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Citations for ILW.COM's Seminar
Consular Processing For Experts
Session 3 held on July 5th

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Provided by Poorvi Chothani

9 FAM 40.301 N2 Criteria for INA 212(d)(3)(A) Waiver Recommendation 9 FAM 40.301 N6.1 When to Submit Applications to DHS/Customs and Border Protection (CBP)
(CT:VISA-1641; 04-20-2011) 9 FAM 40.361 N6.2 When To Submit Applications To Department for Review
(CT:VISA-1672; 08-19-2011) 9 FAM 40.301 N6.2-1 When You Do Not Support the Application
(CT:VISA-750; 07-14-2005) 9 FAM 40.301 N6.2-2 When Alien Requests Waiver Action
(CT:VISA-750; 07-14-2005) 9 FAM 40.301 N6. 2-3 When Requesting Multiple Entry Waivers Valid for More Than One Year
(CT:VISA-1641; 04-20-2011)

Provided by Claire Nilson

9 FAM 40.301 N2 Criteria for INA 212(d)(3)(A) Waiver Recommendation
(CT:VISA-1033; 09-23-2008)

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

  1. The applicant is not inadmissible under INA 214(b);
  2. The applicant is not inadmissible 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), or INA 212(a)(3)(E);
  3. The applicant is not seeking a waiver of nonimmigrants documentary requirements of INA 212(a)(7)(B), which may only be waived under the provisions of INA 212(d)(4). (See 9 FAM 41.1, 9 FAM 41., and 9 FAM 41.3.; and
  4. The applicant is, otherwise, qualified for the nonimmigrant visa (NIV) he or she is seeking.

9 FAM 40.301 N3 Factors to Consider When Recommending a Waiver
(CT:VISA-750; 07-14-2005)
a. You may recommend an INA 212(d)(3)(A) waiver for any nonimmigrant whose case meets the criteria of N2 above [see 9 FAM 40.301 N2 above] and whose presence would not be harmful to U.S. interests. Eligibility for a waiver is not conditioned on having some qualifying family relationship, or the passage of some specified amount of time since the commission of the offense, 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 such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.
b. Consular officers should consider the following factors, among others, when deciding whether to recommend a waiver:

  1. The recency and seriousness of the activity or condition causing the alien's inadmissibility;
  2. The reasons for the proposed travel to the United States; and
  3. The positive or negative effect, if any, of the planned travel on U.S. public interests.

9 FAM 41.108 N1.3 Medical Examination for DUIs
(CT:VISA-1608; 12-03-2010) a. While alcoholism constitutes a medical condition, INA 212(a)(1)(A)(iii) (8 U.S.C. 1182(a)(1)(A)(iii)) does not refer explicitly to alcoholics or alcoholism. Evaluation for alcohol abuse or dependence is included in the evaluation for mental and physical disorders with associated harmful behavior. An alcohol abuser is not ineligible to receive a visa unless there is evidence of current or past harmful behavior associated with the disorder that has posed or is likely to pose a threat to the property, safety, or welfare of the alien or others. To ensure proper evaluation, you must refer applicants to panel physicians when they have:

  1. ) A single alcohol-related arrest or conviction within the last five years;
  2. Two or more drunk driving arrests or convictions in any time period; or
  3. If there is any other evidence to suggest an alcohol problem

Applicants who are referred to a panel physician due to drunk driving-related offenses must receive the full medical exam evaluation, less the vaccination requirement for NIV applicants. Chest x-rays and any other necessary testing must be conducted for the exam to be considered complete.
c. NIV applicants with a single drunk driving arrest or conviction within the last three calendar years who the panel physician finds to have a Class B or no physical or mental condition, who are otherwise eligible to receive a visa, and who have not had another drunk driving arrest or conviction since the original or previous exam do not have to repeat the medical exam with each new NIV application. If an applicant is found to have a Class A condition associated with alcohol abuse (a single DUI) or has two or more drunk driving arrests or convictions in any time period, then the applicant must be referred to the panel physician with each new NIV application if the original medical exam has expired.