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Section 212(d)(3) Nonimmigrant Visa Waivers

Waiver for Nonimmigrant Visa Under Section 212(d)(3)

Individuals seeking temporary entry into the United States that are subject to grounds of inadmissibility may qualify for a nonimmigrant waiver under Section 212(d)(3) of the Immigration and Nationality Act (INA). Section 212(d)(3) applies to individuals seeking entry for a temporary purpose–such as B-1/B-2 visitors, F or J students, H-1B or L-1 workers, or E-2 investors, who are subject to one or more ground(s) of inadmissibility. These grounds can include prior immigration fraud, certain criminal activity, a history of deportation, or health-related grounds, among others. The waiver provision applies to virtually all grounds of inadmissibility, except certain security related grounds. As this waiver provision applies to nonimmigrant visitors only, those permanently immigrating to the U.S. based on petitions from family members, fiancé(e)s and employers are not eligible for the Section 212(d)(3) waiver.

Unlike many applications decided by Department of State officers in Embassies and Consulates overseas, whether or not to grant a nonimmigrant waiver of inadmissibility is within the discretion of the Department of Homeland Security (DHS). DHS officers employ criteria set forth by the Board of Immigration Appeals (BIA) in its decision in Matter of Hranka when considering Section 212(d)(3) waivers.

Matter of Hranka Matters

The criteria set forth by the BIA in Matter of Hranka to be used in adjudicating the nonimmigrant visa waiver are:

  1. The risk of harm to society if the applicant is admitted;
  2. The seriousness of the applicant’s prior immigration or criminal law violations; and
  3. 
The reasons for wishing to enter the U.S.

Immigration officers undertake a careful balancing of these three factors when determining whether the applicant should be banned from the U.S.–either temporarily, or in some cases, forever. In Matter of Hranka the BIA did not include rehabilitation as a criterion, but a close reading of the case shows that if the inadmissibility is due to past crimes, proof of rehabilitation may help the waiver applicant.

Other than setting out the framework for the adjudication of nonimmigrant waivers, the Hranka decision also reaffirms an important aspect of the waiver criteria.  Namely, a visa applicant need not prove a “compelling” reason for wishing to enter the U.S. For example, suppose a Brazilian residing in Vancouver, Canada wants to visit her sister in San Francisco, but she (the Brazilian) has an immigration fraud inadmissibility ground in her record. Immigration fraud is a lifetime bar.  However, if she qualifies under the Hranka factors, she need not prove that there is an urgent humanitarian need for her to visit her sister–only waiver eligibility, and that she qualifies for the visa.

How to Apply for the Section 212(d)(3) Waiver

Depending on an applicant’s given situation, there are two possible methods for seeking the waiver. Individuals that are already in possession of a visa may submit the waiver request directly to U.S. Customs and Border Protection (CBP) at a U.S. port of entry or pre-clearance office. The waiver should be filed in-person and in advance of the anticipated date of travel.

By contrast, applicants seeking a new visa will submit the waiver request directly to a consular officer working at an Embassy or Consulate at the time of application for a visa. Once the visa application is submitted with the waiver, the consular officer evaluates the underlying visa eligibility first. Setting aside the inadmissibility ground for a moment, the officer reviews whether the applicant is eligible for the visa to begin with. Assuming the applicant is, the officer refers the waiver to the CBP office of admissibility review in Herndon, Virginia to review the waiver, a process which takes  about 180 days. If CBP approves the waiver, the consular officer notifies the visa applicant and approves the visa.

Conclusion

INA Section 212(d)(3) provides for a generous waiver, unique in its broad range of potential beneficiaries. Because 212(d)(3) waivers are used in situations where grounds of inadmissibility to the U.S. apply, a successful case will necessarily involve complex legal issues that must be carefully approached.

It is strongly recommended that an attorney with significant experience in Embassy and Consular visa matters is consulted. The waiver application should contain a strong legal brief (written legal argument) outlining the relevant law and the reason why the specific case satisfies the Hranka factors. Additionally, the applicant must be eligible for the temporary visa sought. For foreigners with no other way to enter the U.S., the Section 212(d)(3) waiver might prove a good solution to facilitate legitimate business, tourist or student travel.

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