9 FAM 305.4
(U) Processing Waivers
(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
(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
(U) 22 CFR 40.301.
9 FAM 305.4-2 (U) Processing INA 212(d)(1) Waivers
9 FAM 305.4-3 (U) Processing INA 212(d)(3)(A) Waivers
9 FAM 305.4-3(A) (U) Department's INA 212(d)(3)(A) Waiver Authority
(Previous Location: 9 FAM 40.301 N1 CT:VISA-1908; 10-01-2012)
(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
(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
a. (U) You may 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 some qualifying family relationship, or the passage of a specific amount of time since the commission of the offense, 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 such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.
b. (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.
c. (U) Explain your reasoning for recommending a waiver in the comments section of ARIS, including identifying any factors that lead you to conclude the applicant has been rehabilitated and unlikely to repeat actions that led to the ineligibility.
9 FAM 305.4-3(D) (U) Consistency in Requesting a Waiver
(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 material change in circumstances relevant to the factors to be considered under INA 212(d)(3)(A).
9 FAM 305.4-3(E) (U) Referral of Waiver Recommendations
9 FAM 305.4-3(E)(1) (U) When to Submit Applications to Department of Homeland Security (DHS) / Customs and Border Protection (CBP)
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 CBP Admissibility Review Office (ARO) via ARIS.
b. (U) If you do not believe that the alien should be admitted temporarily despite the ground of inadmissibility (if you do not want to recommend a waiver), do not submit an ARIS waiver recommendation to ARO. CBP/ARO requires a positive recommendation from State (normally the consular officer) in order to take action on a waiver request, but the Visa Office can also make the recommendation (see 9 FAM 305.4-3(E)(2)). However, you are generally in a better position to adjudicate waiver requests since you have direct access to the applicant and are more familiar with the case than the Department.
9 FAM 305.4-3(E)(2) (U) When to Submit Applications to the Department for Review
b. (U) You may not refuse an alien's request to submit the waiver request to the Department. You, however, may submit a recommendation to the Department against such waiver along with the reasons for your objection to the waiver.
c. (U) You cannot submit a waiver request to DHS if you are required to submit the waiver to the Department.
d. (U) You must refer the following categories of cases to the Department where you do not recommend a waiver be granted, but ask for the Department’s determination of whether a request for a waiver of inadmissibility should be sent to CBP/ARO:
(1) (U) Any case in which you have doubts as to whether an INA 212(d)(3)(A) waiver recommendation is warranted, or know or believe the Department has pertinent information not available to you;
(2) (U) 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, even if you believe the waiver is not warranted;
(4) (U) Any case in which the Department 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;
(5) (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.
f. (U) As a reminder, you should report fraud or any other criminal immigration violation to the responsible Immigration and Customs Enforcement (ICE) Attaché, through the appropriate channels. If you have an ineligible K or V nonimmigrant visa applicant, instruct the applicant to file Form I-601, Application for Waiver of Grounds of Inadmissibility, with United States Citizenship and Immigration Services (USCIS). (See 9 FAM 303.3-5(B).)
9 FAM 305.4-3(F) (U) Expedite Requests
a. (U) Expedite requests must be reserved for cases with 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 will not expedite cases in which applicants fail to apply well in advance of their intended travel dates. Contact CA/VO/F/ET for assistance and advice on potential expedite requests.
b. (U) ARO prefers that posts contact the ARO via the VO/F/ET officer with the waivers portfolio if post needs a case expedited after it has been submitted. Please refer to the Visa Office Who's Who page for the appropriate officer.
9 FAM 305.4-3(G) (U) Waiver Validity Requests
9 FAM 305.4-3(G)(1) (U) In General
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 ARO can grant by regulation. [Exception: The maximum waiver validity that ARO can grant for a C1/D visa is 24 months.]
b. (U) INA 212(d)(3)(A) waivers are valid for the duration indicated by the ARO officer in the ARIS response. The waiver validity starts on the visa issuance date. A visa must be issued within 90 days of the receipt of the approved waiver and according to the terms of the approved waiver. Waivers for H2A applicants are valid for 12 months. You must manually limit the validity of the visa to the validity of the waiver.
9 FAM 305.4-3(G)(2) (U) Cases with Number of Entries and/or Period of Validity Authorized by Waiver Exceeds Reciprocity
(Previous Location: 9 FAM 40.301 N8.1 CT:VISA-1939; 11-01-2012)
(U) If DHS grants a waiver for more entries or a longer period than the appropriate visa reciprocity schedule specifies, 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).
9 FAM 305.4-3(G)(3) (U) Aliens Not Eligible for Multiple Entry Waiver Recommendations
(Previous Location: 9 FAM 40.301 N8.2 CT:VISA-1908; 10-01-2012)
(U) A recommendation for waiver of inadmissibility valid for multiple applications for admission is not available to an alien who:
(1) (U) Has a mental or physical disorder;
(2) (U) Is a narcotic drug addict or a narcotic trafficker;
(3) (U) Is afflicted with a communicable disease;
(4) (U) Was convicted for committing a serious crime involving moral turpitude such as arson, assault with a dangerous weapon, housebreaking, incest, rape, or voluntary manslaughter and has not been rehabilitated and integrated into society for at least five years since the date of conviction or release from confinement, whichever is later in time; or
(5) (U) Has engaged in prostitution or has procured or attempted to procure or import prostitutes or has received proceeds of prostitution within 10 years immediately preceding the visa application.
9 FAM 305.4-3(H) (U) Submitting Waiver Recommendations
(U) To submit INA 212(d)(3)(A)(i) waiver recommendations , you must use the Admissibility Review Information Service (ARIS), located in the CCD (Consular Consolidated Database). You should select the “Request Waiver” link next to the appropriate applicant to open the Waiver Request Form and create a waiver request. Consular officers and managers may both initiate and submit new waiver requests as well as update and submit waiver requests with a status of Pending Manager Approval. Foreign Service nationals may only initiate cases before sending them to an officer for approval. The ARO will review the waiver recommendation and submit the response to post through the CCD. Once posts have installed Nonimmigrant Visas (NIV) 04.04.00, users will be able to directly access the ARIS Waiver Request form through the Association - Clearance option on the NIV Applicant Information window:
(1) (U) From the NIV Applicant Clearance window, users can click the new "ARIS Waiver Request" button that will take the user to the ARIS Waiver request form on the CCD from which they can complete and submit the request.
(2) (U) You must refuse the applicant under all grounds of ineligibility that apply in the NIV system, and not simply 221(g) the case while the waiver request is pending.
(3) (U) You must scan all 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. Clearly label supporting documents scanned into NIV, or identify them in the case notes. If records no longer exist because of time elapsed, posts must explicitly state so in the comments section of ARIS.
(4) (U) Posts can check on the status of a waiver request through the NIV ARIS Request window and the NIV Clearance window. Response times for ARIS waivers can take up to 180 days.
9 FAM 305.4-3(I) (U) Name Check Requirements
(Previous Location: 9 FAM 40.301 N14 CT:VISA-2049; 10-24-2013)
(U) See reciprocity schedule for individual countries.
9 FAM 305.4-3(J) (U) Annotations for INA 212(d)(3)(A) Cases
a. (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]").
b. (U) You must issue the visa within 90 days of waiver approval, (12 months for H-2A visas) or CBP will consider the waiver invalid.
9 FAM 305.4-3(K) (U) When Processing Waivers for Government Grantees
9 FAM 305.4-3(L) (U) INA 212(d)(3)(A) Waiver of Medical Ineligibilities
(Previous Location: 9 FAM 40.301 N12 CT:VISA-2182; 09-24-2014)
(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(M) (U) Special Processing for Certain Waivers Requested by U.S. Law Enforcement Agencies
(U) Certain INA 212(d)(3)(A) waivers requested at the initiative of interested U.S. Government agencies for law enforcement purposes require special handling and should be processed in accordance with the guidance provided in 9 FAM 303.3-3(C).
9 FAM 305.4-3(N) (U) Posting of Bonds in Certain Cases
(Previous Location: 9 FAM 40.301 N13 CT:VISA-2049; 10-24-2013)
(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 212(e) Waivers
(U) See 9 FAM 302.10-7(D).
9 FAM 305.4-5 (U) Processing 212(g) Waivers
(U) See 9 FAM 302.2-5(D).
9 FAM 305.4-5(A) (U) Waiver Application And Interview for Immigrant Visa Applications
a. (U) When you refuse an immigrant visa to an applicant who is eligible to apply for the benefits of a waiver under INA 212(a)(9)(B)(v), (g), (h), or (i), you should record notes that clearly and thoroughly document the factual findings that support each element of the inadmissibility or ineligibility so that U.S. Citizenship and Immigration Services (USCIS) will be able to have a clear understanding of why you found the applicant inadmissible and ineligible for the immigrant visa. This information will assist USCIS in adjudicating Form I-601, Application for Waiver of Grounds of Inadmissibility. Unlike an NIV application, a consular officer does not recommend a waiver to DHS.
b. (U) If you determine that the ineligibility grounds associated with an individual can likely be waived, you should instruct the applicant that he/she may benefit from 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), and file it with USCIS per the instructions on the website. The applicant will send all supporting documents, including evidence of extreme hardship to a qualifying U.S. citizen or lawful permanent resident family member, directly to 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 305.4-5(B) (U) When USCIS Permission To Reapply After Deportation Or Removal Needed
(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 alien’s 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 with the appropriate domestic USCIS Field Office according to the form instructions located on the USCIS website.
9 FAM 305.4-5(C) (U) Filing Form I-601 Or I-212 Filing With USCIS
a. (U) An alien seeking a waiver under INA 212(a)(9)(B)(v), (g), (h), or (i) files Form I-601, Application for Waiver of Grounds of Inadmissibility with USCIS. As of May 2015, IV, K and V applicants will be required to mail their I-601 and any supporting documentation to the USCIS Phoenix Lockbox address noted below. You should advise an alien to consult the USCIS website for the most current filing and mailing information for the Form I-601.
(U) USCIS Phoenix Lockbox:
(U) For U.S. Postal Service:
P.O. Box 21600
Phoenix, AZ, 85036
(U) For Express mail or Courier deliveries:
ATTN: 601/212 Foreign Filers
1820 E. Skyharbor, Circle S, Suite 100
Phoenix, AZ, 85034
b. (U) IV applicants requiring consent to reapply for admission must file their Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, according to the form’s instructions. The Form I-212 instructions also specify where the alien should submit the Form I-212, if the alien also needs to file 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,application is adjudicated at the USCIS Nebraska Service Center (NSC), 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 file a Form I-601A, Application for Provisional Unlawful Presence Waiver.
9 FAM 305.4-5(D) (U) Resolving Discrepancies with USCIS
9 FAM 305.4-5(E) (U) Notification Of Waiver Decisions