Advanced Consular Processing Issues: Maximizing Success in § 212(d)(3)(A) Waiver Applications: From CEAC to ARO

By Matthew Hughes - Immigration Attorney and former Consular Officer

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This article is intended for practicing immigration attorneys and is not legal advice. Seek the advice of an attorney if you have questions about your specific situation.

In the landscape of U.S. immigration law, navigating the nuances of § 212(d)(3)(A) waivers presents a unique set of challenges for visa applicants deemed inadmissible under specific provisions of the Immigration and Nationality Act (INA). The waiver process requires an understanding of the law and demands strategic preparation and precise communication between attorney and client. In the context of consular waivers of inadmissibilities, immigration attorneys are tasked with guiding clients through a procedural maze that begins with the careful completion of the Consular Electronic Application Center (CEAC) forms, leads to a high-stakes consular interview, and culminates in a decision resting in the hands of the Admissibility Review Office (ARO). The journey from application to approval is fraught with potential pitfalls, where the difference between success and failure often hinges on the applicant's ability to present a compelling narrative that addresses their admissibility issues head-on. This article aims to shed light on practical strategies and insights that can enhance the prospects of securing a favorable outcome in the waiver process, emphasizing the critical importance of thorough preparation and informed advocacy.

Role of the Admissibility Review Office in Waiver Adjudication

The Admissibility Review Office (ARO) is an entity within Customs and Border Protection (CBP).? ARO is tasked with the adjudication process of 212(d)(3)(A) waivers, which are sought by nonimmigrant visa applicants found to be inadmissible under certain sections of the Immigration and Nationality Act (INA) (generally, §§ 212(a)(1) – (10) with some exceptions) but who may still be granted a visa if certain conditions are met.? ARO also handles consent to reapply when an applicant needs to request consent to reapply based on an ineligibility under INA 212(a)(9)(A)(i), INA 212(a)(9)(A)(ii), or INA 212(a)(9)(C).

When a consular officer encounters a visa applicant deemed inadmissible but potentially eligible for a waiver, the case can be forwarded to ARO for a detailed review and decision-making process. ?This step offers a pathway for inadmissible individuals to enter the United States, provided their entry is not harmful to U.S. interests and they meet other criteria set forth by ARO.

In cases where ARO grants a 212(d)(3)(A) waiver, it often imposes limitations on the visa's validity. ?The duration and specific conditions of the visa validity are determined based on the individual's circumstances and the nature of their inadmissibility.? First-time waivers are often granted for a shorter period than subsequent waivers, though ARO has loosened these policies in recent years.

Waiver Factors and Hranka

When ARO assesses applications for 212(d)(3)(A) waivers, it employs a set of criteria known as the "Hranka factors," named after the case, Matter of Hranka, 16 I&N Dec. 491 (BIA 1978). The Hranka factors are as follows:

1. The Risk of Harm to Society if the Applicant is Admitted to the U.S.: This factor assesses the potential threat or risk an applicant might pose to U.S. society if admitted. ARO evaluates the nature and severity of any past offenses or behaviors that led to the inadmissibility determination, considering whether there is a likelihood of recurrence. The evaluation aims to ensure that admitting the applicant does not compromise public safety or national security.
2. The Seriousness of the Applicant’s Prior Immigration Law or Criminal Law Violations: ARO carefully examines the gravity of the violations that resulted in the applicant's inadmissibility. This scrutiny includes looking at the nature of the offense, the circumstances under which it was committed, and any penalties that were imposed. The seriousness of past violations plays a crucial role in ARO's decision, as it reflects the applicant's adherence to legal norms and potential for future compliance.
3. The Importance of the Applicant’s Reasons for Seeking to Enter the U.S.: This factor considers the compelling nature of the applicant's need to enter the United States. Reasons may range from significant personal or family obligations to business requirements or participation in specialized programs. ARO weighs the importance of these reasons against the risks and seriousness of the applicant's past violations. The more compelling and urgent the need for the applicant's entry into the U.S., the more likely it is that ARO will view the application favorably, provided the other factors do not pose significant concerns.

Consular Perspective in § 212(d)(3)(A) Waivers?

Before Hranka comes into play, a visa applicant must successfully navigate the consular interview.? Consular officers play an important role in the 212(d)(3)(A) waiver process because they serve as the initial point of review for visa applications and potential ineligibilities.? When a consular officer encounters a case that may qualify for a 212(d)(3)(A) waiver, their decision to forward the case to the Admissibility Review Office (ARO) is pivotal. Importantly, forwarding a case to ARO is inherently considered a recommendation for approval of the waiver, reflecting the consular officer's assessment that, despite the inadmissibility, the applicant may be eligible for a waiver under the Hranka factors.?

Even in cases where a consular officer does not feel a waiver would be appropriate, a visa applicant can expressly request review by ARO at the visa interview, or for up to a year afterward. 9 FAM 305.4-3(E)(2).? ?Unless the visa is refused on non-waivable grounds, an applicant’s request for ARO review requires the consular officer to forward the information to ARO for consideration. ?Id. ?This creates a structural incentive for consular officers to add a denial under Section 214(b) in cases where 214(b) is a valid basis for visa denial and where the officer believes a waiver is not warranted.

Rather than limiting its application to immigrant intent alone, Section 214(b) is broadly interpreted by the Department of State, with an emphasis on whether an applicant meets the criteria for the given visa class.? Thus, an E-2 Treaty Investor applicant who clearly is not an intending immigrant but who has failed to make a substantial investment could be refused a visa under Section 214(b) because substantial investment is one of the criteria for that visa.? 9 FAM 302.1-2(B)(4).? Similarly, an intent to comply with the terms of a visa is an implicit prerequisite for any visa issuance, including a credible intent to adhere to the laws of the United States during any future visit.? The non-reviewable, non-waivable nature of 214(b) is advantageous to the consular officer because it prevents them from being forced to submit a waiver (which will be viewed by ARO as a recommendation for approval of the waiver) in a case where the visa applicant is perceived to be undeserving of accommodation.

Completing the DS-160 With an Eye Toward the Consular Interview and ARO Review

The thoroughness and accuracy of information submitted through the Consular Electronic Application Center (CEAC)/DS-160 form plays an important role in the visa application process. Information in the DS-160 can begin to communicate the reasons an applicant is qualified for a visa. When it comes to Section 212(d)(3)(A) waivers, the information in the DS-160 clues the consular officer in to the nature of inadmissibility and sometimes to the justification for seeking a waiver. Precise responses help to illustrate the context of any prior indiscretions, the applicant's connections outside the U.S., and the compelling reasons for their proposed travel to the United States.?

It's important to note that consular officers have differing approaches to reviewing the DS-160. In cases where an answer on the form suggests a visa ineligibility, the consular software is designed to flag the information, making it readily noticeable. The extent to which a consular officer reviews the form in further detail once they notice a possible ineligibility is a matter of personal approach. Some officers will take time to review any explanations included in the form, while others will save that time for a slightly longer interview and discuss the potential issues in that context.? Because of these differing approaches, including pithy yet complete explanations in the DS-160 is always recommended, but is not a substitute for thorough client preparation for the visa interview. A client’s ability to articulate their situation clearly and concisely during the interview is paramount, as this direct communication can significantly impact the consular officer's decision-making process.

Furthermore, in the event a waiver request is transmitted to ARO, the information in the DS-160 remains available ?to that office and can help to explain a client’s mitigating facts to the reviewer.

The Art of the Interview in Waiver Cases

In the context of the consular interview, it is important for clients to proactively discuss any admissibility issues at the outset of the interview. Despite comprehensive details that might have been provided in the DS-160 form, clients should operate under the assumption that the consular officer may not have thoroughly reviewed this information prior to the interview. The time-constrained nature of consular interviews means that officers may rely more heavily on the verbal exchange to assess the applicant's eligibility and intentions.

Therefore, clients should be prepared to articulate the circumstances surrounding their inadmissibility clearly and succinctly. This preparation involves understanding the specifics of their situation, the legal framework of their inadmissibility, and how they meet the criteria for a waiver under 212(d)(3)(A). The biggest challenge in consular lawyering is helping a client learn to remember and stick to their important and pithy talking points in the context of a very stressful interview.

Some suggested preparation strategies include conducting mock interviews, helping the client to prepare short, bulleted lists (not necessarily doing it for them), a discussion of strategies for relaxation, and helping the client visualize the entire interview process from arrival at the consulate through exit at the end.? Clients should not memorize speeches, but they should be coached on how to return to their talking points if they are interrupted by the interviewing officer.? (This is a simplification and interview prep strategies are worthy of at least their own article).? If a client is particularly nervous or lacking confidence, it can be helpful to remain outwardly optimistic about their ability to handle the interview as visualizing success can boost self-confidence. With careful preparation, a client can present a compelling case during the interview and ensure the consular officer is fully informed of the most important aspects of their application, even if those details were missed by the officer during review of the DS-160.

Moreover, a proactive stance with regard to ineligibilities and other bad facts can provide an opportunity for clients to demonstrate their credibility. Addressing potential issues directly can help build trust and may positively influence the consular officer's perception of the applicant's integrity and transparency.

Ideally, by the end of the interview, a visa applicant will have piqued the consular officer’s interest in their case and built rapport sufficient to result in a recommendation of a waiver to ARO.? While I never advise clients to attempt to hand documents through the window to a consular officer, it can be appropriate to hold up a printout or copies of relevant information at the end of the interview.? Once a client has the consular officer’s attention, the applicant can make a polite request that the consular section scan additional documentation into the case before sending a waiver request.? Doing so can ensure ARO has a complete picture of the applicant’s situation and any favorable facts.

Finally, the consular officer has the opportunity to write a short summary when sending the case to ARO, and gaining their sympathy during the interview can influence the tone of that statement.

Summary

Navigating the submission of a visa application and ensuring all the necessary and favorable information reaches ARO is a balancing act. Applicants must judiciously include important details in the DS-160 while being cognizant of the fact that consular officers may not delve into every aspect of this information. This necessitates a strategic approach where applicants proactively address and highlight key points during the consular interview, especially those related to admissibility issues and eligibility for waivers under 212(d)(3)(A). The challenge lies in effectively communicating the essence of the written application verbally, ensuring that the consular officer is well-informed and inclined to forward a positive recommendation to ARO. This process underscores the importance of thorough preparation, clarity in communication, and helping the client gain or refine their ability to present a persuasive narrative that captures the consular officer's attention and facilitates a favorable further review by ARO.