The answer lies in INA § 212(d)(3), a broad waiver provision that allows applicants for admission as nonimmigrants to overcome almost any ground of inadmissibility. The waiver is thus available to the vast majority of inadmissible individuals. In fact, the only inadmissibility grounds that cannot be overcome are those related to foreign policy considerations and participation in Nazi persecutions.
It is within the discretion of the Attorney General to grant or deny the waiver, however, this waiver itself includes few statutory grounds of ineligibility. The Board of Immigration Appeals (BIA) has set forth the criteria to be evaluated in making a discretionary determination of whether or not to grant this waiver. In Matter of Hranka, 16 I&N Dec. 491(BIA 1978), the BIA listed three criteria for determining whether to approve or deny a Section 212(d)(3) waiver:
- 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
- The reasons for wishing to enter the US.
The reasons for wishing to enter the US need not be “compelling,” as the Foreign Affairs Manual (FAM) states: “The law does not require that such waiver action be limited to exceptional, humanitarian or national interest cases. Thus, while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether available abroad), business conferences, tourism, etc.” 9 FAM Section 40.301.
However, as broad as the exception may be, it does not ensure admission for everyone. In one famous example, British singer Amy Winehouse was denied a visa to enter the United States to attend the 2008 Grammy Awards. She had been nominated for awards in six categories and was scheduled to perform at the show. However, due to her drug addiction she was denied a visa at the US Embassy in London.