The 212(d)(3) – Hranka NIV Waiver

About Time

The 2013 Richard Curtis romantic comedy About Time explores time travel as both a means to change the future or simply to relive the past (it’s based on The Time Traveler’s Wife (2009); interestingly, both films star the timeless Rachel McAdams—and About Time includes an appearance by my daughter). Individuals who have been found to be inadmissible will need a waiver of inadmissibility to receive a visa to visit or work temporarily in the United States. Waivers of Inadmissibility are fundamentally About Time.

Section 212(d)(3)(A)(i) of the Immigration and Nationality Act provides:

an alien who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States.

Basically, this means that, other than certain security-related grounds of inadmissibility, all inadmissibilities can be waived for nonimmigrants (i.e. notwithstanding ineligibility for a visa based on something like a criminal record, it is possible to excuse the inadmissibility and issue the visa).  Notably, 212(d)(3)(A)(i) only provides for waiver of inadmissibilties under INA 212(a); it does not include ineligibilities under provisions like INA 214(b) or INA 221(g). 

There are no statutory requirements for waiver eligibility; however, standards have been developed through case law and policy guidance.

Matter of Hranka

In 1978, the Board of Immigration Appeals announced a three-part test to determine eligibility (weighted from most important to least important):

  1. Risk of harm to the US;
  2. The seriousness of the grounds of inadmissibility; and
  3. The reasons for applying for a visa

Matter of Hranka, 16. I&N Dec. 491 (BIA 1978) involved a woman who, like Rachel McAdams, was from Canada (the similarity ends there). The applicant in Hranka had been found to be inadmissible becasue of previous engagement in prostitution in 1975. An initial application made to the District Director (DD) in 1977 was denied because the DD determined that not enough time had passed since the offence and there were no compelling reasons to issue the visa. In overturning the DD decision, the Board articulated the 3-part test, noting that the applicant had established that her actions since the events that precipitated the inadmissibility showed rehabilitation (and, hence, the risk of harm was small) and that, although her reasons for travel (to visit US family) were not necesarily compelling, they were serious enough to warrant the waiver.

9 FAM 305.4-3–Consular Request for Waiver

The process for requesting a waiver of inadmissibility for a nonimmigrant visa is through the consular officer as part of the nonimmigrant visa application. There is no means for a visa applicant to directly file a request for a waiver; the waiver request is made by the consular officer to the Department of Homeland Security’s Admissibility Review Office (ARO). This means that the visa applicant, in addition to establishing eligibility for the visa, must also convince the consular officer to recommend the waiver.

The Foreign Affairs Manual provides the following guidance to consular officers in determining whether to recommend a waiver:

You should consider the following factors, among others, when deciding whether to recommend a waiver:

  1. The recency and seriousness of the activity or condition causing the applicant’s ineligibility;
  2. The reasons for the proposed travel to the United States; and
  3. The positive or negative effect, if any, of the planned travel on U.S. public interests.
  4. Whether there is a single, isolated incident or a pattern of misconduct; and
  5. Evidence of reformation or rehabilitation.

These five criteria inform the answers to the three-part test that is still employed by the ARO: they fundamentally relate to assessment of risk and reasons for travel.  Items 1 and 5 are essential–and utimately, they are all About Time.