What are the requirements of a non-immigrant visa waiver of inadmissibility?

A waiver of inadmissibility in conjunction with a non-immigrant visa differs to an immigrant visa waiver and does not require hardship to a qualifying relative.

The consular officer will bear the following relevant factors in mind:

  • The recency and seriousness of the activity or condition causing the applicant’s inadmissibility;
  • The reasons for the proposed travel to the US; and
  • The positive or negative effect, if any, of the planned travel on US public interests

What is the process?

Upon submitting an application for visa and waiver to the relevant embassy or consulate, the consular officer will consider whether to recommend the waiver application to the Admissibility Review Office (“ARO”) for approval, in doing so they must make the following findings:

  • You are not inadmissible as an intending immigrant;
  • You are not inadmissible on the basis of security-related grounds of inadmissibility;
  • You do not seek a waiver of nonimmigrant documentary requirements of INA § 212(a)(7)(B), which may be waived only under the provisions of INA § 212(d)(4); and
  • You otherwise qualify for the nonimmigrant visa sought.

What if a waiver is not recommended?

In the event the consular officer does not recommend the waiver application, your chances of obtaining a visa are not dead in the water; you may pursue either of the following options which may result in a positive outcome:

  • Request that your case be submitted for an advisory opinion; or
  • Apply again at a later date.

What if my conviction is expunged?

This depends on the grounds on which the set-aside was based. Where a conviction is set-aside/expunged based on rehabilitation – many US statutes provision for this – it remains on a person’s record for purposes of US immigration. However, if your conviction is set-aside/quashed on the basis that the conviction was “unsafe”, which is usually a result of procedural error, but can also be due to substantive issues, it will no longer be considered a ground the adjudicating officer may consider. Therefore, if for example, you had a conviction for a drug offence that was later quashed by the court based on improper handling of the case, you will not be considered inadmissible.

This is a very tricky area of immigration law and you should contact us if you feel you may be in this position.

What if my conviction is “spent”?

Unfortunately, convictions that are “spent”, under the Rehabilitation of Offenders Act 1986, remain convictions for purposes of US immigration law. As above, when convictions are expunged, set-side or spent based on grounds of actual or assumed rehabilitation, they do not satisfy the rules for when a conviction is no longer to be considered.