Immigrant & Non-immigrant Visa (NIV) Waivers

There are times when persons are found to be inadmissible to the United States for previous criminal arrests, misrepresentation, or fraud (among other reasons). The immigration laws allow for waivers of those inadmissibilities for both immigrant and non-immigrant reasons. For persons that may only be seeking to enter the United States for a temporary non-immigrant purpose such as to visit, study, or work, their prior history may prevent them from being admitted into the United States. If you have been refused entry to the United States and have been found inadmissible, you might need a waiver.

Does my reason for refusal require a non-immigrant visa waiver?

Reasons for Refusal & Non-immigrant Visa (NIV) Waivers

Depending on your situation, your reason for refusal will fit into one of the following three categories.

Reasons for refusal where a non-immigrant visa waiver is NOT required

INA 214(b): Presumption of Immigrant Status. No NIV waiver is available for a refusal under INA 214(b). In many instances, this can be overcome through the presentation of the proper supporting documents to overcome immigrant intent.
INA 221(g): Failure to Comply with the INA. No NIV waiver is available for a refusal under INA 221(g). In many instances, this can be overcome through the presentation of the proper supporting documents to prove admissibility under the non-immigrant visa sought.
INA 212(a)(7)(A): Documentation Requirements for Immigrants. Documentation Requirements for Immigrants do not apply to NIV applicants. If you were refused under INA 212(a)(7)(A) there is no NIV waiver available. In many instances, this can be overcome through the presentation of the proper supporting documents to prove admissibility under the non-immigrant visa sought.
INA 212(A)(4)(A): Public Charge Grounds. No NIV waiver is available for NIV applicants ineligible as a public charge. Applicants may overcome the finding by presenting evidence to convince you that the ineligibility no longer applies.

Reasons for refusal where a non-immigrant visa waiver is available

INA 212(a)(7)(B): Documentation Requirements for Nonimmigrants. An NIV waiver is available for non-immigrants not in possession of a passport valid for six months, an NIV, or a border crossing card based on 1) unforeseen emergency in individual cases; 2) reciprocity to nationals of foreign contiguous territory or of adjacent islands (and residents of those territories or islands having a common nationality with such nations).
INA 212(a)(1)(A)(i): Communicable Diseases. An NIV waiver is available for NIV applicants ineligible for communicable diseases.
INA 212(a)(1)(A)(iii): Physical or Mental Disorders with Associated Harmful Behavior Including Substance-Related Disorders. An NIV waiver is available for NIV applicants ineligible for Physical or Mental Disorders with Associated Harmful Behavior Including Substance-Related Disorders, subject to conditions that may be proposed by the Department of Health and Human Services (HHS), such as a requirement that a family member or medical escort accompany the applicant.
INA 212(a)(1)(A)(iv): Drug Abuse or Addiction. An NIV waiver is available for NIV applicants ineligible for Drug Abuse or Addiction upon your recommendation to DHS/USCIS.
INA 212(a)(2)(A)(i)(I): Crimes of Moral Turpitude. In some cases, a waiver is available for NIV applicants. The US Department of Homeland Security cannot approve the waiver request unless it is accompanied by a favorable recommendation from either you or the Secretary of State. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant’s character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(2)(A)(i)(II): Crimes Involving Controlled Substance Violations. An NIV waiver is available for NIV applicants ineligible for crimes involving controlled substance violations. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant’s character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(2)(B): Multiple Criminal Convictions. An NIV waiver is available for NIV applicants ineligible for multiple criminal convictions. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant’s character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(2)(C): Controlled Substance Trafficking. An NIV waiver is available for NIV applicants ineligible for controlled substance trafficking. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant’s character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(2)(D): Prostitution and Commercialized Vice. An NIV waiver is available for NIV applicants ineligible for prostitution and commercialized vice. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant’s character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(2)(E): Criminal Activity Where Immunity Asserted. An NIV waiver is available for NIV applicants ineligible for Criminal Activity Where Immunity Asserted. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant’s character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(2)(H): Human Traffickers. An NIV waiver is available for NIV applicants ineligible as human traffickers.
INA 212(a)(2)(I): Money Laundering. An NIV waiver is available for NIV applicants ineligible for money laundering.
INA 212(a)(3)(B): Terrorist Activities. An NIV waiver is available for NIV applicants ineligible for terrorist activities.
INA 212(a)(3)(F): Association with Terrorist Organization. An NIV waiver is available for NIV applicants ineligible for Association with Terrorist Organization.
INA 212(A)(2)(G): Participation in Particularly Severe Violations of Religious Freedom. An NIV waiver is available for NIV applicants ineligible for Participation in Particularly Severe Violations of Religious Freedom.
INA 212(a)(3)(E)(iii)(I): Participation in Torture. An NIV waiver is available for NIV applicants ineligible for participation in acts of torture.
INA 212(a)(3)(E)(iii)(II): Participation in Extrajudicial Killings. An NIV waiver is available for NIV applicants ineligible for participation in extrajudicial killing(s).
INA 212(a)(3)(G): Participation in the Use or Recruitment of Child Soldiers. An NIV waiver is available for NIV applicants ineligible for Participation in the Use or Recruitment of Child Soldiers.
8 U.S.C. 1182e: Participation in Forced or Coercive Abortion or Sterilization. 8 U.S.C. 1182e may be waived if the Secretary of State determines that it is important to the national interest of the United States to do so and provides written notification to the appropriate congressional committees containing justification for the waiver.
8 U.S.C. 1182f: Participation in Coercive Organ or Tissue Transplantation. 8 U.S.C. 1182f may be waived if the Secretary of State determines that it is important to the national interest of the United States to do so, and no later than 30 days after the issuance of a visa, the Secretary provides written notification to the appropriate Congressional committee containing a justification for the waiver.
INA 212(a)(6)(B): Failure to Attend Removal Proceeding. An NIV waiver is available for nonimmigrants ineligible for Failure to Attend Removal Proceeding.
INA 212(a)(6)(C)(i): Misrepresentation. An NIV waiver is available for nonimmigrants ineligible for misrepresentation. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant's character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(6)(C)(ii): Falsely Claiming Citizenship. An NIV waiver is available for nonimmigrants ineligible for Falsely Claiming Citizenship. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant's character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(6)(E): Smugglers. An NIV waiver is available for nonimmigrants ineligible as smugglers. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant's character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(6)(F): Subject to Civil Penalty. An NIV waiver is available for nonimmigrants ineligible under INA 212(a)(6)(F). Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant's character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(6)(G): Student Visa Abusers. An NIV waiver is available for nonimmigrants ineligible for student visa abusers. actors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant's character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(8)(B): Applicants Who Departed or Remained Outside the United States to Avoid Military Service. An NIV waiver is available for nonimmigrants ineligible as Applicants Who Departed or Remained Outside the United States to Avoid Military Service. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant's character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(9)(A): Individuals Previously Removed. An NIV waiver is available for nonimmigrants ineligible as Individuals Previously Removed. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant's character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(9)(B): Individuals Unlawfully Present. An NIV waiver is available for nonimmigrants ineligible for unlawful presence. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant's character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(9)(C): Individuals Unlawfully Present After Previous Immigration Violation. An NIV waiver is available for nonimmigrants ineligible for unlawful presence after previous immigration violations. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant's character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(10)(C): International Child Abduction. An NIV waiver is available for nonimmigrants ineligible for international child abduction. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant's character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(10)(D): Unlawful Voters. An NIV waiver is available for nonimmigrants ineligible as unlawful voters. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant's character, and the necessity for, or urgency of, the proposed trip to the United States.
INA 212(a)(10)(E): Former Citizens Who Renounced Citizenship to Avoid Taxation. An NIV waiver is available for nonimmigrants ineligible as Former Citizens Who Renounced Citizenship to Avoid Taxation. Factors to consider when deciding whether to recommend a waiver include the nature and date of the offense, possible rehabilitation of the applicant's character, and the necessity for, or urgency of, the proposed trip to the United States.
Section 3205 of Public Law 106-246: Individuals Who Aided and Abetted Colombian Insurgent and Paramilitary Groups. Section 3205 can be waived: (1) If the Secretary finds, on a case-by-case basis, that the entry into the United States of a person who would otherwise be ineligible under this section is necessary for medical reasons; (2) To permit the prosecution of such person in the United States or when the person has cooperated fully with the investigation of crimes committed by individuals associated with the Revolutionary Armed Forces in Colombia (FARC), the National Liberation Army (ELN), or the United Colombian Self Defense Organization (AUC); or (3) The President determines that the waiver is in the national interest.
Section 401 of Public Law 104-114: Individuals Involved in Confiscation of Property of a U.S. National. Section 401 may be waived where the Secretary finds, on a case-by-case basis, that entry into the United States of the person who would otherwise be ineligible is necessary for medical reasons or for litigation purposes of action under Title III of Public Law 104-114.
Section 405 of Public Law 112-208: Sergei Magnitsky Rule of Law Accountability Act of 2012. The Secretary may authorize a waiver to meet U.S. obligations under the U.N. Headquarters Agreement or other international obligations, or in cases in the national security interests of the United States.

Reasons for refusal where a non-immigrant visa waiver is NOT available

INA 212(a)(1)(A)(ii): Required Vaccinations. An NIV waiver is not available for NIV applications under INA 212(a)(1)(A)(ii).
INA 212(a)(3)(A)(i)(I): Intent to Commit Espionage or Sabotage. No NIV waiver is available for NIV visa applicants ineligible for Intent to Commit Espionage or Sabotage, but ineligibility applies only to current circumstances.
INA 212(a)(3)(A)(i)(II): Intent to Violate Export Control Laws Related to Goods, Technology, or Sensitive Information. No NIV waiver is available for NIV applicants ineligible for Intent to Violate Export Control Laws Related to Goods, Technology, or Sensitive Information, but ineligibility applies only to current circumstances.
INA 212(a)(3)(A)(ii): Intent to Commit and Unlawful Act in the USA. No NIV waiver is available for NIV visa applicants ineligible for Intent to Commit and Unlawful Act in the USA, but ineligibility applies only to current circumstances.
INA 212(a)(3)(A)(iii): Intent to Overthrow the US Government. No NIV waiver is available for NIV visa applicants ineligible for Intent to Overthrow the US Government, but ineligibility applies only to current circumstances.
INA 212(a)(3)(D): Immigrant Membership in Totalitarian Party. No NIV waiver is available for NIV visa applicants ineligible for Membership in Totalitarian Party, but ineligibility applies only to current circumstances.
INA 212(a)(3)(E)(i): Participation in Nazi Persecutions. No NIV waiver is available for NIV applicants ineligible for Participation in Nazi Persecutions.
INA 212(a)(3)(E)(ii): Participation in Genocide. No NIV waiver is available for NIV applicants ineligible for Participation in Genocide.
INA 212(a)(10)(A): Practicing Polygamists. A NIV waiver is not applicable to NIV applicants for practicing polygamy.
INA 212(e): Former Exchange Visitors. The foreign residence requirement of INA 212(e) may be waived by DHS upon recommendation from CA/VO/DO/W.
INA 208(d)(6): Frivolous Asylum Applications. There is no waiver available for NIV applicants ineligible for Frivolous Asylum Applications.
INA 212(a)(3)(C): Adverse Foreign Policy Consequences. No waiver is available for NIV applicants ineligible for Adverse Foreign Policy Consequences, but ineligibility applies only to current circumstances.
INA 212(f): Suspension of Entry by the President. There is no waiver available for NIV applicants ineligible for Suspension of Entry by the President.
PP 8693: Specially Designated Nationals. There is no waiver available for NIV applicants ineligible under visa sanctions.
Section 501 of Public Law 112-158: Iran Threat Reduction and Syria Human Rights Act. There is no waiver available for NIV applicants ineligible under Section 501 of Public Law 112-158.
Section 616 of Public Law 105-277: Participation in Certain Political Killings. There is no waiver available for NIV applicants ineligible under Section 616 of Public Law 105-277.

What makes me eligible (or ineligible) for a non-immigrant visa?

Eligibility for a Non-immigrant Visa

A Non-immigrant Visa (NIV) Waiver allows certain otherwise inadmissible persons to enter the US on a temporary visa and waives most grounds of inadmissibility including unlawful presence, criminal convictions, health issues, and immigration fraud.

Some refusals require advanced permission before seeking re-entry to the United States on a non-immigrant visa (NIV), including the B-1 or B-2 Visa, TN Visa, L-1 Visa, H-1B Visa, E Visa, O-1 Visa, and others
In some cases, a waiver may not be required and you can seek re-entry once you have compiled the appropriate supporting documents

When applying for a non-immigrant visa, it is presumed that you are an intending immigrant. in other words, you plan to move to the US permanently. The burden is on you to demonstrate that:

Your intent is non-immigrant or temporary in nature
You intend on returning to your home country after your temporary non-immigrant purpose
You are otherwise admissible to the US

Some grounds for the refusal of a non-immigrant visa cannot be overcome, such as sabotage, genocide, and espionage.

How do I apply for a Non-immigrant Visa (NIV) Waiver?

Applying for a Non-immigrant Visa (NIV) Waiver

You should file your application for a non-immigrant visa waiver with the CBP well in advance of the date you intend to travel to the US.

NIV Waivers for Canadian Citizens. If you are Canadian, you are visa-exempt and can apply for a non-immigrant visa waiver in person directly at a US port of entry. This application is done by delivering USCIS Form I-192 Application for Advance Permission to enter as a Nonimmigrant, along with all required supporting documentation to a CBP officer.

You can either file your non-immigrant waiver application electronically on the CBP’s Electronic Secured Adjudication Forms Environment (e-SAFE) page or in person at designated ports of entry
When applying for an inadmissibility waiver at a US Consulate, this is done via the Admissibility Review Office (ARO)

NIV Waivers for Non-Canadian Citizens. For non-Canadians, the waivers are submitted at the consulate after a visa denial is issued.

How long does it take for my Non-immigrant Waiver to be reviewed, and how long is it valid?

Non-immigrant (NIV) Waiver Review & Duration

The CBP Admissibility Review Office (ARO) adjudicates non-immigrant waivers and will mail their decision to the address on your application. CBP recommends that you wait at least 90 days from the date you submitted your application before making a status inquiry.

Non-immigrant visa waivers are issued for either a 6-month or a 1-year period. The maximum amount of time that they can be issued is 5 years.

What about Immigrant Visa Waivers?

Immigrant Visa Waivers

In an immigrant context, a person may have been the Beneficiary of an approved immigrant petition, but has not been able to be issued an immigrant visa or adjust status due to their inadmissibility.

These persons can apply for a waiver on Form I-601 by establishing that a qualifying relative will suffer extreme hardship if they are not granted a waiver. Richards & Jurusik Immigration Law has successfully prepared such waivers for many clients.