Applying for a Nonimmigrant Visa (Hranka) Waiver

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 coming to the United States due to their criminal history, record of illness, likelihood of becoming a public charge and reliant on government assistance, or other negative factors.

Fortunately, U.S. immigration laws also provide "waivers," or the possibility of legal forgiveness, which one can request for certain grounds of inadmissibility. Here, we'll discuss a particularly useful one called the "Hranka" waiver.

What Is a Hranka Waiver?

Although most immigration law waivers require meeting narrow criteria, the "Hranka" waiver can apply in a larger number of cases. Nevertheless, it is truly only available if you are seeking to enter the United States on a nonimmigrant visa, meaning that you intend to stay for a temporary period and will return to your country of origin after your authorized period of stay ends. The Hranka waiver also requires that you meet certain prerequisites, some of which can be quite technical.

The Hranka waiver is set forth in Section 212(d)(3) of the Immigration and Naturalization Act, also known as the "I.N.A." It 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 at the discretion of U.S. immigration authorities. The waiver was dubbed "Hranka" later, because of an immigration court case called Matter of Hranka. This case outlines the three legal factors that must be weighed by U.S. immigration authorities in deciding whether to grant a waiver:

1. the risk of harm to society if a waiver applicant is admitted to the U.S.
2. the seriousness of an applicant's prior criminal or immigration violations, if any, and
3. the nature of the applicant's reason for wishing to enter the United States.

The Hranka decision also sets forth 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, and won't need to demonstrate some urgent humanitarian need.

Second, Matter of Hranka emphasizes that U.S. immigration authorities have broad 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 in some ways the most appealing feature of the Hranka waiver. While U.S. immigration authorities can deny the waiver for almost any reason, they can just as easily approve it on discretionary grounds. Thus, foreign nationals burdened with an inadmissibility bar still have a chance to make an argument to U.S. immigration officials.

Limits on Who Can Receive a Hranka Waiver

The Hranka waiver is not unlimited. There are some grounds of inadmissibility for which it is unavailable.

U.S. 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. Lastly, U.S. 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, you'd need to establish that you positively satisfy the three factors from Matter of Hranka. First, you must show that you do not pose a risk of harm to U.S. society. Second, you must prove that any prior criminal or immigration violations are not of a serious nature. Last, you 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., you must concretely show that you intend to leave the U.S. after your permitted 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.

Getting Legal Help

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 experienced immigration attorney. The attorney can give you a full analysis of your waiver request's potential for approval, and help you gather relevant documents and prepare the legal arguments, and communicate with U.S. immigration officials. These waivers necessarily involve complex legal issues that must be carefully approached.