Some nonimmigrants applying for a visa to enter the U.S. temporarily are found inadmissible for a variety of reasons and therefore unable to obtain their visa and enter the country until their ground of inadmissibility is waived. Fortunately, INA 212(d)(3) permits a nonimmigrant to apply for a waiver of many grounds of inadmissibility and be admitted “temporarily despite [their] inadmissibility.” The nonimmigrant waiver is incredibly generous and can waive most grounds of inadmissibility.
Who is a Nonimmigrant?
A nonimmigrant is any person seeking a temporary visa to enter the U.S. for a specific reason and a specific period of time, with the intent to return to their home country at the conclusion of their travel. The following is a list of nonimmigrant visa categories recognized under U.S. immigration laws:
The spouse and unmarried children under the age of 21 of the principal applicant are also able to seek a derivative visa under each category above.
What Grounds of Inadmissibility Can be Waived?
The nonimmigrant waiver found in INA 212(d)(3) is discretionary, but also incredibly generous, and waives most grounds of inadmissibility, including:
In these cases, a nonimmigrant can seek temporary forgiveness in order to briefly enter the U.S. for a specific period and specific purpose.
What Cannot Be Waived?
The only grounds of inadmissibility that cannot be waived pursuant to INA 212(d)(3) are:
Individuals found to be inadmissible pursuant to these grounds cannot seek a waiver.
Requirements for the Waiver
The criteria that applicants must meet for a 212(d)(3) waiver are not defined by statute. In Matter of Hranka, the Board of Immigration Appeals (BIA) listed three factors that must be considered in deciding whether to grant or deny the waiver. They are:
The Foreign Affairs Manual (FAM) at 9 FAM 305.4-3(C) adds the following other factors to be considered:
The BIA elaborated that the applicant’s reason for wishing to enter the U.S. need not be “compelling.” In fact, both the regulations and the FAM state that “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 or not available abroad), business conferences, tourism, etc.” The FAM further adds that “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.”
If granted, the 212(d)(3) waiver may be valid for up to 5 years but is sometimes granted for periods of 6 or 12 months in line with the purpose of the trip or the validity of the nonimmigrant visa. Once the visa expires, the person has to file a new waiver (along with appropriate visa) to re-enter the U.S. as a nonimmigrant.
Although it is discretionary and adjudicated inconsistently, the 212(d)(3) waiver is very generous and allows many individuals found inadmissible to the U.S. to seek a temporary visa and enter the U.S. temporarily in compelling circumstances. Given that these individuals are not otherwise able to enter the U.S., there is often nothing to lose and much to gain in trying for the waiver. Contact an attorney at Minsky, McCormick & Hallagan, P.C. if you need assistance in your 212(d)(3) nonimmigrant waiver.