Canadian Citizens - Nonimmigrant Waivers
INA § 212(d)(3)(A) provides the Attorney General with the authority to waive nearly all grounds of inadmissibility1 with respect to nonimmigrant admissions. This is a much broader provision than the various grounds which exist to waive immigrant grounds of inadmissibility, both in terms of the grounds of inadmissibility which it waives and the showing the alien must make in order to qualify for the waiver. There are therefore many aliens who qualify for a nonimmigrant waiver who do not qualify for an immigrant waiver.
There are two types of waivers available under this provision. INA § 212(d)(3)(A)(i) provides a waiver for inadmissible aliens who apply for a visa at a U.S. consulate abroad, whereas INA § 212(d)(3)(A)(ii) provides a waiver for inadmissible aliens seeking admission without a visa directly at the port of entry. Because Canadian citizens are the only foreign nationals exempt from the requirement that they obtain a visa prior to seeking admission to the United States,2 this provision applies most often to Canadians. However, Canadian citizens seeking entry to the U.S. in K or E status are required to first obtain a visa3 and, if inadmissible, must seek a waiver under INA § 212(d)(3)(A)(i). For a waiver filed under § 212(d)(3)(A)(i) at the consulate, no specific form is required, whereas waivers filed under § 212(d)(3)(A)(ii) with CBP at the border are filed on form I-192.
This article will focus on procedural and strategic issues surrounding nonimmigrant waivers filed by Canadian citizens, including waivers filed at the port of entry on form I- 192 and waivers filed at the consulate for E and K visa applicants.
INA § 212(d)(3)(A)(i): Waivers for Canadians on Form I-192
Canadian citizens must file nonimmigrant waivers on form I-192 directly at the port of entry or at CBP Preclearance offices located in Canadian airports.4 The applicant need not be making an entry to the United States in order to file the application. This means that, for example, someone who lives in the Toronto area can file a waiver application at Pearson Airport without having purchased a ticket to fly to the U.S. It also means that someone who is presently in the United States may file an I-192 application at the port of entry without departing the U.S. and making a physical re-entry.5
Each port of entry and Preclearance office has its own procedures for acceptance of I-192 applications. The CBP Liaison Committee created a practice advisory listing the various procedures in 2007,6 but procedures are continually changing and it is therefore best practice to contact the port7 shortly before the waiver applicant is ready to submit the application to determine current procedures. However, a review of the 2007 guidance gives one a good feel for the types of variations in procedure from one port to the next.
Once the applicant submits the I-192 application at the port of entry, CBP agents at the port will forward it to the Admissibility Review Office (“ARO”) in Washington, D.C. The ARO was established in 20058 as a centralized processing office for nonimmigrant waivers of inadmissibility. Prior to establishment of the ARO, CBP adjudicated these waivers at various regional CBP offices. The process of transitioning over to the current, streamlined system was clunky at best.9 But presently, all I-192 waiver applications are forwarded to and adjudicated by the ARO.
Due to the record checks conducted by outside agencies, ARO processing times have always been rather lengthy for I-192s, in the range of 4-6 months. In recent years, the backlog has grown to over 6 months for many cases, though the processing time can vary widely from one case to the next and is thus unpredictable.
By regulation, nonimmigrant waivers pursuant to INA § 212(d)(3) may only be issued for a maximum period of 5 years at a time.10 In many cases, the initial waiver is granted for a shorter period, such as 1 year. Renewals are usually granted for the full five year period. Waivers cannot be revalidated; an entirely new waiver application must be submitted when the old one is close to expiring.11 It is noteworthy that CBP reads the poorly worded regulations at 8 C.F.R. § 212.4(c)(2)(ii) to state that aliens who hold nonimmigrant waivers may not be admitted to the U.S. past the expiration date of the waiver. The USCIS Adjudicator's Field Manual also makes it clear that extensions of stay or changes of status may not be granted past the waiver's expiration date.12 Thus, those in possession of a nonimmigrant waiver must be sure to file the application for renewal of the waiver at least 6 months in advance of the expiration of their current waiver.
It should also be noted that if the alien is in the U.S. in an employment-based classification which requires approval of a petition, then USCIS adjudicates the petition separately from the alien's application for an extension of stay, even though both requests are submitted together on the same I-129 form.13 However, the I-129 petition may be filed requesting extension of the petition but not requesting extension of the alien's stay. This can be done by checking the box on form I-129 requesting “Notify the Office in Part 4,” and then indicating the relevant port of entry or Preclearance office in part 4. If the petition is prepared in this manner, then USCIS will not adjudicate anything relative to the alien's admissibility and therefore will not be required to limit the validity period of the I-797 approval notice on behalf of the alien who holds a nonimmigrant waiver. This would mean that the alien would have to leave the U.S. and reenter in order for the extended petition validity period to take effect. In addition, when he enters the U.S. he will only be admitted for the duration of the waiver despite the longer validity period of the petition. However, when he does get his new nonimmigrant waiver he need only depart the U.S. and reenter using the new waiver and the previously issued approval notice in order to obtain a new I-94 with an extended validity period which will be set to end on the I-797 petition expiration date. This strategy can be used to avoid having to file multiple extension petitions due to an expiring waiver.
Purpose of Waiver
When filing a nonimmigrant waiver application on form I-192, the applicant must note the purpose for which he seeks entry on the form. CBP then notes the purpose of the alien's travel on the approved waiver, as required by 8 C.F.R. § 212.4(c)(1)(iv). In recent months, CBP has begun to read this, and the concomitant requirement at 8 C.F.R. § 212.4(c)(2)(i) that the alien's admission is “subject to the terms and conditions set forth in the authorization,” very restrictively. That is, CBP may refuse to admit someone to the U.S. if they believe the purpose of the entry is outside the scope of the purpose of travel noted on the approved waiver, and they are reading the purpose very narrowly in some cases. In the November 9, 2011 AILA/ CBP liaison minutes,14 the AILA CBP Liaison Committee raised this issue, noting that it most frequently arises when the waiver holder seeks entry in a different nonimmigrant classification. CBP noted in response that in reviewing the waiver terms and conditions, they specifically look at the type of nonimmigrant classification sought. In other words, simply changing from one employment-based nonimmigrant status to another may be enough for CBP to say that the waiver no longer covers the alien's admissions and that a new waiver is required.
CBP's narrow reading of the purpose of INA § 212(d)(3)(A)(ii) waivers may be borrowed from the context of § 212(d)(3)(A)(i) consular waivers, wherein the waiver is granted in connection with a specific visa and therefore limited to entries on that visa. However, it has not been CBP's historic practice to read the purpose of the waiver so narrowly, nor do the regulations demand such a narrow reading.
While USCIS does not appear to be reading the purpose of the waiver as narrowly as CBP does, the issue of admissibility will be revisited whenever the alien travels abroad and seeks reentry to the U.S. So someone who has received a USCIS approval of a change of status may nevertheless find himself refused entry by CBP upon subsequent travel if CBP does not feel that the previously granted waiver covers the alien's new status.
INA § 212(d)(3)(A)(ii): Waivers for Canadian E and K Visa Applicants
While most inadmissible Canadians will apply for nonimmigrant waivers on form I-192 at the port of entry, those who are required to apply for visas must obtain their waivers through the consulate pursuant to INA § 212(d)(3)(A)(i). As Canadian citizens are only required to apply for E and K visas,15 the procedure for each of those will be addressed in this article. The procedures for these two visa classifications differ because the E visa is a nonimmigrant visa whereas the K visa is a quasi-immigrant visa.
Nonimmigrant Waivers for Canadian Citizens Applying for E Visas
Canadian E visa applicants who are inadmissible must file their visa application at the consulate in Toronto or Vancouver and attend the visa interview. The application package is the same as any other E visa application except that the attorney must note the applicable ground of inadmissibility in a cover letter or supporting brief, and document the alien's eligibility for the waiver. No specific form or format is required.
The consular officer will make a determination following the interview as to whether the applicant qualifies for the E visa but for the applicable ground of inadmissibility,16 as well as determining whether to recommend approval of the waiver. The Department of State's role in approval of nonimmigrant waivers is advisory in nature;17 consular officers recommend waiver approval in meritorious cases to the Department of Homeland Security's Admissibility Review Office (“ARO”), which is part of U.S. Customs & Border Protection. However, final waiver approval rests with DHS. Once the ARO approves the waiver, the consular officer issues the visa with a § 212(d)(3) notation.
Consular officers generally submit only favorable waiver recommendations to DHS.18 If the officer believes that a waiver should not be granted, but the visa applicant or his attorney nevertheless wishes to pursue the application, the consular officer must submit the case to the Visa Office for an Advisory Opinion.19 The officer may forward the waiver request to the ARO without making a recommendation,20 however, which is likely to result in denial of the waiver. This may prejudice the alien against receiving a future nonimmigrant waiver, even on form I-192 and not in connection with an E visa application, from the ARO. This strategy should therefore be employed with extreme caution.
Historically, processing times for waivers submitted to the ARO through the consulate have been much shorter than I-192 processing times, in many cases only a few weeks. However, because visa applicants are required to attend the visa interview in Canada before the consular officer submits the waiver recommendation to ARO, even a delay of a few weeks is costly and difficult for the visa applicant, because he must remain in Canada during the period between the initial interview and final visa issuance.21 For investors, this can seriously hurt the person's U.S. business. In cases where E visa applicants are a married couple and only one is inadmissible, and both are Canadian citizens, the practitioner would be wise to make the admissible spouse the primary E visa applicant and to make the inadmissible partner the derivative, so that at least the principal will be able to be in the U.S. to run the company while the inadmissible spouse waits abroad for visa issuance.
In the past year, ARO processing times have grown quite lengthy even for cases submitted by consular officers. As of November 2011, CBP reported an average processing time of 70-85 days from CBP receipt of the DOS recommendation.22 Anecdotal reports from attorneys indicate that processing may take even longer in some cases. This puts a significant strain on the trader or investor's U.S. business.
To make matters worse, consular waivers generally are only granted in 1-year increments.23 Because the visa applicant may not be admitted past the expiration date of the waiver,24 this means that the alien must apply for an E visa annually and must wait in Canada for at least 2 months out of every year unless the consular officer and the ARO agree to grant a waiver that is valid for a longer period of time. This situation is likely to grow quickly untenable to the trader or investor.
Since Canadian citizens are eligible to file an I-192 general nonimmigrant waiver, the question arises as to whether a general 5 year waiver filed on the I-192 would cover an E visa entry. However, the FAM does not take this situation into account and seems to instruct consular officers to submit their own waiver recommendation to the ARO regardless of whether the alien already possesses a nonimmigrant waiver based on a prior I-192 filing. Given CBP's narrow reading of the purpose of admission on I-192 applications, it is unlikely that an alien given an I-192 waiver prior to applying for an E visa would be admitted to the U.S. using an E visa without the waiver notation plus the I- 192-based waiver anyway. Nevertheless, in cases where the alien's chances at a nonimmigrant waiver are marginal and where the consular officer may decline to recommend a waiver to the ARO, it may be in the visa applicant's best interest to provide proof that he has previously obtained a nonimmigrant waiver from the ARO based on an I-192 filing. A consular officer would be hard-pressed to decline to recommend a waiver when one has previously already been granted to the same alien using the same legal standard by the same office which will adjudicate it in connection with the visa application.25
While consular officers and CBP would likely not recognize a waiver filed on form I-192 as covering an E visa entry for a Canadian, USCIS has recognized the I-192-based waiver as a basis for an extension of E status filed by the author. As noted above, the AFM does state that an extension of stay cannot be granted past the waiver expiration date; however, it does not state that the waiver must be a consular waiver. In addition, while CBP is reading the purpose of the I-192-based waiver very narrowly, they are not involved in extension of stay adjudications and USCIS does not seem to be suffering from the same myopia. However, if the alien travels abroad at all during the validity period of the extension, he will need a new visa and waiver before reentering the U.S.26 This strategy is therefore only advisable for someone who does not often travel abroad.
Nonimmigrant Waivers for Canadian Citizens Applying for K Visas
Canadian K visa applicants who are inadmissible do not apply for nonimmigrant waivers.27 Instead, because K visa applicants are intending immigrants, they must attend the consular interview and, following a visa denial based on inadmissibility, must file an I-601 immigrant waiver application rather than a nonimmigrant waiver. The rationale for requiring the immigrant waiver is that it makes no sense to give a nonimmigrant waiver to a K visa applicant who will then be inadmissible as an immigrant when he files for adjustment of status a few months later.28 Presumably, waivers meeting the immigrant waiver standard will also meet the lower threshold for a nonimmigrant waiver. These I- 601 waivers are adjudicated according to the applicable immigrant, rather than nonimmigrant, waiver standard.29 K-1 fiancé visa applicants who do not currently qualify for an immigrant waiver based on extreme hardship to a U.S. citizen spouse because they are not yet married, but who will qualify immediately upon marriage, may nevertheless file the I-601 waiver following denial of the visa and it will be adjudicated as if the qualifying marriage exists.
Currently, the I-601 waiver is adjudicated by the USCIS office with jurisdiction over the consulate,30 which in the case of both the consulate in Montreal and Vancouver is the USCIS Vermont Service Center, where I-601 waiver adjudications are taking approximately one year. However, all I-601 adjudications will soon be centralized at the Nebraska Service Center pursuant to a lockbox filing program which is supposed to take effect in the late spring or early summer of 2012.31 The lockbox filing program is supposed to reduce the waiver adjudication time, but may or may not have the intended effect.
Because the I-601 form is the same form that is used to apply for the immigrant waiver, the K visa applicant who obtains a successful I-601 approval in connection with the K visa application need not apply for a second I-601 along with his subsequent I-485 application, and need only include a copy of the I-601 approval notice along with the I- 485 application.
While most Canadian citizens file an application for a nonimmigrant waiver on form I- 192 directly at the port of entry, those applying for E or K visas at a U.S. consulate in Canada are required to apply with the Department of State for a waiver, which will ultimately be adjudicated by the ARO. Conflicting readings of the waiver requirements and regulatory definitions between USCIS, CBP and DOS necessitate careful planning and strategizing.
1 The only grounds of inadmissibility which cannot be waived for nonimmigrants include aliens seeking to engage in acts of espionage or sabotage; an alien seeking entry to engage in unlawful activity; aliens whose entry would have adverse foreign policy consequences for the U.S.; and aliens who participated in Nazi persecutions or genocide.
2 22 CFR § 41.2(a).
4 A list of Preclearance offices is located on CBP's website at: http://www.cbp.gov/xp/cgov/toolbox/contacts/preclear_locations.xml.
5 See page 12, CBP Liaison Committee Meeting Questions and Answers; November 9, 2011. AILA InfoNet Doc. No. 12020166. (Posted 02/01/12).
6 AILA InfoNet Doc. No. 07060774 (Posted 06/07/2007).
7 Port of entry contact information is available at: http://www.cbp.gov/xp/cgov/toolbox/contacts/ports/.
8 Ahern, Jayson, Assistant Commissioner of Field Operations. Memorandum, “CBP Establishes Admissibility Review Office.” Posted on AILA InfoNet at Doc. No. 05033042 (3/30/05).
9 In their article titled, “Nonimmigrant Waivers for Canadian Citizens and Instability in the Processing System,” which was featured in the Immigration & Nationality Law Handbook 108 (2006-07 ed.), William Z. Reich and Jill A. Apa describe the transition period following establishment of the ARO, wherein some ports of entry were forwarding I-192s to the ARO whereas others were still transferring applications to regional CBP offices for final adjudication.
10 See 8 C.F.R. § 212.4(c)(3)(iii).
11 8 C.F.R. § 212.4(c)(3)(vi).
12 Adjudicator's Field Manual, Chapter 30.2(c)(3), Note 2.
13 See 8 C.F.R. § 214.2(h)(15)(i), stating in part, with regard to H-1B petitions, “The dates of extension shall be the same for the petition and the beneficiary's extension of stay. The beneficiary must be physically present in the United States at the time of the filing of the extension of stay. Even though the requests to extend the petition and the alien's stay are combined on the petition, the director shall make a separate determination on each.”
14 AILA InfoNet Doc. No. 12020166 (Posted 02/01/12).
15 Eligible Canadian citizens are also required to apply for V visas; however, as the V visa was made available under the Legal Immigration Family Equity Act of 2000 (“LIFE Act”) and applies only to spouses and minor children of LPRs on whose behalf I-130 petitions were filed prior to December 21, 2000, this classification is all but obsolete.
16 9 FAM 40.301 N2 requires that in order to make a favorable waiver recommendation to DHS, a consular officer must first determine that the applicant is otherwise qualified for the visa.
17 9 FAM 40.301 N1.
18 9 FAM 40.301 N6.1.
20 9 FAM 40.301 N6.2-1.
21 This is necessary because in the course of adjudicating the visa application, consular officers cancel the previously issued E visa and hold the passport until a new visa can be issued.
22 See page 12, CBP Liaison Committee Meeting Questions and Answers; November 9, 2011. AILA InfoNet Doc. No. 12020166. (Posted 02/01/12).
23 See 9 FAM 40.301 N6.2-3. But note that certain exceptions apply, and that waivers may be granted in some cases for up to 5 years.
24 See 8 C.F.R. § 212.4(c)(2)(ii) and Adjudicator's Field Manual, Chapter 30.2(c)(3), Note 2.
25 I owe this brilliant bit of strategy to Attorney Bob Kolken of Kolken & Kolken Immigration Lawyers in Buffalo, NY.
26 These aliens are not eligible for automatic visa revalidation as provided for in 20 C.F.R. 41.112(d) because they require a nonimmigrant waiver.
27 9 FAM 41.2 N8 states that K visa fiancés are not entitled to an NIV waiver.
28 9 FAM 41.81 N9.3.
29 The applicable immigrant waiver depends on the ground of inadmissibility. See, e.g., INA §§ 212(a)(9)(B)(v), 212(h), and 212(i).
31 This was discussed at the March 9, 2012 USCIS teleconference.