DOS Final Rule Restricting the Non-immigrant in the 212(d)(3) waiver process

A new rule went into effect today. This is yet another rule change restricting the immigrant’s access to transparency while adding additional requirements to the 212(d)(3) or Hranka waiver application process. The Department of State has announced a new rule limiting the requirement that the consular officer refer a Hranka waiver to the Department of State for review upon the request of the inadmissible visa applicant. You can view the details Federal Register Final Rule here:  DOS Final Rule Re INA 212(d)(3) waiver.

This rule change is regarding the non-immigrant INA 212(d)(3) waiver for inadmissible non-immigrant visa applicants. Under INA 212(d)(3), the Attorney General has the authority to waive a broad range of grounds of inadmissibility for individuals seeking to enter the United States as temporary immigrants. Temporary immigrants include people who are coming as tourists, workers or students. A person can seek a waiver for almost all grounds of inadmissibility except espionage, sabotage, genocide, and nazi persecution. To be eligible for the waiver, one has to be inadmissible, seeking a visa for admission to the United States and meet the criteria created in the the Board of Immigration Appeals case, Matter of Hranka. Under the Hranka factors, the officer evaluates (1) the risk of harm to society if the inadmissible applicant is admitted to the U.S.; (2) the seriousness of the inadmissible applicant’s prior criminal or immigration violations; and (3) the nature of the applicant’s reason for seeking admission to the United States. The reason for coming to the U.S. need not be compelling. However, it is the Department of Homeland Security that has broad discretion to approve or deny the waiver.

Under the Immigration and Nationality Act (INA), the consular officer must deny the visa application of an inadmissible visa applicant unless they receive a waiver of the ground of inadmissibility. The waiver would allow the non-immigrant visa applicant to be granted the visa (if otherwise admissible) to gain admission to the United States. The INA gives the Department of State and the consular officer reviewing the application the ability to send a recommendation to the Department of Homeland Security for a decision on the waiver. In cases where the officer chooses not to exercise their discretion to recommend that the Department of Homeland Security grant the waiver, the officer may send a report to the DOS for further review upon the request of the inadmissible visa applicant. The new rule changes the requirement that the officer send a waiver request by the applicant to to the Department of State only under specific circumstances. If the applicant’s waiver request does not fall under one of those circumstances, the officer can refuse the visa and refuse to refer the waiver to the Department of State for further review. The new rule does not “infringe” on the officer’s discretion to independently refer the waiver request to the DHS along with their recommendation for approval of a waiver.

Under the old rule, the officer was required to send the waiver request to the State department if the visa applicant requested this. Under the new rule, instead of referring cases to the Department of State when requested by the applicant, the consular officer must first determine whether the waiver request falls within one of the following:

1. Foreign Relations where denial of the visa would create a problem between countries or becomes an issue raised by a foreign government with a high ranking United States Government official;

2. National Security where the admission of the nonimmigrant visa applicant would promote a U.S. national security interest;

3. Law Enforcement where the admission of the nonimmigrant visa applicant would promote an important U.S. law enforcement objective;

4. Significant Public Interest where the admission of the nonimmigrant visa applicant would promote a significant U.S. public interest ; or

5. Urgent humanitarian or medical reasons where the admission of the nonimmigrant visa applicant is related to urgent humanitarian or medical purposes.

This new rule adds an element of complexity to the waiver requirements and the dynamics involved when requesting referral of the waiver to the Department of Homeland Security. An inadmissible immigrant who will seek a Hranka waiver must also determine whether their waiver requests would meet one of the five (5) criteria above. If the consular officer chooses not to recommend a waiver to DHS, the applicant must be prepared to show the officer that their visa application is also related to one of the above criteria.

NOTE: As always this is for informational purposes only and is not legal advice. Consult an immigration attorney, like myself, for advice regarding your particular circumstances.

 

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