Ban Flight

Introduction

For several different reasons, foreign nationals may find themselves inadmissible to the United States. For instance, individuals who have committed criminal offenses, violated immigration laws, or even contracted communicable diseases may be barred from entering the country. Depending on the circumstances, a person may be temporarily barred from US entry or otherwise be permanently inadmissible.

Once an individual is found to be inadmissible, the US government will not issue him or her a visa to work, study, visit for pleasure, and so on. If you are found to be inadmissible, the only way to be admitted into the country is if you obtain an I-192 waiver, or advanced permission to enter as a nonimmigrant. An I-192 waiver is a form that essentially “forgives” an individual’s ground(s) of inadmissibility and permits him or her to temporarily enter the US for a specific reason and for a specified time period.

The I-192 is not just a simple form–an applicant must present a strong case as to why he or she is deserving of a waiver of inadmissibility. It is best to retain an experienced immigration lawyer to consolidate all applicable documents and propose a winning case.

USA visa immigration stamp passport page, closeup

Who Can Apply for an I-192 Waiver?

To apply for an I-192 waiver, you must meet certain requirements. First, you must be a nonimmigrant, meaning you do not intend to permanently stay in the United States, and after your permitted stay expires, you must return to your home country. Applicants are highly scrutinized on this matter, and immigration officials will look for any hints or small details within a waiver application that alarms the intent to stay permanently. Second, you must be a foreign national in one of the following categories:

  1. Inadmissible nonimmigrant already in possession of appropriate documents;
  2. Applicant for T nonimmigrant status;
  3. Petitioner for U nonimmigrant status; or
  4. Full Canadian citizen.

Category 1: Inadmissible nonimmigrant already in possession of appropriate documents

If you fall under this category, it basically means that you already have a valid US visa stamp in your passport, or otherwise you applied for a US nonimmigrant visa abroad and immigration officials found that you qualify for one. Because these situations are fact-dependent and very circumstantial to each case, this category’s process for obtaining an I-192 waiver will not be the main focus of this article.

Category 2: Applicant for T nonimmigrant status

Victims of a severe form of human trafficking may apply for T nonimmigrant status, which allows victims to enter and remain in the US for up to 4 years if they meet certain requirements. Under federal law, a “severe form of trafficking” includes sex trafficking or labor trafficking. In order to be eligible for T status, an applicant must demonstrate that:

  • You are or were a victim of a severe form of human trafficking;
  • You are in the US or her territories, or at a port of entry due to such trafficking;
  • You comply and assist law enforcement in the investigation or prosecution of human trafficking; and
  • You would suffer extreme hardship involving unusual and severe harm if you were removed from the US.

If you qualify for T status, but you are otherwise inadmissible, you may file both your application for T status and form I-192 with the USCIS. Contact an immigration attorney for assistance if you fall under this category.

NOTE: If you are seeking T nonimmigrant status, and you are only inadmissible under INA section 212(a)(4) (public charge), you do NOT need to file form I-192 because you are exempt from this ground of inadmissibility.

Category 3: Petitioner for U nonimmigrant status

Victims of criminal activity who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity may apply for U nonimmigrant status. This status allows victims to temporarily stay in the US for 4 years if they meet certain requirements, with circumstantial extensions available. In order to be eligible for U status, a petitioner must demonstrate that:

  • You are the victim of qualifying criminal activity, listed here;
  • You have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity;
  • You have credible information about the criminal activity;
  • You were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime; and
  • The crime occurred in the US or her territories.

Similar to the process for T status, you may file both your petition for U status and form I-192 with the USCIS. Because U status is difficult to obtain, contact an immigration attorney for assistance if you fall under this category.

NOTE: If you are seeking U nonimmigrant status, and you are only inadmissible under INA section 212(a)(4) (public charge), you do NOT need to file form I-192 because you are exempt from this ground of inadmissibility.

Full Canadian citizen

Canadian citizens are considered to be visa-exempt, meaning they do not require a US visa or entry document. In order to enter the US, Canadians must present only their valid Canadian passport. However, Canadian citizens may still be deemed inadmissible. In this case, the only way the Canadian citizen may enter the US is if he or she obtains the I-192 waiver. Even if the visit is only for a few short hours, the visa-exempt Canadian is still required to obtain the waiver if any ground of inadmissibility applies.

Before you travel phrase written on chalkboard with vintage precise stopwatch

When Do I Need an I-192 Waiver?

Once a foreign national is found to be inadmissible, he or she must obtain an I-192 waiver prior to his or her intended travel into the US. This waiver is when immigration officials essentially “forgive” the foreign national’s inadmissibility, and give the traveler advance permission to enter the US for a temporary basis. By US law, there is a myriad of classifications or offenses that may result in inadmissible status. Pursuant to 8 U.S.C. § 1182, or section 212(d)(3) of the Immigration Nationality Act, a foreign national is deemed inadmissible and ineligible to receive a visa or admittance to the US if any of the following apply:

  • Health-related grounds (such as having a communicable disease of public health significance, failure to have proper vaccination for certain diseases, or having a physical or mental disorder and behavior that may pose a threat to the safety or welfare of others)
  • Conviction of a crime involving moral turpitude (other than a purely political offense)
  • Conviction of a crime involving a controlled substance
  • Conviction of 2 or more offenses, for which the aggregate sentences to confinement were 5+ years
  • Controlled substance traffickers
  • Human traffickers
  • Prostitution and commercialized vice
  • Foreign government officials who have committed particularly severe violations of religious freedom
  • Foreign nationals who have engaged, are engaging or seek to enter the US to engage in money laundering
  • Security and related grounds (such as activity related to espionage, sabotage, or other unlawful activity)
  • Foreign nationals who have engaged, are engaging or seek to enter the US to engage in terrorist activity or have association with terrorist organizations
  • Foreign nationals seeking to overthrow the US government or whose entry in the US would have potentially serious adverse foreign policy consequences for the US
  • Membership or affiliation with the Communist or any other totalitarian party
  • Participants in Nazi persecution, genocide, the commission of any act of torture or extrajudicial killing, or recruitment or use of child soldiers
  • Public charge
  • Foreign nationals who have violated immigration law (such as illegal entry, overstay of visa, fraud or misrepresentation of material fact in order to procure an immigration benefit)

As you can see, the US government is extremely strict and precise about who is allowed to enter the country! It is important to note that many of these classifications have exceptions. For instance, as mentioned previously in the article, foreign nationals seeking T or U status are not subject to public charge inadmissibility. Consult with an immigration lawyer on determining whether you may be considered inadmissible and if so, if you may benefit from an I-192 waiver.

Young man writing application form with pen and paper.

How to Apply?

There are two different application processes for those applying for a waiver at a US consulate abroad and for those applying at a US port of entry. For purposes of this article, only applications at a US port of entry require form I-192. In addition to the form, you will need to submit supporting documents along with a filing fee directly to the appropriate US Customs & Border Protection (“CBP”) office. Ports of entry differ from one another as some require in-person filing and others require that applications for a nonimmigrant waiver be mailed. Usually, when submitting in-person applications, you will receive a receipt, and CBP officials will take your fingerprints. CBP then sends your application to the Admissibility Review Office (“ARO”) for review.

Keep in mind, this process is not an automatic waiver: you will not be granted a waiver as soon as you hand your application over to CBP. Adjudicating waiver requests takes awhile, so it is important to note that if you are physically at a land port of entry, US immigration officials will refuse to allow your entry. This means that:

  1. If you are a Canadian seeking entry, you must submit your waiver request far ahead of the time of your planned travel; or
  2. If you are already in the US, once submitting your waiver application you must depart from the US. Immigration officials will not allow you to file your application and return to the US unless you already possess a nonimmigrant waiver subject to renewal.
Idea, Plan, Action - Strategy Concept

Strategy

Even if you meet the requirements for an I-192 waiver, this does not necessarily mean that you will automatically receive one. This waiver is granted in the exercise of discretion; therefore, an applicant must put forth a strong, compelling case showing why he or she is deserving of admission into the US despite his or her underlying inadmissibility.

When exercising its discretion, the ARO generally uses a balancing test of the positive and negative factors when adjudicating an applicant’s case. In the landmark case Matter of Hranka, the Board of Immigration Appeals (“BIA”) set forth 3 factors that the ARO must weigh when deciding whether or not to grant a waiver application pursuant to INA § 212(d)(3):

  1. The risk of harm to society if the applicant is admitted;
  2. The seriousness of the applicant’s immigration law, or criminal law violation, if any; and
  3. The nature of the applicant’s reasons for wishing to enter the United States.

It is beneficial to your application to present a legal memo applying the law to the facts of your case. Your ultimate goal is to show why you qualify for a waiver. The evidence you submit will largely depend on your case. For instance, if you are inadmissible due to a prior criminal conviction, you should include evidence of your remorse (or a statement that you are sorry for your past actions), rehabilitation, and show that such actions will never occur again. On the other hand, if you are inadmissible due to health-related grounds, you should include evidence of your particular medical condition, lack of medical assistance for your particular condition in your home country, and show that necessary treatment for your condition is only available in the US. As you can see, supporting evidence varies case-by-case, so it is important to communicate openly, honestly, and give detailed information to your immigration lawyer in order to assemble your best application.

General Material to Accompany Your Form I-192:

  • Proof of citizenship and identity;
  • Biographic Information;
  • Official police records from your home country, or evidence that no record exists;
  • Form G-28, if represented by an attorney; and
  • Official documentation and a written statement related to your inadmissibility

Supporting Documents to Accompany Your Form I-192 based on Prior Criminal History:

  • Court records of conviction(s);
  • Plea(s);
  • Statement of remorse of offense(s);
  • Documentation of rehabilitation, if any; and
  • Other relevant documents

Positive Factors to Accompany Your Form I-192:

  • Community service/Volunteer Work;
  • Family ties in the US;
  • Evidence of good moral character;
  • Considerable passage of time since the criminal behavior; and
  • Absence of significant undesirable or negative factors

Negative Factors that may affect Your Form I-192:

  • Evidence of moral depravity, or criminal tendencies reflected by an ongoing or continuing police record, nature, recent and seriousness of the criminal violations, if any;
  • Repeated violations of immigration laws, willful disregard for other laws;
  • The presence of other evidence indicative of a foreign national’s bad character; and
  • Gang involvement
J-1 Visa Waiver

Do I Need a Visa with the Waiver?

The I-192 waiver for advanced permission to enter the US as a nonimmigrant is not, by itself, a travel document. Foreign nationals will still need to obtain a valid visa to enter the US, meaning the waiver accompanies the visa and essentially acts as the last barrier to a foreign national stepping foot into the country. Canadian citizens are the only foreign nationals who are visa-exempt; however, if one is inadmissible, then he or she must obtain the I-192 waiver in order to enter.

Dollars - Money

The Cost of an I-192 Waiver

The current filing fee is $930. Checks and money orders may be addressed to “US Customs and Border Protection.” This fee covers both your application and fingerprints, meaning there is no additional biometrics fee. The fee is non-refundable.

USCIS does accept a fee waiver request for applicants for T or U nonimmigrant status. In this case, you must file Form I-912 Request for Fee Waiver along with your I-192 application. You must file supporting documentation for your fee waiver request, such as:

  • You are receiving a means-tested benefit;
  • Your household income is at or below 150 percent of the Federal Poverty Guidelines, at the time of filing, based on your household size; and/or
  • You have a financial hardship, i.e. medical expenses of family members, unemployment, eviction, or homelessness.

There is no filing fee for Form I-912.

Processing Times

How Long Do I Have to Wait for Approval?

The processing time for first-time applicants is usually about one year from the date of submission of the Form I-192. However, this timeframe can vary from one case to the next. Overall, it is strongly advised to file your waiver application well in advance of the date you intend to travel to the US.

Once the ARO adjudicates your application, they will mail their decision to the address you provided on your application. The USCIS recommends that you wait at least 90 days from the date you submitted your application before making a status inquiry. To submit an inquiry, email inquiry.waiver.aro@dhs.gov. If you are an attorney, send your inquiry to attorneyinquiry.waiver.aro@dhs.gov.

I-192 Approved

After the Approval of an I-192 Waiver

Upon approval of your application, the ARO will issue the waiver, Form I-94, which will need to be carried on you whenever you seek entry into the US. The waiver will state: (1) how long it is valid for; and (2) the recipient’s permissible purposes of entry. For first time recipients, the waiver is usually issued for a period of one year. In the future, the recipient may renew this waiver, which is usually approved for a period of two to three years. The maximum validity period per waiver is five years. In most cases, the waiver will state the recipient’s permissible purposes of entry as “business and pleasure,” but in some cases, it may be restricted to “business only” or “pleasure-only.”

In the event that your application is denied, the ARO will send you notice of denial and state the reasons for its rejection. In this case, the applicant retains the right to appeal the decision within 15 days after the mailing of the notification of the decision in accordance with 8 CFR § 212.4(b).

I-192 Expired

What Happens When My I-192 Waiver Expires?

By law, nonimmigrant waivers may not exceed the maximum validity period of five years. The US government no longer offers what was once known as “lifetime waivers.” As stated above, if your waiver is initially issued for one or two years, you may renew the waiver up to the full five year period. When renewing your nonimmigrant waiver, you must file well in advance of the expiration of your current waiver, otherwise, CBP will not admit nor extend stay for those in possession of expired waivers. Past the five year mark, you must file an entirely new application for a subsequent waiver for permission to enter the US as a nonimmigrant.

In all, it is most beneficial to retain an immigration lawyer in your endeavors to apply and obtain a waiver excusing inadmissibility. By procuring legal assistance, your attorney may help you present your best case by applying your situation’s facts to the law, advise you of the likelihood of receiving permission to enter, and upon granted permission, advise you of when would be the best time to file for renewal so that you do not unintentionally violate the law.

At Herman Legal Group, Your Future Matters Most

Call now for your FREE consultation
+1-800-808-4013
24/7 Evening and Weekends
REQUEST FREE CONSULTATION