9 FAM 305.4
(U) Processing Waivers
(Office of Origin: CA/VO)
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 of State's INA 212(d)(3)(A) Waiver Authority
(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 NIV ineligibilities to the Department of Homeland Security (DHS) for approval. You should not hesitate to exercise this authority when the applicant 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 ineligible under INA 214(b);
(2) (U) The applicant is not ineligible 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 NIV they are seeking.
9 FAM 305.4-3(C) (U) Factors to Consider When Recommending a Waiver
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.
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 applicant's ineligibility;
(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 basis 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. Any additional supporting documentation should be uploaded as this information will be considered by CBP's Admissibility Review Office ("ARO") and decreases the likelihood of an "Information Required" response from ARO. All documents should be scanned into NIV using a jpeg image format. The PDFs are not displayable to those outside of the consular section.
9 FAM 305.4-3(D) (U) Consistency in Requesting a Waiver
(U) You must be consistent in waiver recommendations. If another consular officer requested a waiver for an 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 to be considered under INA 212(d)(3)(A). Although you must be consistent 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)
a. (U) Except for 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.
b. (U) If you do not want to recommend a waiver, do not submit an ARIS waiver recommendation to the ARO. Instead, inform the applicant that you have found them ineligible for a visa and advise them whether a waiver is available. In cases where a waiver is available but you decline to recommend one, you should inform the applicant that they are 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 you or the Secretary of State. Therefore, those cases which do not have an affirmative recommendation by either you or the Department should not be submitted to the ARO's office via ARIS. In some rare cases where you do not wish to recommend a waiver, the Department of State can also make the recommendation independently (see 9 FAM 305.4-3(E)(2) below).
9 FAM 305.4-3(E)(2) (U) When to Submit Applications to the Department for Review
a. (U) If an applicant or interested party requests a waiver after you decline to recommend one, you should refer the request to the Department for review if the case meets one of the criteria below. Supervisor concurrence is required if you find that the applicant's waiver request does not meet one of the listed criteria:
(1) (U) Foreign Relations: Refusal of the NIV 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 an NIV applicant has requested a waiver of a ground of ineligibility other than one described in paragraph (d) below, and you have reason to believe that the travel meets one of the criteria listed above, you must request an AO from L/CA through the NIV System. You may not refuse an applicant'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 applicant’s 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.
e. (U) You cannot submit a waiver recommendation to DHS if you are required to first submit the waiver to the Department.
(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;
(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 applicant (i.e., any case where an applicant's waiver was previously denied by the ARO.);
(4) (U) Any case in which the applicant'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 applicant's failure to qualify for a visa might become a matter of public interest or of foreign relations significance.
g. (U) You must refer any case, regardless of the ground of ineligibility, in which the applicant or the applicant's representative such as a family member or 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 applicant’s travel meets one of the five criteria listed in 9 FAM 305.4-3(E)(2) paragraph a.
9 FAM 305.4-3(F) (U) Waiver Expedite Requests
a. (U) Expedite requests must be reserved for cases with (1) an urgent humanitarian need for travel, such as medical treatment or a death in the applicant's family and (2) 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 and/or fail to meet one of the conditions listed above. If you select to have a case expedited and ARO determines that it does not qualify for expedited processing, ARO will cancel the request which places the waiver processing request into the standard processing queue. You may contact CA/VO/F for assistance and advice on potential expedite requests.
b. (U) You may ask that the ARIS waiver request be expedited by choosing that option on the electronic waiver form and justifying it according to the criteria stated above. If a case has already been submitted to the ARO and you later determine that it needs to be expedited, then you should contact the VO/F officer with the NIV waiver portfolio for assistance. 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
a. (U) If you determine that an applicant meets the criteria for a waiver as set forth above, you may recommend a waiver valid for multiple entries for 60 months. Except for C1/D visas, generally CBP/ARO will grant a 60-month, multiple-entry waiver to first time waiver recipients. 60 months, multiple entries is the maximum waiver validity that the ARO can grant by regulation. The maximum waiver validity that the ARO can grant for a C1/D visa is 24 months. NIV may have default settings so you must manually limit the validity of the visa to the validity of the waiver.
9 FAM 305.4-3(G)(2) (U) Waiver Authorizing Multiple Entries and/or a Period of Validity that Exceeds Reciprocity
(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 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 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 for 60 months 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) Applicants Who Should Not be Recommended for a Multiple Entry Waiver
9 FAM 305.4-3(H) (U) Submitting Waiver Recommendations
9 FAM 305.4-3(H)(1) (U) Submitting a Single Waiver Request
(U) To submit INA 212(d)(3)(A)(i) waiver recommendations, you must use the ARIS review form, available through the NIV applicant information screen. You and your manager(s) may both initiate and submit new waiver requests. You 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, click the "ARIS Waiver Request" button located at the bottom of the window, to retrieve the ARIS Waiver request form. Once the form is completed, 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, do not simply refuse the case under INA 221(g) while the waiver request is pending. Applicants who are ineligible under INA 214(b) have no waiver available to them under the law. Do not submit an ARIS waiver recommendation since INA 214(b) is not waivable. ARO will not process any waiver request that does contain a 212(a) ineligibility and the request will be returned as an "Information Required" request. This will lead to delays in processing of the ARIS waiver request.
(3) (U) You must scan all relevant supporting documents into the NIV case. Depending on the ineligibility, this may include police/court records, 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, you must explicitly state so in the comments section of ARIS.
(4) (U) The ARO will review the waiver recommendation and submit the response to you through the CCD.
(5) (U) For more information on processing the ARIS request, see Chapter 19 of the NIV User Manual.
9 FAM 305.4-3(H)(2) (U) Submitting Multiple Recommendations for Applicants with Multiple Visa Classes
(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, you will need to submit an ARIS waiver request for each visa class separately.
(1) (U) Initially you must submit an ARIS waiver request for one of the classifications, such as B1/B2, and after obtaining approval should submit another request using the same visa control number for the other visa classification(s).
(2) (U) You 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
(U) Response times for ARIS waivers average 60 days but fluctuate based on ARO's workload. You 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 NIV Units so you should monitor the responses to help facilitate the processing of the case to conclusion. Email alerts can be set up to notify you when the NIV Unit 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. Update the email notification distro list as officers arrive and leave the consular section.
(3) (U) If an ARIS waiver request has already been submitted to the ARO and you later determine that it needs to be expedited, cancelled, or some other action taken by ARO you may communicate with ARO through the comment field on the ARIS request. If you would like to communicate with ARO you may also contact the VO/F officer with the NIV waiver portfolio for assistance. Refer to the Visa Office Who's Who page for the appropriate point of contact.
9 FAM 305.4-3(J) (U) Name Check Requirements
(U) See 9 FAM 304.5 for individual countries.
9 FAM 305.4-3(K) (U) Annotations for INA 212(d)(3)(A) Cases
(U) You must comply with all "Conditions of Waiver" noted by ARO in ARIS after an approved waiver decision is returned. 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
9 FAM 305.4-3(M) (U) INA 212(d)(3)(A) Waiver of Medical Ineligibilities
(U) For information regarding an INA 212(d)(3)(A) waiver of a medical ground of ineligibility for an applicant proceeding to the United States to undergo medical treatment, see 9 FAM 302.2-5(D)(2), 9 FAM 302.2-6(D)(2), 9 FAM 302.2-7(D)(2) and 9 FAM 302.2-8(D)(2).
9 FAM 305.4-3(N) Unavailable
9 FAM 305.4-3(O) (U) Posting of Bonds in Certain Cases
(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 applicant 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
(U) An applicant who is ineligible under INA 212(a)(9)(A)(i) (“9A1”), INA 212(a)(9)(A)(ii) (“9A2”), or INA 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 the Form I-212 (known as “Consent to Reapply” or “CTR”).
9 FAM 305.4-4(B) (U) Requesting Consent to Reapply (“CTR”) and Filing a Form I-212 with CBP
9 FAM 305.4-4(C) (U) Post Assistance for Applicants Filing I-212 with CBP/ARO
a. (U) To facilitate the processing of I-212s: You should only advise the applicant to file a Form I-212 with CBP/ARO for permanent relief from their 212(a)(9)(C)(i)(I) and 212(a)(9)(C)(i)(II) ineligibility after:
(1) (U) You review proof presented by applicant that 10 or more years have passed since the applicant’s last departure from the United States. Such proof includes, but is not limited to employment records, entry/exit stamps, income/tax documents, etc. These supporting documents should be included with the visa application or discussed in the case notes.
(2) (U) You should provide a favorable recommendation for the applicant to file the I-212 and document this in the case notes. You may also indicate that a visa will be issued once/if CTR from CBP/ARO is granted. CBP/ARO will not adjudicate the I-212 and will return the application to the applicant(s) with instructions to visit the embassy/consulate, if no favorable recommendation is found in CCD or if there are no case notes stating that documents have been reviewed by a consular officer for verification that 10 years have elapsed since the applicant's last departure.
b. (U) The 10 years since "last departure" must be verified by you. Note that the applicant might have multiple successful entries without inspection after previous encounters or with inspection but through temporary relief via ARIS waiver request. Last Departure is not the same as "last encounter", "ineligibility was incurred," or "the ten-year bar has passed." Carefully review the I-212 instructions with the applicants before suggesting that they seek permanent relief by filing an I-212.
c. (U) CTR is granted for known violation and any new violation would void CTR.
d. (U) NIV applicants who wish to file the I-212, must submit it to CBP/ARO using the instructions found at CBP.gov. If CBP/ARO approves the application, a 9C will appear in CLASS to inform the embassy/consulate of ARO’s approval of the application. Once CTR is granted triggering the permanent exception, you should submit a CLOK deletion request for the ineligibility. The applicant should also receive a Form I-272 indicating CBP's decision. Once you receive notification that CTR is approved you may process case to conclusion.
9 FAM 305.4-4(D) (U) Processing Form I-192s
a. (U) Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, is used for applicants who are:
(1) (U) Ineligible nonimmigrants already in possession of appropriate travel documents.
(2) (U) Applying for T nonimmigrant status; or
(3) (U) Applying 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(E) (U) Communicating with the ARO
9 FAM 305.4-5 (U) Processing 212(e) Waivers
(U) See 9 FAM 302.13-2(B)(1).
9 FAM 305.4-6 (U) Processing 212(g) Waivers
(U) See 9 FAM 302.2-5(D).
9 FAM 305.4-6(A) (U) Waiver Application for Immigrant Visa Applications
b. (U) If you determine that the ineligibility grounds associated has a waiver available under the law, you should instruct the applicant that they may be eligible to file an I-601 waiver. If the applicant is interested, refer the individual to the USCIS webpage with instructions on completing the Form I-601 (and, if necessary, Form I-212). You have no role in the IV waiver application process since the applicant or their representative files the request directly with USCIS.
c. (U) You 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
(U) An applicant who has been ordered removed under INA 235(b)(1) or at the end of proceedings under INA 240 initiated upon the applicant'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 applicant convicted of an aggravated felony), is ineligible. If the applicant is filing a Form I-601 for one or more ineligibilities, the applicant must file the Form I-212 concurrently with USCIS according to the form instructions located on the USCIS Web site. If the applicant 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
a. (U) An applicant seeking an IV waiver will file the Form I-601 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 according to the form’s instructions. The Form I-212 instructions also specify where the applicant should submit the Form I-212 if Form I-601 is also needed. You should advise the applicant 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 applicant seeking a waiver of ineligibility 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 IV interview. Applicants 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
9 FAM 305.4-6(E) (U) Notification of Waiver Decisions by USCIS