Section § 212(d)(3) of the Immigration and Nationality Act waives virtually all grounds of inadmissibility for non-immigrants including health, criminal, prostitution, smuggling, and unlawful presence. The only grounds of inadmissibility not waived are certain security-related grounds related to espionage, sabotage, genocide, and Nazi Persecution.
LEGAL REQUIREMENTS OF THE § 212(D)(3) WAIVER
§ 212(d)(3) Waivers are adjudicated by the Admissibility Review Office located in Washington D.C. The three criteria for granting a waiver under § 212(d)(3) are set forth in the 1978 Board of Immigration Appeals case the Matter of Hranka:
1. The risks of harm in admitting the applicant;
2. The seriousness of the acts that caused the inadmissibility;
3. The importance of the applicant’s reason for seeking entry.
§ 212(d)(3) Waivers are filed either at the U.S. consulate with jurisdiction of your place of residence or at a U.S. port of entry.
An applicant does not need to show a particularly compelling reason for visiting the United States. An ordinary reason (such as visiting a family member or conducting business) is sufficient. Non-immigrant waivers pursuant to INA § 212(d)(3) may only be issued for a maximum period of 5 years at a time. They are typically issued for 6 month or 1 year periods.
FILING WAIVERS AT U.S. CONSULATES ABROAD
Step 1. Meet Basic Visa Requirements . Before the consulate will consider any inadmissibility waiver issues, an applicant must establish that he or she is otherwise eligible for the particular visa being sought. Some non-immigrant visas, such as student or employment visas, require applicants to meet a long list of requirements.
The consular officer will typically review applicant's visa application, make an initial finding of inadmissibility, and an applicant to return with the waiver application and supporting documents. Some consulates will accept the waiver application on the day of the interview.
As part of this process, the consular officer will first check to make sure that the following conditions are met:
- The applicant is not inadmissible under INA 214(b) (i.e. does not have immigrant intent)
- The applicant is not inadmissible under INA 212(a)(3)(A)(i)(I), INA 212(a)(3)(A)(ii), INA 212(a)(3)(A)(iii), INA 212(a)(3)(C), or INA 212(a)(3)(E) (covering security-related grounds of inadmissibility)
- The applicant is not seeking a waiver of the non-immigrant documentary requirements of INA 212(a)(7)(B), which may only be waived under the provisions of INA 212(d)(4); and
- The applicant is, otherwise, qualified for the non-immigrant visa he or she is seeking.
Step 2. Obtain Consular Recommendation for Waiver. There is no special application form for the waiver and no application fee. It is strongly recommended, however, that the applicant bring to the interview a concise (1-2 page) cover letter requesting the waiver and highlighting the facts that support the favorable exercise of discretion, along with originals and photocopies of all relevant supporting documents. Applicants should also bring letters of support from members of the community that attest to the applicant’s ties to the country of residence and, for applicants with prior criminal convictions, to the person’s rehabilitation and good character. As noted above, consular officers may or may not look at supporting documents. It is therefore extremely important for the applicant to be prepared to explain the circumstances that led to the prior removal or to any other grounds of inadmissibility, and to discuss life changes (such as overcoming a drug addiction, establishing a new career, starting a family) that will persuade the consular officer that such circumstances will not occur again. Waivers are highly discretionary; therefore, more compelling reasons for a visit may be powerful factors in the applicant’s favor.
The consular officer will then review your waiver application, make a recommendation for issuance of the waiver, then submit it to the Admissibility Review Office based in Washington D.C. for a final decision.
Step 3: Adjudication by the Department of Homeland Security. This process is done electronically, via the Admissibility Review Information Service. The approval rate is very high. A denial by the ARO may be appealed to the Board of Immigration Appeals.
Nonimmigrant waivers are specific to the visa category for which they were issued and therefore cannot be transferred from one nonimmigrant category to another. Someone who changes visa status from within the U.S. may remain and work in the U.S. as authorized by the change of status since the waiver relates to admissibility, but will not be able reenter the U.S. under the original waiver following a departure.
FILING WAIVERS AT A U.S. PORT OF ENTRY
Filings at the U.S. port of entry is most relevant for visa-exempt nationals such as Canadians and requires use of the Form I-192. The criteria by which the I-192 waiver for Canadians (pursuant to INA 212(d)(3)) is judged is the same as those set forth in Matter of Hranka described above.
In addition to a detailed memorandum discussing the merits of your non-immigrant waiver application in light of the legal criteria set forth in Matter of Hranka, your waiver package should also include the following:
- Evidence of applicant's citizenship;
- Completed Form I-192 signed and submitted by applicant;
- U.S. Fingerprint card FD-258. This fingerprint card will be completed by a U.S. CBP Officer at the time of an application submission;
- A Form G-325A completed and signed by the applicant;
- Certified records of convictions (if applicable);
- Police certificate dated within 15 months of Form I-192 submission. (Canadians must obtain verification from the Royal Canadian Mounted Police (RCMP) by submitting your fingerprints on Form C216C.
DOCUMENTS TO ACCOMPANY YOUR WAIVER APPLICATION
- Statement explaining the circumstances of each arrest, conviction, and sentence or fine imposed:
- Evidence of your reformation of character or rehabilitation such as counseling or rehabilitation programs completed:
- Information regarding current employment, marital status, community service etc., or any other information you wish to be considered and you believe strengthens your request.
If you are inadmissible for one of the Health Related grounds identified in the INA, e.g., drug user or addict, provide evidence of treatment/rehabilitation. Such evidence shall include, but may not be limited to, the following: a recent drug test; credible, verifiable evidence related to rehabilitative history; statement from the applicant making clear his/her commitment to refrain from using controlled substances in the United States; credible, verifiable evidence outlining subject’s program for substitution therapy/treatment and/or continued care relative to his/her drug use/addiction if allowed to enter the United States.
If you have been found inadmissible under section 212(a)(9)(B) of the INA (unlawfully present in the United States) the following detailed information should be submitted regarding
- Current foreign employment.
- Previous U.S. employment.
- Family members presently living in the United States.
- Past and current United States and/or foreign business investments.
- Any and all ties you have to your present foreign country/residence.