Editorial Note on Part 40
Editorial Note: Nomenclature changes to part 40 appear at 71 FR 34520 and 34521, June 15, 2006.

§ 40.301 Waiver for ineligible nonimmigrants under INA 212(d)(3)(A). ( a ) *Recommendations under INA 212(d)(3)(A)(i).* ( 1 ) Consular officers, on their own initiative in cases they believe meet one of the criteria in paragraphs (a)(2)(i) through (v) of this section, may submit a report to the Department for possible transmission to the designated DHS office pursuant to INA 212(d)(3)(A)(i) (8 U.S.C. 1182(d)(3)(A)(i)), in the case of an alien who is classifiable as a nonimmigrant but who the consular officer knows or believes is ineligible to receive a nonimmigrant visa due to inadmissibility under the provisions of INA 212(a) (8 U.S.C. 1182(a)), other than INA 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), or (3)(E)(ii).
( 2 ) In response to a request from the Secretary of State, which shall be presumed to meet one of the criteria in paragraphs (a)(2)(i) through (v) of this section, or in response to a request from a visa applicant for a case that the consular officer has reason to believe meets one of the criteria in paragraphs (a)(2)(i) through (v), consular officers are required to submit a report to the Department for possible transmission to the designated DHS office pursuant to INA 212(d)(3)(A) in the case of an alien who is classifiable as a nonimmigrant but whom the consular officer knows or believes is ineligible to receive a nonimmigrant visa due to inadmissibility under the provisions of INA 212(a), other than INA 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), or (3)(E)(ii). ( i ) *Foreign Relations:* Refusal of the nonimmigrant visa application would become a bilateral irritant or be raised by a foreign government with a high ranking United States government official;
( ii ) *National security.* The nonimmigrant visa applicant's admission to the United States would advance a U.S. national security interest;
( iii ) *Law enforcement.* The nonimmigrant visa applicant's admission to the United States would advance an important U.S. law enforcement objective;
( iv ) *Significant public interest.* The nonimmigrant visa applicant's admission to the United States would advance a significant U.S. public interest, or
( v ) *Urgent humanitarian or medical reasons.* The nonimmigrant visa applicant's admission to the United States may be warranted due to urgent humanitarian or medical reasons.
( b ) *Recommendation to designated DHS office.* Consular officers may recommend directly to the designated DHS office that the alien be admitted temporarily despite his or her inadmissibility in any case where a waiver may be available, unless the consular officer has reason to believe that the applicant is inadmissible under INA 212(a)(3)(A)(i), (3)(A)(ii), (3)(A)(iii), (3)(B), (3)(C), (3)(D), (3)(E)(i), (3)(E)(ii), (3)(E)(iii), (3)(F), or (3)(G) . The Department may recommend that the Secretary of Homeland Security waive ineligibility under any ground in section 212(a) of the INA, except for sections 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), and (3)(E)(ii).
( c ) *Secretary of Homeland Security may impose conditions.* When the Secretary of Homeland Security authorizes the temporary admission of an inadmissible alien as a nonimmigrant and the consular officer is so informed, the consular officer may proceed with the issuance of a nonimmigrant visa to the alien, subject to the conditions, if any, imposed by the Secretary of Homeland Security.
[84 FR 19714, May 6, 2019]