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212(d)(3) Non-Immigrant Waiver

Most grounds of inadmissibility can be waived for nonimmigrants

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Under section 212(d)(3) of the Immigration and Nationality Act (INA), the Department of Homeland Security (DHS) is authorized to waive many grounds of inadmissibility for people who have been previously deported, so long as they are not applying for green cards.  In other words, if you have previously been removed from the United States because you committed a crime, you are nevertheless eligible to apply for a border crossing card with a 212(d)(3) waiver.  If you do not have any criminal convictions, but you have multiple immigration violations (deportations or voluntary departures), you can still apply for a nonimmigrant visa with a 212(d)(3) waiver.

Which grounds of inadmissibility cannot be waived with a 212(d)(3) waiver?

INA Sec. 212(d)(3) will not waive terrorist or security-related grounds of inadmissibility.  Luckily, this is rarely a problem for most people, including those who have previously been removed from the United States.  A much greater concern, however, is that a 212(d)(3) waiver cannot be used to overcome a negative finding of preconceived immigrant intent under section 214(b).  This happens when a foreigner applies for a tourist visa, or border crossing card, and is denied because the consular official has concerns that the applicant will not return to his country of origin after entering the United States.  For this reason, the 212(d)(3) waiver is useless for people who have their applications denied for failure to demonstrate sufficient ties to their countries of origin.

It is very important to get the right advice prior to applying for a visitor's visa.   A consultation with experienced immigration lawyers can make all the difference, since a denied visa application means that the foreigner cannot even proceed to the second part of the process (the waiver application).

How do you apply for a 212(d)(3) waiver?

For people who already have nonimmigrant visas, the application for a 212(d)(3) waiver should be submitted to Customs and Border Protection (CBP) at the Port of Entry when they are attempting to enter the United States.  In those instances, CBP normally requires that the waiver application be accompanied with a Form I-192 Application for Advance Permission to Enter as a Nonimmigrant, and Form G-325 Biographic Information, along with the fee of $585.00.

However, most people who have been previously deported will apply for the 212(d)(3) waiver in connection with their applications for nonimmigrant visas at the U.S. Consulate.  Although the Department of State does not require a 212(d)(3) applicant to submit any additional forms, or pay any additional fees, it is nevertheless very important for a waiver application to be professionally prepared for submission to a consular officer.  A winning waiver application should include a cover letter that clearly and persuasively explains the factual and legal grounds that support a finding that the waiver should be granted.  Attached to the cover letter should be professionally organized supporting documentation that is appropriately cross-referenced in the cover letter.

How is a 212(d)(3) waiver processed and decided?

When a 212(d)(3) waiver application is submitted at the consulate, a consular official is the first person to review the request by interviewing the applicant and considering the information contained in the documentation contained in the waiver packet.  If the consular official recommends the waiver, the case is then forwarded to the Customs and Border Protection Admissibility Review Office (ARO).  If the consular official does not recommend that the waiver be granted, the applicant may request that the waiver application be submitted to the Department of State for an advisory opinion, which serves as a limited appeal mechanism.

A request for a waiver of inadmissibility under Section 212(d)(3) of the INA may be processed in as little as several weeks, but applicants should expect the process to take well over a month or longer.  If the waiver is approved, it may allow the nonimmigrant to visit the United States on a single occasion, or it may authorize multiple entries.