Applying for a Nonimmigrant Visa (Hranka) Waiver
Applicants for nonimmigrant visas have a separate procedural route by which to apply for a waiver of various grounds of inadmissibility.
For foreign nationals looking to come to the United States -- even for a temporary visit on a nonimmigrant visa -- U.S. immigration laws can pose some serious barriers to entry. In particular, the so-called “grounds of inadmissibility” bar many people from entering the U.S. due to their criminal history, record of illness, or other negative factors.
Fortunately, U.S. immigration laws also provide “waivers,” or forms of forgiveness, for certain grounds of inadmissibility. For example, a foreign national with a spotty criminal record can ask U.S. immigration officials to waive this ground of inadmissibility and grant a visa despite it.
Most immigration law waivers require highly specific sets of facts, making them unavailable in the majority of cases. However, one kind of waiver, called the “Hranka” waiver, can apply in a large number of cases. If you are seeking to enter the U.S. on a nonimmigrant visa but are barred by one or more of the grounds of inadmissibility, the Hranka waiver might help.
Be aware that the Hranka waiver is truly only available if you are seeking to enter the U.S. as a nonimmigrant, meaning that you intend to enter the U.S. for a temporary period of time and will return to your country of origin after your authorized period of stay comes to an end. The Hranka waiver also requires that you meet certain prerequisites, some of which can be quite technical. Consult a licensed immigration attorney if you decide that you want to seek a Hranka waiver.
What Is the Hranka Waiver?
Section 212(d)(3) of the Immigration and Naturalization Act, also known as the “I.N.A.,” states in part that a person looking to enter the U.S. as a nonimmigrant but ineligible for a nonimmigrant visa or inadmissible may still be admitted to the U.S. at the discretion of U.S. immigration authorities. In other words, this section of the law allows U.S. immigration to waive inadmissibility grounds.
Section 212(d)(3) is known as the Hranka waiver because of an immigration court case, Matter of Hranka. This case outlines the three legal factors that must be weighed by immigration authorities in deciding whether to grant the waiver:
- the risk of harm to society if a waiver applicant is admitted to the U.S.
- the seriousness of an applicant’s prior criminal or immigration violations, if any, and
- the nature of the applicant’s reason for wishing to enter the U.S.
Hranka also affirms two important points about this waiver. First, an applicant’s reasons for seeking the Hranka waiver need not be “compelling.” For example, an applicant merely wishing to enter the U.S. to make social visits is not disqualified from seeking a Hranka waiver, even though her reasons might not have some urgent humanitarian need. Second, Matter of Hranka emphasizes that U.S. immigration authorities have a huge degree of discretion in deciding whether to grant or deny the waiver, and that an applicant has no way to appeal or challenge the decision.
This second point is perhaps the most appealing feature of the Hranka waiver. While immigration authorities can deny the waiver for almost any reason, they can just as easily approve a Hranka waiver application on discretionary grounds. Foreign nationals burdened with an inadmissibility bar still have a chance to make an argument to immigration officials.
The Hranka waiver is not unlimited. There are some grounds of inadmissibility for which this waiver is unavailable. Immigration authorities will not grant the waiver if they know, or at least have reasonable grounds to believe, that an applicant is coming to the U.S. specifically to commit espionage, sabotage, other unlawful activities, or activities to oppose, control, or overthrow the U.S. government. Immigration authorities will also deny the waiver if an applicant’s entry to or proposed activities in the U.S. can undermine United States foreign policy. Last, immigration authorities will definitely deny waiver applications to persons who participated in torture, extrajudicial killings, or genocide, or who were Nazis who participated in persecuting others.
How to Apply for the Hranka Waiver
Applicants wishing to apply for a Hranka waiver have two possible routes. An applicant who has not yet been granted a visa may directly request a Hranka waiver from consular officers at the time of applying for a visa at a U.S. consular post. An applicant who already has a valid visa but is inadmissible to the U.S. can apply for the waiver at a U.S. port of entry using Form I-192, Application for Advance Permission to Enter as Nonimmigrant.
For either process, an applicant must establish that she or he positively satisfies the three factors from Matter of Hranka. First, an applicant must show that she or he does not pose a risk of harm to U.S. society. Second, an applicant must prove that any prior criminal or immigration violations are not of a serious nature. Last, an applicant must establish some valid reason for wishing to enter the United States that is not contrary to the remaining inadmissibility grounds discussed above. Also, because Hranka waivers are available only for nonimmigrant visas to the U.S., any Hranka waiver applicant must concretely show that she or he intends to leave the U.S. after her or his immigration status comes to an end.
In almost all cases, an applicant for the Hranka waiver must supply a brief, or a written legal argument, outlining the applicable law and the reasons why the specific case satisfies the law behind Hranka. Because Hranka waivers are almost always used in situations where an applicant already has one or more grounds of inadmissibility, we strongly recommend that you enlist the assistance of an immigration attorney. These waivers necessarily involve complex legal issues that must be carefully approached.