There are two types of waivers available under Section 212(d)(3)(A) of the Immigration and Nationality Act (INA).
INA Section 212(d)(3)(A)(i) provides a waiver for inadmissible foreign nationals who apply for a visa at a U.S. consulate abroad, whereas INA Section 212(d)(3)(A)(ii) provides a waiver for inadmissible foreign nationals seeking admission without a visa directly at the port of entry.
INA does not indicate the standards for the exercise of discretion. The Board of Immigration Appeals (BIA) in Matter of Hranka, 16 I.&N. Dec. 491 (BIA 1978), held that there is no requirement that the reasons for entering the United States be “compelling” and, instead, articulated a balancing test. Specifically, in adjudicating INA Section 212(d)(3)(A) waivers for discretionary permission to enter the United States, the BIA articulated following three factors to be considered:
- The risk of harm to society if the applicant is admitted;
- The seriousness of the applicant’s immigration or criminal law violations; and
- The nature of the applicant’s reasons for wishing to enter the United States.
Each consular post (for (d)(3)(A)(i) waivers) and each port of entry (for (d)(3)(A)(ii) waivers) has its own procedures for accepting waiver applications. Ports of entry often designate certain days and times during which waivers will be accepted.
‘Provisional’ Unlawful Presence Waiver (I-601A Waiver)
Under INA Section 212(a)(9)(B), a person who has accrued more than 180 days of “unlawful presence” in the United States is subject to a 3-year bar to readmission that is triggered upon departure from the United States. A person who has accrued one year or more of unlawful presence will trigger a 10-year bar to readmission.
In general, individuals who have an approved immigrant visa petition (Form I-130), but who are present in the United States without having been inspected and admitted or paroled, are ineligible to adjust their status to lawful permanent resident (LPR) while remaining in the United States. Instead, such individuals must leave the United States and apply for an immigrant visa at a U.S. embassy or consulate abroad. However, as described above, departure may trigger a 3- or 10-year bar to readmission. The 3- or 10-year bar to readmission may be waived if the applicant can demonstrate that the refusal of his or her admission would cause “extreme hardship” to a U.S. citizen or LPR spouse or parent.
The provisional waiver process allows an applicant who knows he or she will be subject to the 3- or 10-year bar upon departure to apply for “provisional” approval of an unlawful presence waiver prior to departing the United States for the immigrant visa interview. Assuming there are no other eligibility or admissibility issues, an approved provisional waiver should permit a consular officer to issue an immigrant visa without undue delays.
Other Immigrant Waivers (I-601 Waivers)
An individual who is ineligible to be admitted to the United States as an immigrant or to adjust status in the United States, and certain nonimmigrant applicants who are inadmissible, must file an application to seek a waiver of certain grounds of inadmissibility.
Applicants for adjustment of status and applicants for immigrant visas use the Application for Waiver of Grounds of Inadmissibility (Form 1-601) to request a waiver of the following grounds of inadmissibility.
|Inadmissibility Section of the INA||Description of Related Ground|
|212 (a)(1)||Health related grounds|
|212 (a)(2)||Criminal and related grounds|
|212 (a)(3)(D)||Membership in a totalitarian Party|
|212 (a)(6)(F)||Subject to civil penalty|
|212 (a)(9)(B)||Unlawful presence (in the United
States for at least 180 days,
beginning on or after April 1,
1997, followed by departure from
the United States.
For waiver under INA Section 212(h) for certain criminal grounds of inadmissibility or Section 212(i) for immigration fraud or misrepresentation, the applicant should have a U.S. Citizen, Lawful Permanent Resident (LPR) relative (spouse, son, daughter, parent), or K visa petitioner. Further, the applicant must prove that the denial of waiver application will cause extreme hardship to qualifying relative(s).
Note that only U.S. Citizen, or LPR spouse or parent, or the K visa petitioner can qualify as a qualifying relative for applicants seeking a waiver for fraud/misrepresentation for a material fact.
If Form I-601 is approved, the waiver that is granted will apply only to the grounds of inadmissibility and those crimes, incidents, events, or conditions that was included in application. Except in few limited circumstances, if an applicant is granted a waiver of grounds of inadmissibility in connection with immigrant visa or adjustment of status application, the waiver remains valid indefinitely.