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Life After Deportation: Non-Immigrant Visas and 212(d)(3) waivers

Posted by Matthew Green | Jun 16, 2013 | 1 Comment

Deportation from the United States can be devastating.  Immigrants often spend many years in the United States, creating careers, friendships, and lives, all of which can be suddenly taken away from them.  Years later, after establishing new lives in their home countries, those who have final deportation or removal orders often still have the desire to return to the United States, even if it is for brief periods of time.  Although many of these people will be ineligible, often permanently, for an immigrant visa--a green card--they may nevertheless qualify for a non-immigrant visa with a waiver.

In some cases, a non-immigrant visa, usually a visitor's or a tourist visa, along with a waiver under Section 212(d)(3) of the Immigration and Nationality Act, may allow deportees to return to the U.S. for limited periods (e.g., up to 30 days) to visit with family and friends, to receive medical treatment, and for other legitimate reasons.  The 212(d)(3) waiver may waive a variety of grounds of inadmissibility, including previous deportations, criminal convictions, fraud or misrepresentation, and previous unlawful presence in the United States.

The more difficult hurdle for most deportees, however, will be receiving the non-immigrant visa.  The basic requirement that a non-immigrant visa applicant must meet is to establish that he or she does not have "immigrant intent."  This means that, despite having lived in the United States in the past and being deported, the applicant has no intention of staying in the United States is he or she receives a new visitor's visa. For people who were recently deported, and cannot demonstrate that they have solidly rooted lives in their home countries, the odds of successfully applying for a non-immigrant visa are low.

But, for those who were deported over 5 years ago, and who have clearly established their new lives in their home countries, there is a much stronger chance of receiving a non-immigrant visa.  Being able to show things like steady employment, family ties, and property ownership in the foreigner's home country are critical to the non-immigrant visa applicant's success.  A clear explanation that demonstrates the applicant's plan to return home after a short visit to the U.S. is also very important.

About the Author

Matthew Green

Managing Partner. Green | Evans-Schroeder (formerly Law Offices of Matthew H. Green) focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...


Gerald Burns Reply

Posted Jun 16, 2013 at 14:09:32

Excellent article Matt. 212(d)(3) waiver is a wholly under used mechanism because often viewed as futile. But as you point out well, key is re-establishing NI intent factors to have realistic chance of success. Leaves me wondering which posts are more open/generous with these waivers.

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