CBP (United States Customs and Border Protection) exercises the authority to grant permission to enter the United States despite certain grounds of inadmissibility.
The I-192 waiver of inadmissibility is a type of waiver that is available to individuals who are seeking entry into the United States but are deemed inadmissible under U.S. immigration law. Inadmissibility can be based on a variety of grounds, including prior criminal convictions, health-related issues, and previous immigration violations.
Below is the law and regulations CBP uses to exercise its authority to grant or deny inadmissibility waivers filed on Form I-192:
Law and regulations governing the filing of inadmissibility waivers on Form I-192 with CBP
The authority to grant permission to enter the United States despite certain grounds of
inadmissibility is contained in Section 212(d)(3)(A) of the INA and Title 8, Code of Federal
Regulations, Part 212.4.
CBP’s exercise of such authority is discretionary. Each request for advance permission to enter as a nonimmigrant pursuant to Section 212(d)(3)(A) of the INA is considered individually and is based on the facts and circumstances presented and available to
CBP at the time of its decision.
This may include, for instance, the presence of extenuating or mitigating circumstances relating to the underlying grounds of inadmissibility, or a positive showing of rehabilitation when criminal activity is involved. Each decision is made by CBP based on its determination of whether the exercise of discretion is appropriate.
CBP’s exercise of discretion is primarily guided by a Board of Immigration Appeals case from 1978: Matter of Hranka, 16 I&N Dec. 491 (BIA
1978), which requires an examination of, at a minimum, the following factors:
(1) The seriousness of the underlying cause of the applicant’s inadmissibility;
(2) The risk of harm to society if the applicant is admitted;
(3) The nature of the applicant’s reason for wishing to enter the United States.
In addition, CBP examines:
(1) The nature of the offense;
(2) The circumstances that led to the offense;
(3) How recently the offense occurred;
(4) Whether it was an isolated incident, or part of a pattern of misconduct;
(5) Evidence of reformation or rehabilitation.
Relevant discussion in Matter of Hranka, 16 I&N Dec. 491 (BIA 1978):
Regardless of the fact that she is otherwise inadmissible, a nonimmigrant may be admitted into the United States temporarily in the discretion of the Attorney General. . .
The evidence in the record convinces us that the applicant has been
rehabilitated. . .
. . . The statements of the applicant’s mother impress us as being sincere
and truthful. They are supported by a letter from the principal of the
high school which the applicant attended. This man is a psychologist and
a close friend of the applicant’s family. . .
. . . It is true that these reasons for wanting to enter the United States
cannot be fairly characterized as “compelling.” However, there is no
requirement that the applicant’s reasons for wishing to enter the United
States be “compelling.”
In deciding whether or not to grant an application under section
212(d)(3)(B), there are – essentially three factors which we weigh together.
The first is the risk of harm to society if the applicant is admitted.
The second is the seriousness of the applicant’s prior immigration law, or criminal law, violations, if any.
The third factor is the nature of the applicant’s reasons for wishing to enter the United States.
Matter of Hranka, 16 I&N Dec. 491 (BIA 1978)
In this case, the risk of harm to American society if the applicant is allowed to enter is very small. The applicant has no other criminal or immigration law violations. The fact that she has many close relatives living in Detroit is substantial reason for desiring a waiver. Balancing the three factors, we conclude that the requested -waiver should be granted.
CBP recommendation of what must be submitted with the an I-192 application
US CBP provides guidance on documentation to be filed with Form I-192. The Form I-192 application package must include the following documentation:
- Evidence of your Citizenship.
- Completed Form I-192 signed and submitted by you (no copies).
- A properly executed Form G-28 must be included with the application if you have retained an authorized person to represent you on this specific application.
- U.S. Fingerprint card FD-258 or an electronically captured fingerprints that will be completed by a U.S. CBP Officer at the time of submission of your application.
- Form G-325A is not needed when filing the most recent version of the Form I-192. However, the ARO will continue to accept older versions that still require a Form G-325A completed and signed by you.
- If you have a criminal record in any other country’s court system, you must obtain a copy of the applicable record or an official letter from the court of jurisdiction stating the reason why a copy of the record is not available.
- Canadians: To obtain verification of your criminal record or evidence of a lack thereof from the Royal Canadian Mounted Police (RCMP) by submitting your fingerprints on Form C216C. The returned Civil Product and any accompanying records must be dated and endorsed by the RCMP within 15 months of submission with your Form I-192. For instructions, addresses and payment information, please visit the RCMP website.
- Canadians: Do not submit the Form I-192 application until you have obtained the documents from the RCMP. Incomplete packages will not be processed.
- A copy of the official court record from the actual court of conviction indicating plea indictment, conviction and disposition for each and every crime committed anywhere in the world.
- If you are inadmissible to the United States because of a criminal conviction, you should submit a statement in your own words, signed by you, explaining the circumstances of each arrest, conviction, and sentence or fine imposed. In addition, you should submit any evidence or explanation of your reformation of character or rehabilitation such as counseling or rehabilitation programs completed, current employment, marital status, community service etc. or any other information you wish to be considered and you believe strengthens your request.
- If you are inadmissible for one of the Health Related grounds identified in the INA, e.g., drug user or addict, you will need to provide evidence of treatment/rehabilitation. Such evidence shall include, but may not be limited to, the following: A recent drug test; credible, verifiable evidence related to rehabilitative history; statement from the applicant making clear his/her commitment to refrain from unlawful use of controlled substances, credible, verifiable evidence outlining subject’s program for substitution therapy/treatment and/or continued care relative to his/her drug use/addiction if allowed to enter the United States.
- If you have been found inadmissible under section 212(a)(9)(B) of the INA (unlawfully present in the United States) please submit detailed information regarding:
- Current foreign employment.
- Previous U.S. employment.
- Family members presently living in the United States.
- Past and current United States and/or foreign business investments.
Source: CBP published guidance February 2023
- Any and all ties you have to your present foreign country/residence.
Recommendation to work with an attorney to file your I-192 waiver
the I-192 waiver process can be complex and time-consuming, and it is recommended to consult with an experienced immigration attorney to determine if an I-192 waiver is the appropriate option in your specific case.
In addition to the evidence required by CBP
We understand the importance of presenting a strong case to secure your waiver of inadmissibility. When submitting your waiver application, our office prepares a detailed legal brief, specific to your case, covering all three essential factors required by Matter of Hranka, 16 I&N Dec. 491 (BIA 1978).
Our brief focuses on showcasing the positive aspects of your case, highlighting evidence your rehabilitation since your inadmissibility. Additionally, there may be more vital evidence that should be included in your case to submit a winning Form I-192 waiver. Such determinations have to be made on a case by case basis.
You can access Final Rule by the State Department issued on 05/06/2019: Visas: Waiver for Ineligible Nonimmigrants Under Section 212(d)(3)(A)(i) of the Immigration and Nationality Act at this link. Access to Matter of Hranka, 16 I&N Dec. 491 (BIA 1978) can be found at this link.
Rest assured, our team is committed to providing you with the highest level of legal expertise and support to achieve a successful outcome. Contact us today to learn more about how we can help you with your waiver application.
For more on timeframes, we are experiencing in obtaining approvals for Form I-192 Application for Advance Permission to Enter as a Nonimmigrant, please review the following article.
Have detailed questions about your I-192 waiver case? Schedule your consultation with us here.