In this article, we consider the meaning of nonimmigrant visa (NIV) waiver, the factors the CO may consider in recommending NIV waiver, procedure for requesting a waiver, processing times for deciding a waiver, etc.
What is NIV waiver?
A waiver is a pardon. You may be ineligible to be admitted to the U.S. because of a previous immigration violation. Despite your ineligibility, you may be admitted to the U.S. on the basis of a waiver even though the waiver does not remove the ineligibility caused by the violation.
What factors does the CO consider in a waiver request?
For the CO to recommend a waiver, you must qualify for the NIV you are seeking. If you do not qualify, there will be no basis to request a waiver. If the CO determines that you qualify for the NIV, but they cannot issue a visa because of your ineligibility, they may proceed to consider your waiver request taking account of these factors:
- The recency and seriousness of the immigration violation: Generally, eligibility for a waiver is not conditioned on the passage of a specific amount of time since the commission of the violation. However, a waiver request made immediately after a violation may have little chance of success. In general the passage of time since the violation may be advisable for certain misconduct.
- The nature of the reasons for the visit: In requesting a waiver, you do not need to show that your reasons for the visit are “compelling.” The CO may recommend waivers for any legitimate purpose such as family visits, medical treatment, business conferences, tourism, etc.
- The positive or negative effect of the planned travel on U.S. public interests: If the CO determines that your proposed travel may harm U.S. interests, a waiver may not be recommended. Conversely, if the proposed visit may impact U.S. public interests, this may be a positive consideration.
- Whether the violation is a single, isolated incident or a pattern of misconduct: It is for you to show that you have not committed other violations since the misconduct that incurred the ineligibility. If the CO determines that you have committed other violations, they may conclude that it’s a repetitive conduct.
- Evidence of reformation or rehabilitation: The CO will identify any factors that may lead them to conclude that you have been rehabilitated and unlikely to repeat actions that led to the ineligibility. It is for you to provide evidence in this regard.
How should I request NIV waiver?
There is no specific form on which you must request NIV waiver. NIV waiver is free. You must state your basis for the waiver with evidence. Depending on the ineligibility, this may be declarations from third parties, court or police records, medical reports, etc. Any document in a foreign language must be accompanied by an English translation.
Where should I request the NIV waiver?
You must request the waiver at a U.S. Embassy or consulate. There are two ways to do this. You may attend your NIV interview without your waiver request. If the CO determines that you are eligible for a waiver, they will refuse you under 221(g) or other applicable provision of law and request that you return with your waiver request at a later date.
The alternative, (which is highly recommended) is to prepare your waiver request on hand at the time of your NIV interview. You can then hand it to the CO if they inform you that you are eligible to seek a waiver. This will save you a lot of time.
What happens if the CO accepts my waiver request?
By law, the CO cannot approve a waiver request. If the CO determines that you are eligible to seek a waiver they may send a recommendation to the Admissibility Review Office (ARO) for a determination.
How long does it take for a waiver request to be determined?
The average processing time for a waiver request is 120 days. There are expedited requests, but these are 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.
What is the validity period for a waiver request?
If your waiver request is approved, you may be granted multiple applications for admission for a maximum period of 5 years. This does not imply that you will be entitled to a visa for the 5 years. The validity period of waiver granted is in no way related to the validity of visa granted. For example, if you are granted a 5-year waiver and issued a B visa valid for 1 year, this does not mean that you will be entitled to receive a visa for the remaining 4 years.
Facing a temporary or permanent inadmissibility may not prevent you entirely from being admitted to the U.S. You may be eligible to request a waiver if you are able to satisfy the criteria.
By Emmanuel Opoku Acheampong
Disclaimer: This article only provides general information and guidance on US immigration law. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information. The writer is an immigration law advisor and a practicing law attorney in Ghana. He advises on Ghana, US, UK, and Schengen immigration law. He is a Managing Partner of Acheampong & Associates Ltd, an immigration law firm in Accra. He may be contacted on [email protected] or www.acheampongassociates.com