Nonimmigrant waivers for foreign visitors, students and workers seeking entry to the US

INDIVIDUALS seeking entry into the United States despite being subject to grounds of inadmissibility can consider a pardon, or “waiver” under Section 212(d)(3) of the Immigration and Nationality Act (INA). Section 212(d)(3) applies to individuals seeking entry for a temporary purpose–such as B-1/B-2 visitors, F or J students, H-1B or L-1 workers, or E-2 investors that are subject to grounds of inadmissibility. These grounds can include prior immigration fraud, certain criminal activity, a history of deportation, or health-related grounds, among others. The waiver provision applies to virtually all grounds of inadmissibility, except certain security related grounds. As this waiver provision applies to nonimmigrant visitors only, those permanently immigrating to the US based on petitions from family members, fiancé(e)s and employers are not eligible for the Section 212(d)(3) waiver.

Unlike many applications decided by Department of State officers in Embassies and Consulates overseas, whether or not to grant a nonimmigrant waiver of inadmissibility is within the discretion of the Department of Homeland Security (DHS). DHS officers employ criteria set forth by the Board of Immigration Appeals (BIA) in its decision in Matter of Hranka when considering Section 212(d)(3) waivers.

The Hranka factors

Specifically, three criteria set forth by the BIA in Hranka to be used in adjudicating the waiver are:

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

2) The seriousness of the applicant’s prior immigration or criminal law violations; and

3) The reasons for wishing to enter the US

Immigration officers undertake a careful balancing of these three factors when determining whether the applicant should be banned from the US–either temporarily, or in some cases, forever. In Matter of Hranka the BIA did not include rehabilitation as a criterion, but a close reading of the case shows that if the inadmissibility is due to past crime(s) proof of rehabilitation may help the waiver applicant.

Other than setting out the framework for the adjudication of nonimmigrant waivers, the Hranka decision also reaffirms an important aspect of the waiver criteria.  Namely, a visa applicant need not prove a “compelling” reason for wishing to enter the US For example, suppose a Filipina based in Canada wants to visit her sister in San Francisco, but she (the Canadian) has an immigration fraud inadmissibility ground in her record. Immigration fraud is a lifetime bar.  However, if she qualifies under the Hranka factors, she need not prove that there is an urgent humanitarian need for her to visit her sister–only Hranka eligibility, and that she qualifies for the visa.

How to apply for the 212(d)(3) waiver 

Depending on an applicant’s given situation, there are two possible methods for seeking the waiver. Individuals that are already in possession of a visa may submit the waiver request directly to US Customs and Border Protection (CBP) at a US port of entry or pre-clearance office. The waiver should be filed in-person and in advance of the anticipated date of travel. By contrast, applicants seeking a visa will submit the waiver request directly to a consular officer working at an Embassy or Consulate at the time of application for a visa.

Conclusion

The 212(d)(3) is a generous waiver, unique in its broad range of potential beneficiaries. Because 212(d)(3) waivers are used in situations where grounds of inadmissibility to the US apply, it is strongly recommended that an attorney with significant experience in Embassy and Consular visa matters is enlisted.  These waivers necessarily involve complex legal issues that must be carefully approached. The waiver application should contain a strong legal brief (written legal argument) outlining the relevant law and the reason why the specific case satisfies the Hranka factors. Additionally, the applicant must be eligible for the temporary visa sought. For foreigners with no other way to enter the US, the Section 212(d)(3) waiver might prove a good solution to facilitate legitimate business, tourist or student travel.

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Atty. Khurgel is a former USCIS and Department of State Embassy Officer with over ten years of government service and private immigration practice experience. His offices are located in Irvine, California.