Most people who are refused a visa because they are inadmissible, for a conviction, a prior misrepresentation, an overstay bar, or a health ground, believe the refusal is the end. Some of them are told to consult an attorney about a waiver, and they find, correctly, that there is one. What many visa applicants don’t fully understand is how the request actually gets made, and by whom. I want to explain that, because it determines whether the waiver happens at all, and because it is where the Tourniquet Strategy I described in an earlier post does its most important work.
What 212(d)(3) Is
Section 212(d)(3) of the Immigration and Nationality Act allows nearly any ground of inadmissibility to be waived for a nonimmigrant, at the discretion of the Department of Homeland Security. The exceptions are a short list of security-related grounds. Everything else, including grounds that would be nearly impossible to waive for an immigrant, can in principle be waived for a visitor, a student, or a worker.
For anyone who needs a visa, the request goes from the consulate to DHS. That is the part that matters. The applicant does not file anything with DHS and has no way to send the request himself or herself. The consular officer decides whether to recommend the waiver, writes the recommendation, and forwards it. If the officer does not, the question never reaches DHS at all.
The Applicant Asks. The Officer Sends.
It is worth being precise here, because the point is easy to overstate. The applicant can ask for the waiver, and should. I tell clients to ask for it by name, at the window, and an applicant who does not ask is relying on the officer to think of it unprompted, which happens less often than it could. What the applicant cannot do is make the request. The applicant asks the officer. The officer asks DHS.
That changes what the exercise is. It is not an exercise in persuading DHS, which approves the large majority of the waivers consulates recommend. It is an exercise in persuading one officer, in one interview, to write a memorandum and send it. Most of the waiver recommendations DHS receives are ones the officer initiated without the applicant asking – because applicants, inexplicably, don’t ask. Everything that follows below is about making the ask and getting the officer to “yes.”
What the Officer Weighs
The factors are old and well known: the risk of harm to society if the applicant is admitted, the seriousness of the prior violation, and the reasons for the travel. Officers apply them, but they apply them after two other questions have been answered, and the applicant usually does not know about either.
The first is whether the applicant would otherwise be issued. A waiver removes an inadmissibility. It does not overcome 214(b). An applicant who has a conviction and also has weak ties is refused under 214(b), and the question of a waiver never arises, because there is nothing to waive the applicant into. When I was on the line, this was the most common outcome for inadmissible applicants, and most of them left believing the conviction was the reason. It was not. The conviction was never reached.
The second is whether the officer has the time to reach the waiver at all. A recommendation is a written memorandum, entered into a DHS system with a stated basis and supporting documents, and an officer cannot write it at the window with the next applicant already standing up. It has to be done later, and later is the same afternoon that already belongs to the hundred cases from that morning. Officers know this, and most of the ones I worked with wanted to recommend when the case was there. The problem was never the willingness. It was that the case had to be understood and written in time the officer did not have, and an applicant who does not solve that problem for the officer is leaving it to chance whether the officer can solve it himself.
Why There Is No 2.5 Minute Waiver Case
I wrote in an earlier post about why the visa interview is two and a half minutes long, and what that number does to an applicant who needs more time than that to be understood. A waiver applicant always needs more time than that. Consider what the officer has to do inside those two and a half minutes for an ordinary applicant: read the DS-160 for the first time, read the prior notes, check the passport, decide whether the applicant’s “narrative arc” is credible and whether it is reasonable, type a case note, and more. Now add an inadmissibility. The officer has to identify the ground, confirm it applies, decide whether it is waivable, weigh three factors, decide whether to write a memorandum, and then actually write it. None of that fits, and the officer knows it does not fit before the applicant finishes the first sentence.
People assume the simple case is different. One conviction, twelve years ago, sentence completed, traveling for a daughter’s graduation. It is not different. The officer still has to look at the disposition, still has to decide what it is under U.S. law, still has to satisfy himself or herself that it is the only one, still has to write. And the officer is doing that with an applicant in front of him who has just said the word conviction, which is the word that turns a routine interview into an unplanned block of work. The risk to the officer is not that DHS will decline the recommendation. The FAM tells officers not to hesitate, and a declined recommendation does not come back on anyone. The risk is the one I described in the 2.5-minute post: time. An officer who spends eight minutes on a waiver case has taken eight minutes from the line, and the line does not give them back. Under that pressure, an officer who cannot get to the bottom of the case before the interview ends has one decision available that fits the clock, and it is a 214(b) refusal that never reaches the ground. That is where the simple case usually ends, and not because anyone at the window wanted it to.
A few applicants did get waivers recommended from my window on the strength of the interview alone. They had overcome 214(b) cleanly, disclosed the ground in one sentence before I asked, had the disposition in hand, and had a reason to travel I could write in one line. I remember them because they were rare, and because I know the same applicant, at a different window on a fuller day, would have been refused. Thirty seconds of good presentation is necessary. It is not sufficient, and no applicant should plan on it being enough.
The Tourniquet, Applied to the Waiver
This is why nearly every waiver request in my practice is built on the Tourniquet Strategy. The applicant discloses the ground in one sentence, asks for the waiver by name, and asks the officer to place the case in 221(g) administrative processing so that the written request and the supporting documents can be reviewed outside the interview. The applicant is not asking for more time at the window. There is none. The applicant is asking the officer to take the case off the line and read it later, which is what I did on my own initiative for complex cases as an officer, and what not one applicant in 35,000 interviews ever asked me to do.
The ask does two things at once. It stops the bleeding, in the sense that it takes the case out of the two-and-a-half-minute clock before the clock produces a 214(b). And it answers the officer’s second question, which was time. The officer is no longer being asked to understand and decide a waiver case at the window, with a line behind the applicant. The officer is being asked to read something at his or her desk that afternoon, with the case already off the line. That is an easier yes, and officers give it.
What the Letter Has to Be
What the officer reads at his desk is what decides the case, and this is where most waiver attempts fail even when the applicant does everything right at the window. A letter that argues the client’s innocence, or that reads like a court brief, or that leaves the officer to assemble the facts from a stack of exhibits, does not get a recommendation. It gets set aside until the officer has time, and the officer never has time.
The letter that works is written for the two documents the officer has to produce. The first is the case note, the entry in the consular system that explains why this applicant overcomes 214(b) and what the inadmissibility is. The second is the waiver recommendation itself, which sets out the ground, the facts, the three factors, and the reason for travel in the form DHS expects. A properly prepared attorney letter brief gives the officer both of those, in order, in language the officer can adopt. The exhibits are attached in the sequence the officer will cite them. When the officer sits down with it, the work is not writing. The work is deciding whether he or she agrees, and an officer who is only being asked to agree with something already written says yes far more often than an officer who is being asked to build it.
I said above that the few applicants who got a recommendation from the interview alone did not hand me a lawyer’s brief. That is true, and it is not a contradiction. A brief slid under the glass during the interview is not read, because there is no time and because it lands as an attempt to have an argument the applicant should be making himself or herself. The same document, read after a 221(g) that the applicant asked for and the officer agreed to, is the case note and the memorandum written. What changes is not the document. It is when, and under what conditions, the officer reads it.
None of this works without preparation. The applicant still has to overcome 214(b) at the window on his or her own account, the ask has to be made in a way the officer can say yes to, and the letter has to be written by someone who knows what the case note and the memorandum need to contain and what will make the officer stop reading. An applicant who asks for a 221(g) with nothing behind it, or who uses the ask to avoid answering questions, will be refused under 214(b) and will have made the next application harder.
The Economic Hook
There is one more thing the letter needs, and it is the thing most waiver requests leave out. The third factor is the reason for travel, and the FAM adds a related one: the effect of the travel on U.S. public interests. Most applicants treat those as a box to fill with something personal. A wedding, a graduation, a holiday. Those are legitimate reasons, the FAM says so, and a waiver can be recommended for them. But an officer deciding whether to spend an afternoon on a memorandum is weighing what the United States gets out of it, and a holiday does not weigh much.
An economic hook does. A U.S. company that has hired this person and cannot fill the seat locally. A contract that does not close without this engineer on site. A plant that is idle until the technician who built the line arrives to commission it. A treaty investor whose business employs Americans and who cannot run it from abroad. I wrote about this in the context of expedited appointment requests, and the reason it works there is the reason it works here. The officer is not only asking whether the applicant deserves a waiver. The officer is asking what sentence goes in the memorandum under reasons for travel, and whether that sentence is one a reviewer in Washington reads and nods at. A dollar figure, an employer, a named project, and a date do that. A family visit, however sincere, does not.
The State Department has recently made this explicit in one respect: the FAM now tells officers that a positive effect on the public interest includes an applicant who earned a U.S. degree or U.S. credentials and is traveling to work for a U.S. employer in that field. That is a narrow addition, but it tells you which direction the Department is looking. The economic case is not a side argument in a waiver request. In my practice it is usually the argument, and the letter is built so that the officer can lift it into the memorandum as written.
What the Applicant Is Never Told
An officer who refuses an inadmissible applicant without recommending a waiver is not required to say so. The refusal sheet cites the ground, or cites 214(b) and says nothing about the ground at all. The applicant reads it, concludes he is permanently barred, and often does not apply again for years. He is not permanently barred. He was refused by an officer who did not recommend the only thing that could have helped him, and the next officer might.
That is the insider point. A refusal on an inadmissibility ground with no waiver recommendation is a decision by one officer on one day, exactly like a 214(b) refusal, and it can be revisited with a better-prepared application in front of a different officer. The preparation is what makes the difference, because the applicant is not asking to be issued. The applicant is asking the officer to ask, and asking the officer for the time to do it.
If you have been refused on an inadmissibility ground, or you know one is in your history and you need to travel, we recommend that you consult with us before the interview. The waiver has to be made easy for the officer to request, and that work, the ask and the letter behind it, happens before the window, not at it.
