Visa Denial and Waiver

Visa Denial and Waiver

If your visa has been denied by the US Embassy or Consulate for fraud, material misrepresentation or overstay (resulting in 3-year or 10-year bar), you need a waiver under INA 212(d)(3). Waiver is a discretionary relief. 

What is 212(d)(3) waiver?

Section 212(d)(3) of the Immigration and Nationality Act (“the Act”) is a broad waiver provision that allows applicants for admission as nonimmigrants to overcome almost any ground of inadmissibility found in Section 212(a) of the Act. The only inadmissibility grounds that cannot be overcome by the 212(d)(3) waiver relate to foreign policy considerations and participation in Nazi persecutions.

The Section 212(d)(3) waiver is thus available to the vast majority of inadmissible individuals. The 212(d)(3) waiver must be anchored to a nonimmigrant visa, such as a tourist, student, H-1B or L visa. For example, an individual who has been deported from the United States because of a criminal conviction but has since returned to his or her home country and now has an offer of professional employment from a US company can petition for an H1B visa. 

Of course, it is within the discretion of the Attorney General to grant or deny the waiver. However, this waiver is important because it includes few statutory grounds of ineligibility. It could be used to obtain admission on a nonimmigrant visa for an applicant who had previously been deported from the United States or who had been found to have committed fraud, for example.

The Board of Immigration Appeals has set forth criteria to be evaluated by the Attorney General in making a discretionary determination under Section 212(d)(3). In Matter of Hranka, 16 I&N Dec. 491(BIA 1978), the BIA listed three criteria for determining whether to approve or deny a Section 212(d)(3) waiver:

1. The risk of harm to society if the applicant is admitted;

2. The seriousness of the applicant's prior immigration law, or criminal law, violations, if any; and

3. The reasons for wishing to enter the US.

The BIA did not elaborate on these basic factors in its decision. However, it did make clear that the reasons for wishing to enter the US need not be “compelling.” This sentiment is reflected in the Foreign Affairs Manual at 9 FAM Section 40.301:

“The law does not require that such waiver action be limited to exceptional, humanitarian or national interest cases. Thus, while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether available abroad), business conferences, tourism, etc.”

In Hranka, the BIA did not include rehabilitation as a criterion, but clearly based its decision in part on the rehabilitation of the applicant. Therefore, for applicants with criminal records, evidence of rehabilitation would certainly improve a 212(d)(3) waiver application.

The procedure for filing a 212(d)(3) waiver application is set out in 8 C.F.R. 212.4. The regulations provide two different procedures: for filing under Section 212(d)(3)(A)(for those nationalities requiring a visa) and under Section 212(d)(3)(B)(for certain visa exempt applicants). 

The 212(d)(3) waiver is available to inadmissible individuals that do not have an immigrant waiver available. For example, an alien who has been convicted of a crime involving moral turpitude within the last 15 years and who has no qualifying US citizen relative for a 212(h) waiver might still be able to enter the United States on a nonimmigrant visa with a 212(d)(3) waiver. Alternatively, if an alien has a qualifying relative but is not able to show sufficient hardship for a 212(h) waiver, he or she could maintain status as a nonimmigrant and wait for the 15 years to pass so that the 212(h) immigrant waiver would be available again.

Unlike most provisions of the Act, the 212(d)(3) waiver contains no bar for those convicted of aggravated felonies. Clearly, an individual convicted of an aggravated felony would have a difficult burden in satisfying the Hranka criteria. But for many people with no other options, it is certainly worth a try. 

For individuals who have been deported from the US, an I-212 application for permission to reapply for admission to the US is required within five years of deportation (or 20 years in the case of an aggravated felon). The regulations governing I-212 applications are found at 8 C.F.R. 212.2. An individual who has been deported and who is subject to a ground of inadmissibility would need to apply for permission to reapply (the I-212) and for a 212(d)(3) waiver. 

It should be noted that 8 C.F.R. 212.2 specifically states the following: “A temporary stay in the United States under section 212(d)(3) of the Act does not interrupt the five or twenty consecutive year absence requirement.” As a result, one could conceivably spend the entire absence requirement in the United States in nonimmigrant status.

The benefit of the 212(d)(3) waiver lies in the broad range of eligible applicants. However, these waivers are not always easy to obtain, particularly in the case of individuals with criminal convictions. In addition, the applicant must be eligible for a nonimmigrant visa. For inadmissible individuals with no other way to return to the United States, the 212(d)(3) waiver might provide a temporary solution to what can be a very difficult and lengthy time separated from family, friends or business matters.

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