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, violations of U.S. immigration law, prior incidents involving misrepresentation or fraud, 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 (also sometimes called a "D-3" waiver).

What Is a Hranka or D-3 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 United States 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 United States
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 United States to make social visits is not disqualified from seeking a Hranka waiver, and won't need to demonstrate some urgent humanitarian need, although the reason for the visit is a factor in the decision to grant or deny the waiver.

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 or D-3 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 upon which to believe, that an applicant is coming to the United States 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 United States 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.

Additionally, if you are applying for the Hranka waiver as part of a visa application, your visa must be "approvable," in that you meet all the other criteria to qualify for the particular visa category, but for the ineligibility for which you need the waiver. For example, if you are applying for a B-2 tourist visa, but you have a drug possession charge from many years ago for which you need a waiver, you must first convince the consular officer that you will return to your home country after the visit. Only after the consular officer determines you otherwise qualify for the tourist visa will the officer consider whether or not to recommend the waiver.

Risks of Applying for the Hranka or D-3 Waiver

Throwing a D-3 waiver into the mix in a situation where U.S. immigration authorities seem hesitant to grant a visa should not be done lightly. You are essentially admitting that the ground of inadmissibility applies to you; akin to an admission of guilt. If the waiver is denied, that could taint all future immigration applications.

How to Apply for the Hranka or D-3 Waiver

An applicant who has not yet been granted a visa may directly request a Hranka waiver from U.S. consular officers at the time of applying for a visa at the consular post.

If you are already in possession of a valid visa and need a waiver for future travel, you have some options. You can apply at a designated U.S. port of entry or you can apply for a new visa overseas and request the waiver from the consular officer. If you are a citizen of Canada, you may also apply online through Custom and Border Patrol's (CBP) platform, E-safe.

For any of these processes, 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 United States, you must concretely show that you intend to leave the U.S. after your permitted immigration status comes to an end.

If you are applying for the waiver directly at the U.S. consulate and your ineligibility is for a prior criminal conviction, you will be required to provide court records. If you are applying for your waiver through CBP, you will need to submit a complete packet that contains your court records and meets other documentary requirements.

It might also be helpful to your application for the Hranka waiver to supply a brief, or a written legal argument, outlining the applicable law and the reasons why the specific case satisfies the law behind Hranka. A lawyer can help with this.

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, 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.