrual of unlawful presence under INA
212(a)(9)(B)(v) may be eligible to apply
for a provisional unlawful presence waiver before leaving the United States to
attend an immigrant visa interview. Aliens seeking a provisional unlawful
presence waiver while in the United States should refer to USCIS's website on how to file a Form I-601A,
Application for Provisional Unlawful Presence Waiver.
9 FAM 305.4-6(D) Unavailable
(CT:VISA-567; 04-06-2018)
a. Unavailable
b. Unavailable
(1) Unavailable
(2) Unavailable
(3) Unavailable
(4) Unavailable
c. Unavailable
(1) Unavailable
(a) Unavailable
(b) Unavailable
(2) Unavailable
(a) Unavailable
(b) Unavailable
(c) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
(iv) Unavailable
(d) Unavailable
d. Unavailable
9 FAM 305.4-6(E) (U)
Notification Of Waiver Decisions by USCIS
(CT:VISA-339; 04-13-2017)
a. Unavailable
b. Unavailable
c. Unavailable
Unavailable
d. Unavailable
Unavailable
e. Unavailable
(1) Unavailable
(2) Unavailable
f. Unavailable
g. Unavailable
h. Unavailable
i. Unavailable
j. Unavailable