I-192 Waivers: What factors does the ARO consider?

Since the landmark BIA decision of Matter of Hranka in 1978, I-192 waivers and INA 212(d)(3) waivers have been adjudicated by consideration of three (3) factors:

(1) The risk of harm to society if the applicant is admitted;

(2) The seriousness of the applicant's immigration or criminal law violations; and

(3) The nature of the applicant's reasons for wishing to enter the U.S.

These are the only factors for consideration that have been set forth by law.  However, I have noticed in many recent I-192 [INA 212(d)(3)] waiver decisions that the Admissibility Review Office ("ARO") has indicated that Matter of Hranka requires the weighing of at least the aforementioned three (3) factors.  In addition to these factors, the ARO states that it also considers the following factors:

(1) The nature of the offense;

(2) The circumstances which led to the offense;

(3) How recently the offense occured;

(4) Whether it was an isolated incident, or part of a pattern of misconduct;

(5) Evidence of reformation or rehabilitation.

The ARO does not cite the legal authority providing for the consideration of these factors.  Rather, the ARO states that these factors are considered when determining whether or not to exercise its discretion.

I am interested to see how things will play out at the BIA should a waiver applicant appeal a negative decision based upon the consideration of factors that have not been articulated by the BIA. 



Canada is closing Consulate in Buffalo

Due to a major change in Canadian immigration rules, the Canadian government has announced that the Canadian Consulate in Buffalo, New York will be closing. 

Foreign students and temporary worker in Canada who used to have to cross the border into the U.S. to renew their status at the Consulate will now be able to renew their status without leaving Canada.

Read article


USCIS to Centralize Filing and Adjudication for Certain Waivers of Inadmissibility (including I-212 & I-601 waivers)

U.S. Citizenship & Immigration Services ("USCIS") announced today that the agency will be putting a standardized process in place for waiver applications (Forms I-212, I-601, & I-290B) as of June 4, 2012.

These waiver applications will now be filed directly with USCIS at a lockbox facility.  The agency hopes that this change will provide more efficient and consistent adjudication. 

Additionally, waiver applicants will be able to check the status of their applications online at the USCIS website.

Read the USCIS Announcement


How can someone return to the U.S. after making a false claim to U.S. citizenship?

QUESTION: My brother is a U.S. citizen.  He is married and lives in Texas.  His wife lives in Mexico.  Eight years ago his wife presented herself as a U.S. citizen.  She was caught and given an expedited removal and five year bar. She has stayed in Mexico for the past eight years and has two children with my brother.vShe graduated from college in Mexico as a surgical techncian. I want to know if there is any way she can obtain any kind of visa so she can bring my niece and nephew to visit their father, aunt, and granddparents in the U.S.  Thank you so much.

REPLY: Thank you for your message.  While I cannot provide you with case-specific advice without first reviewing the details of your case, I can provide you with some general information that might be helpful.

Individuals who are charged with making a false claim to U.S. citizenship are inadmissible for life under INA 212(a)(6)(C)(ii).  An immigrant waiver is only available in certain cases when the individual reasonably believed that s/he was a U.S. citizen.  There is a nonimmigrant waiver available that can be applied for in connection with a nonimmigrant visa.  Anyone who has been subject to an order of expedited removal must also obtain permission to reapply for admission to the U.S. within the five-year period following the date of the expedited removal.  This application is made on Form I-212

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Processing Delays at the CBP Admissibility Review Office

On March 29, 2012, the CBP Admissibility Review Office (ARO) advised the American Immigration Lawyers Association ("AILA") that it is taking at least 120 days to adjudicate nonimmigrant waivers of inadmissibility [Forms I-192; INA 212(d)(3) waivers]. Accordingly, in the event that a nonimmigrant waiver of inadmissibility is required, the application should be filed as soon as possible in advance of intended travel, but no later than 120 days prior to the expected travel date.

Based on my experience with the ARO and processing times for nonimmigrant waivers, I always recommend filing the waiver application six (6) months in advance of the intended travel date.  While the ARO aims to adjudicate all waiver applications within 120 days, this is not always the case. 

Read the AILA Practice Alert