INA 212(d)(3) Waivers for Nonimmigrants Found Ineligible for a Temporary Visa Forgive Many Grounds of Inadmissibility

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:

• A diplomats and foreign dignitaries
• B-1/B-2 tourists and business visitors
• C transit visa
• D crewmembers
• E-1/E-2 investors
• E-3 Australian professionals
• F-1 students
• G employees of designated international organizations or NATO
• H-1B professionals
• H-2A/B agricultural or seasonal workers
• H-3 trainees
• I journalists and media
• J-1 exchange visitors
• L intra-company transferees
• M-1 vocational students
• O individuals with extraordinary ability
• P athletes, artists and entertainers
• Q international cultural exchange visitors
• R religious workers
• T victims of trafficking
• TN Mexican and Canadian professionals
• U victims of criminal activity
• V certain spouses and children of lawful permanent residents

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:

• Fraud and/or misrepresentation
• 3-year, 10-year, and permanent bars for unlawful presence
• Prior order of removal or expedited removal
• False claim to U.S. citizenship
• Crimes involving moral turpitude (CIMT), aggravated felonies, drug convictions and other criminal ground
• Prostitution
• Smuggling
• Health related bars
• and more.

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:

• Security-related grounds, such as espionage and sabotage
• Foreign policy considerations
• Participation in Nazi persecutions
• Participation in genocide

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:

1. 1. The risk of harm to society if the applicant is admitted to the U.S.
2. 2. The seriousness of the applicant’s prior immigration law or criminal law violations, which caused the inadmissibility.
3. 3. The importance of the applicant’s reasons for seeking to enter the U.S.

The Foreign Affairs Manual (FAM) at 9 FAM 305.4-3(C) adds the following other factors to be considered:

4. 4. Whether there is a single, isolated incident or patter of misconduct; and
5. 5. Evidence of reformation or rehabilitation.

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.”

Conclusion

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.