212(d)(3) Waiver

This type of waiver is available for someone seeking admission to the U.S. for a short stay after being deported due to a criminal conviction or having committed fraud to receive a prior immigration benefit, as two examples. The §212(d)(3) waiver allows nonimmigrant applicants to overcome most grounds of inadmissibility found in Immigration and Naturalization Act (INA) §212(a). If you are eligible for a nonimmigrant visa, the §212(d)(3) waiver can provide a short-term solution to a possibly long-term and burdensome separation from family, friends, and/or business associates.

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Who needs a §212(d)(3) nonimmigrant waiver?

In contrast to immigrant applicants who seek permanent residency in the U.S., nonimmigrant applicants are foreign nationals who wish to enter the U.S. on a limited basis. Nonimmigrant applicants who are inadmissible but seek to visit the U.S. for a short period of time should consider the §212(d)(3) waiver, particularly when an immigrant waiver is unavailable.

Our immigration attorneys have years of experience working on immigrant and nonimmigrant waivers. We understand your concerns when seeking assistance with your immigration case, and we can provide an honest and thorough evaluation of your particular situation.

What do I need to seek this type of waiver?

Generally, the §212(d)(3) waiver accompanies a specific type of nonimmigrant visa, such as a tourist visa (e.g., B-1/B-2), a student visa (e.g., J-1), or a work visa (e.g., H-1B). Attorney Goldstein has years of experience helping families apply for a wide range of visas, and he can help determine if you require a waiver when applying for a qualifying nonimmigrant visa.

Where can I apply for this type of waiver?

You can apply for a §212(d)(3) waiver at one of three locations:

  • through Customs and Border Patrol (CBP) at a port of entry, field office, or admissibility review office;
  • through U.S. Citizenship and Immigration Services (USCIS) (mostly in cases involving U visas or T visas); or
  • through a U.S. Department of State Consulate abroad.

Regardless of where you apply, our immigration attorneys will advise you on the process and how to present your case in the best light possible.

What grounds are not covered by the §212(d)(3) waiver?

You cannot obtain a §212(d)(3) waiver for political or security grounds, which include:

  • INA §212(a)(3)(A)(i)(I) – committed or plan to commit espionage or sabotage
  • INA §212(a)(3)(A)(ii) – committed or plan to commit any unlawful activity
  • INA §212(a)(3)(A)(iii) – planned or plan to overthrow the government by force
  • INA §212(a)(3)(C) – foreign policy grounds
  • INA §212(a)(3)(E)(i) – membership in the Nazi Party
  • INA §212(a)(3)(E)(ii) – participated in committing genocide

How will immigration officials decide whether to grant or deny the §212(d)(3) waiver?

As a discretionary matter, immigration officials can approve the waiver application as easily as they can deny it. Unfortunately, however, you cannot appeal or challenge the immigration official’s unfavorable decision.

According to Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the U.S. Department of Homeland Security will decide whether to grant or deny your waiver by focusing on three (3) criteria:

  1. the risk of harm to society if you are admitted to the U.S.;
  2. the seriousness of your criminal or immigration law violation; and
  3. your reason(s) for seeking entry.

Do I need to have a “compelling” or humanitarian reason for wanting to enter the U.S. with a §212(d)(3) waiver?

Unlike other waivers, the §212(d)(3) waiver does not require any extraordinary reason for wishing to enter the U.S. Instead, it requires only a legitimate purpose, such as:

  • visiting family
  • seeking medical attention
  • attending a business meeting/conference
  • tourism

What is the process for seeking a §212(d)(3) waiver?

If you have not yet obtained a visa, you may request a §212(d)(3) waiver concurrently at the time of applying for a visa at a U.S. consular post (e.g., a U.S. Embassy or Consulate abroad). If you have been granted a valid nonimmigrant visa but believe you are inadmissible to the U.S., you can apply for the waiver at a U.S. port of entry (e.g., an airport within the country).

Either way, the temporary waiver application is Form I-192 Application for Advance Permission to Enter as Nonimmigrant [Pursuant to Section 212(d)(3) of the INA]. In addition to the actual application, we recommend that you submit:

  • an affidavit explaining your previous criminal and/or immigration violations, as well as stating the reasons for seeking entry to the U.S.
    •  because the request is associated with a nonimmigrant visa, the affidavit should unequivocally state that you intend to leave the U.S. at the end of your valid immigration status;
  • evidence of ties to your current country of residence, e.g., employment, education, and/or community involvement;
  • evidence of reform and rehabilitation, if applicable, e.g., treatment or counseling;
  • previous immigration and/or criminal records; and
  • letters of support attesting to your good moral character. How can our immigration lawyers help you re-enter the U.S. with a nonimmigrant visa?

How can our immigration lawyers help you re-enter the U.S. with a nonimmigrant visa?

If you or someone you know has been deported but wishes to return to the U.S. on a temporary basis, contact Goldstein Immigration Lawyers to help you. Attorney Goldstein has extensive years of experience guiding countless families through the complexities of the immigration process and intimately understands what you’re going through. Our immigration lawyers will be able to help, regardless of how difficult you think your case may be. Call us at (617) 722-0005 today to schedule an immigration consultation. We are eager to help!