United States Customs and Border Protection (CBP) recently announced that nonimmigrant waivers of inadmissibility filed by citizens of Canada will generally be issued for a validity period of five years. In the past, the typical validity period lasted only one year, particularly for first-time applicants. CBP has now stated that five-year waivers will be issued for most applicants, including those who have submitted waiver requests for the first time.
Most commonly, inadmissibility to the United States is caused by past criminal convictions and/or prior U.S. immigration law violations. For example, a conviction for a “crime involving moral turpitude” may cause a foreign national to be considered inadmissible to the United States for life. Additionally, a foreign national who previously lied or made a false claim to U.S. citizenship may also be deemed inadmissible. Once CBP makes a determination of inadmissibility, an individual who wishes to enter the U.S. as a visitor or for purposes of temporary employment, must first obtain an approved waiver before being able to apply for admission.
In this context, these waiver applications are filed by citizens of Canada at either a designated port-of-entry or pre-flight CBP inspection station. Among other things, the applications must include a Form I-192, as well as a recent (less than one year old) fingerprint report from the Royal Canadian Mounted Police. The standard for adjudication was set forth by the Board of Immigration Appeals several years ago in the seminal waiver case, Matter of Hranka. The Hranka case held that the adjudicating officer must weigh the risk of harm to U.S. society, the seriousness of the immigration or criminal law violation, and the reasons for wishing to enter the United States in order to decide whether to exercise favorable discretion and grant the waiver.
Over the past several years, adjudication of I-192 waivers has been an inconsistent and frustrating process. In some cases, we have seen first-time applicants obtain five year waivers right away. At the same time, we have seen other clients have to deal with the inconvenience and expense of having to apply for waiver renewals year after year in order to try to reach the five year pinnacle.
With the recent announcement, we are better able to predict the validity period of an approval and calm clients’ anxiety that they may have to engage in the renewal process every year for many years. However, it is important to understand that an approved waiver does not guarantee admission to the United States. It simply allows a person to overcome the known issue of inadmissibility and try to seek entry. That individual must still undergo the inspection process to allow a CBP officer to determine if the reasons for seeking entry at that point in time are in compliance with U.S. immigration law.
The Immigration team at Barclay Damon possesses extensive experience with I-192 waivers and issues of inadmissibility. We are here to help clients by explaining the issues, making complete legal assessments, and preparing waiver applications that we believe carry a high likelihood of success.