Form I-192, Nonimmigrant Waiver (Canadians)
Canadian citizens who are inadmissible to the U.S. and who would like to enter the U.S. for non-immigrant purposes, can apply for a waiver to overcome their inadmissibility pursuant to INA § 212(d)(3)(A)(ii). To submit the waiver application, the Canadian citizen applicant is required to submit Form I-192, Application for Advance Permission to Enter as a Nonimmigrant. together with supporting documentation, directly to U.S. Customs & Border Protection. (For a discussion of how all other foreign nationals and even permanent residents of Canada would apply for a waiver, please visit INA § 212(d)(3)(A)(i) Waiver.)
In general, there is a waiver for all grounds of inadmissibility, with the exception of drug trafficking and national security grounds.
The waiver is granted in the exercise of discretion; therefore, even if an individual meets the necessary requirements, he or she may still not be granted a waiver if determined not to merit one. The exercise of discretion involves a balancing of the negative and positive factors in the applicant's case.
When submitting an I-192 application, an applicant should present as many positive factors as possible to overcome any negative aspects of his or her ground of inadmissibility. In Matter of Hranka, the Board of Immigration Appeals ("BIA") outlined three factors to consider in deciding whether or not to grant an application. The three factors are as follows:
- The risk of harm to society if the applicant is admitted;
- The seriousness of the applicant's prior immigration law, or criminal law, violations, if any; and
- Nature of the applicant's reasons for wishing to enter the United States.
Applicants are strongly advised to file their I-192 applications with U.S. Customs and Border Protection (CBP) well in advance of the date they intend to travel (processing times range from 4-8 months). The I-192 application should be filed in person at a CBP-designated port of entry (such as the Peace Bridge Port of Entry in Buffalo, New York) or CBP-designated preclearance office (such as the Toronto Pearson Airport).
At the time the applicant submits the I-192 application, together with supporting documentation, the applicant will be fingerprinted and required to pay the necessary application filing fee.
When submitting the I-192 application, it should be accompanied by the following:
- Proof of citizenship and identity (i.e. copy of passport biographic page);
- Form G-325A, Biographic Information;
- Official police record, or evidence that no record exists, from your country of residence or nationality. Canadian filers can obtain this information from the Royal Canadian Mounted Police ("RCMP") by submitting your fingerprints on Form C-216C;
- If represented by an attorney, Form G-28, Notice of Entry of Appearance as Attorney or Representative;
- Written documentation demonstrating rehabilitation and character reformation related to your inadmissibility; and
- A copy of any previously issued Form I-192 decisions (favorable or otherwise).
Form I-192 Processing
After the I-192 application is filed with CBP, it is forwarded to the Admissibility Review Office (ARO) for processing. Processing times vary, but generally the ARO is taking six (6) to eight (8) months to adjudicate applications. Therefore, it is advised that waiver applications should be submitted as early as possible to allow plenty of time before the intended date of travel. In some cases, an emergency may create a need for a foreign national to enter while his or her Form I-192 application is still pending. If this happens, based on the the circumstances surrounding the foreign national's need to enter the U.S., he or she may apply for parole to enter the U.S.
If approved, the Canadian citizen will be issued a Form I-194, which the Canadian citizen will need to carry with them whenever they seek entry into the U.S. While the ARO initially issues the waiver approval notice for a period of one year, future renewals are usually approved for a period of two to three years, with the maximum allowable period being five years. Depending on the reasons for the Canadian citizen's inadmissibility, they may require waivers for the rest of their life or may only require waivers for a few years (e.g. until a unlawful presence bar expires).
For our clients, we prepare the I-192 application, gather the necessary information/documents from our client, and prepare a comprehensive packet outlining the client's eligibility for the non-immigrant waiver, including a legal brief which provides the client's background together with an analysis of how the client meets each of the factors outlined in precedent case law.