Nonimmigrant 212(d)(3)(A) Waiver
A non-immigrant worker or visitor may be admitted into the United States temporarily in spite of inadmissibility unless inadmissible because of security, foreign policy or participation in genocide or torture.
The Secretary of the Department of Homeland Security may exercise his discretion under INA (212)(d)(3)(A) of the Immigration and Nationality Act admit a non-immigrant with the following grounds of inadmissibility:
• Health-related grounds
• Particular criminal activity or convictions
• Unlawful presence
• Prior immigration fraud or misrepresentation
• Prior deportation
Legal factors for 212(d)(3)(A) Waiver
The criteria for granting a waiver under Section (212)(d)(3)(A) come from the precedent case of Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), hence the name Hranka waiver. Hranka waiver is not a waiver but authorization to enter the United States temporarily for a specific number of entries and during a particular period.
The legal factors for the exercise of discretion are:
(1) the risk of harm to society if applicant admitted;
(2) the seriousness of the applicant’s criminal or immigration law violation;
(3) the applicant’s reason for seeking entry.
Who can apply?
Non-immigrants seeking temporary admission may file a Hranka waiver. The exemption may be available for any person seeking entry for a temporary purpose (such as a B-1 (business visitor) or B-2 (visitor for pleasure) nonimmigrant, F or J non-immigrant, H-1B, TN or L-1 visa worker, or E-2 nonimmigrant investor – who is subject to one or more grounds of inadmissibility.
Applicants for U or T non-immigrant status who are inadmissible may also use 212(d)(3)(A) to obtain relief from grounds of inadmissibility. A K1 visa applicant is eligible for an INA 212(d)(3)(A) waiver if she is otherwise inadmissible and an immigrant waiver is available when she applies for adjustment of status as the legal permanent resident. 9 FAM 41.81 N9.1.
Application Procedure – How and where are Hranka waiver applications submitted?
An applicant who is inadmissible can apply for a 212(d)(3)(A) waiver through a U.S. Customs and Border Protection (CBP) port of entry, field officer, or the Admissibility Review Office (“ARO”). He can also apply through the USCIS or at a US consulate after being denied a visa.
The application can be made informally before a consular officer or on form I-192, Application for Advance Permission to Enter as Non-Immigrant.
At a US Consulate
When a consular officer denies a visa application because of inadmissibility, the applicant can request a waiver at the same consulate. There are no application forms or fees.
The consulate will review the waiver request and forward a recommendation to the Admissibility Review Office (“ARO”), located at the CBP Headquarters in Washington, D.C. The Consulate forwards recommendations on K and V visa cases to the U.S. Citizenship and Immigration Services (USCIS) office overseas. In both cases, the DHS must agree.
At a Land Port of Entry
The application can be made by mail or in person. If the applicant for admission sends an I-192 (https://www.uscis.gov/i-192) to the CBP, it will send the applicant fingerprinting instructions. However, if the application is in person at a land border, fees and fingerprints are taken at the same time. This process does not involve the Department of State, DOS.
Applicants by Visa Waiver Nationals
Foreign Nationals from Visa Waiver Program countries (e.g. U.K., Sweden and Taiwan) who are inadmissible must not apply for a waiver using I-192. They should apply for a nonimmigrant visa at a U.S. Embassy or consulate for authorization to travel as they are ineligible to use the Visa Waiver Program.
Canadian Waiver Applicants
Canadians can submit an I-192 waiver in person at a Pre-clearance Port of Entry or a land border. If made at the border, CBP Field Office responsible for the land border will retain jurisdiction. If made with the Preclearance port in Canada, the facility will forward the I-192 to the Admissibility Review Office (“ARO”), located at the CBP Headquarters in Washington, D.C.
An applicant for a nonimmigrant Hranka waiver must show why she has no intention of abandoning her residence abroad and will return to her country of origin before her authorized stay expires.
To increase the likelihood of approval, the applicant should submit a brief, or legal argument, outlining the applicable law and the reasons why the particular case meets the three criteria described in Matter of Hranka.