Inadmissibility question

[David&Glaiza 6]

On 1/16/2023 at 6:47 AM, Mason_Stellar said:

me and my US citizen same sex partner meet in college. I feel ill(asthma), could not complete my education and overstayed my visa by more than a year and recuperated then returned to my home country(India). Now me and my partner are looking to tie the knot but have to settle for k1 fiance visa since same sex marriage is not allowed in India. What are our chances to unite with each other in the US after going through visa process? Will the officers be harsh on us? Are there a lot of red flags? is the case unwinnable? does it potentially look like "visa shopping" ? 

 

Asking for a friend 

Asthma is not an excuse to overstay your visa.  You're out of luck. Why would the US allow you to enter on a tourist when you have already violated your previous visa?

[Imperium 81]

 

9 FAM 305.4-3(A)  (U) Department of State's INA 212(d)(3)(A) Waiver Authority

(CT:VISA-1620;   09-07-2022)

(U) The Congress, in enacting INA 212(d)(3)(A), conferred upon the Secretary of State and consular officers the important discretionary function of recommending waivers for NIV ineligibilities to the Department of Homeland Security (DHS) for approval.  You should not hesitate to exercise this authority when the applicant is entitled to seek waiver relief and is otherwise qualified for a visa, and when the granting of a waiver is not contrary to U.S. interests.  The proper use of this authority should serve to further our immigration policy supporting freedom of travel, exchange of ideas, and humanitarian considerations, while at the same time ensuring, through appropriate screening, that our national welfare and security are being safeguarded.

9 FAM 305.4-3(B)  (U) Criteria for Waiver Recommendation

(CT:VISA-1620;   09-07-2022)

(U) The following conditions must be met before an INA 212(d)(3)(A) waiver can be recommended or granted:

(1)  (U) The applicant is not ineligible under INA 214(b);

(2)  (U) The applicant is not ineligible under INA 212(a)(3)(A)(i)(I), INA 212(a)(3)(A)(ii), INA 212(a)(3)(A)(iii), INA 212(a)(3)(C), INA 212(a)(3)(E)(i), or INA 212(a)(3)(E)(ii);

(3   (U) The applicant is not seeking a waiver of nonimmigrant documentary requirements of INA 212(a)(7)(B), which may only be waived under the provisions of INA 212(d)(4).  See 9 FAM 201.1; and

(4)  (U) The applicant is otherwise qualified for the NIV they are seeking.

9 FAM 305.4-3(C)  (U) Factors to Consider When Recommending a Waiver

(CT:VISA-1620;   09-07-2022)

a. (U) You may, in your discretion, recommend an INA 212(d)(3)(A) waiver for any nonimmigrant whose case meets the criteria of 9 FAM 305.4-3(B) above and whose presence would not be harmful to U.S. interests.  Eligibility for a waiver is not conditioned on having a qualifying family relationship, or the passage of a specific amount of time, or any other special statutory threshold requirement.  The law does not require that such action be limited to humanitarian or other exceptional cases.  While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose of travel.

b. Unavailable

c.  (U) You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1)  (U) The recency and seriousness of the activity or condition causing the applicant's ineligibility;

(2)  (U) The reasons for the proposed travel to the United States; and

(3)  (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

(4)  (U) Whether there is a single, isolated incident or a pattern of misconduct; and

(5)  (U) Evidence of reformation or rehabilitation.

d. (U) Explain your basis for recommending a waiver in the comments section of ARIS (the Admissibility Review Information System), including identifying any factors that lead you to conclude the applicant has been rehabilitated and unlikely to repeat actions that led to the ineligibility.  Any additional supporting documentation should be uploaded as this information will be considered by CBP's Admissibility Review Office ("ARO") and decreases the likelihood of an "Information Required" response from ARO.  All documents should be scanned into NIV using a jpeg image format.  The PDFs are not displayable to those outside of the consular section. 

 

 

It would be next to impossible to overcome Section 214(b). Countries like India where general pattern is mass immigration, CO are reluctant to grant  NIV waivers. 130 may be the best route.

I missed, did OP completed their degree? 

[TBoneTX 45,229]

A hijack question and replies to it have been split into a new thread in this forum.

[Redro 4,611]

7 hours ago, Imperium said:

 

9 FAM 305.4-3(A)  (U) Department of State's INA 212(d)(3)(A) Waiver Authority

(CT:VISA-1620;   09-07-2022)

(U) The Congress, in enacting INA 212(d)(3)(A), conferred upon the Secretary of State and consular officers the important discretionary function of recommending waivers for NIV ineligibilities to the Department of Homeland Security (DHS) for approval.  You should not hesitate to exercise this authority when the applicant is entitled to seek waiver relief and is otherwise qualified for a visa, and when the granting of a waiver is not contrary to U.S. interests.  The proper use of this authority should serve to further our immigration policy supporting freedom of travel, exchange of ideas, and humanitarian considerations, while at the same time ensuring, through appropriate screening, that our national welfare and security are being safeguarded.

9 FAM 305.4-3(B)  (U) Criteria for Waiver Recommendation

(CT:VISA-1620;   09-07-2022)

(U) The following conditions must be met before an INA 212(d)(3)(A) waiver can be recommended or granted:

(1)  (U) The applicant is not ineligible under INA 214(b);

(2)  (U) The applicant is not ineligible under INA 212(a)(3)(A)(i)(I), INA 212(a)(3)(A)(ii), INA 212(a)(3)(A)(iii), INA 212(a)(3)(C), INA 212(a)(3)(E)(i), or INA 212(a)(3)(E)(ii);

(3   (U) The applicant is not seeking a waiver of nonimmigrant documentary requirements of INA 212(a)(7)(B), which may only be waived under the provisions of INA 212(d)(4).  See 9 FAM 201.1; and

(4)  (U) The applicant is otherwise qualified for the NIV they are seeking.

9 FAM 305.4-3(C)  (U) Factors to Consider When Recommending a Waiver

(CT:VISA-1620;   09-07-2022)

a. (U) You may, in your discretion, recommend an INA 212(d)(3)(A) waiver for any nonimmigrant whose case meets the criteria of 9 FAM 305.4-3(B) above and whose presence would not be harmful to U.S. interests.  Eligibility for a waiver is not conditioned on having a qualifying family relationship, or the passage of a specific amount of time, or any other special statutory threshold requirement.  The law does not require that such action be limited to humanitarian or other exceptional cases.  While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose of travel.

b. Unavailable

c.  (U) You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1)  (U) The recency and seriousness of the activity or condition causing the applicant's ineligibility;

(2)  (U) The reasons for the proposed travel to the United States; and

(3)  (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

(4)  (U) Whether there is a single, isolated incident or a pattern of misconduct; and

(5)  (U) Evidence of reformation or rehabilitation.

d. (U) Explain your basis for recommending a waiver in the comments section of ARIS (the Admissibility Review Information System), including identifying any factors that lead you to conclude the applicant has been rehabilitated and unlikely to repeat actions that led to the ineligibility.  Any additional supporting documentation should be uploaded as this information will be considered by CBP's Admissibility Review Office ("ARO") and decreases the likelihood of an "Information Required" response from ARO.  All documents should be scanned into NIV using a jpeg image format.  The PDFs are not displayable to those outside of the consular section. 

 

 

It would be next to impossible to overcome Section 214(b). Countries like India where general pattern is mass immigration, CO are reluctant to grant  NIV waivers. 130 may be the best route.

I missed, did OP completed their degree? 

OP did not complete degree according to first post…