212(d)(3) Waiver for Non-Immigrants Explained

A waiver is a document through which one of the parties intentionally forfeits a known right or a claim, releasing the other party. When it comes to the 212(d)(3) Waiver for Non-Immigrants, it concerns foreign nationals who don’t intend to permanently live in the U.S. but rather those immigrants who intend to enter the U.S. temporarily. This section of the Immigration and Nationality Act practically waives all types of inadmissibility for nonimmigrants, including criminal, prostitution, unlawful presence, worked illegally in the US. have been refused entry at the border, smuggling, and other criteria. Certain acts cannot be waived, such as espionage, genocide, and nazi persecutions. 

Historically, this waiver is a legacy of Hranka, a 25-year old Canadian citizen who was inadmissible to the U.S. because she was previously involved in prostitution. When she filed a waiver requesting permission to come back to the U.S. as a nonimmigrant, the District Director of the Immigration and Naturalization Service rejected her for two reasons:

1. Not enough time has passed since the deportation, and she couldn’t have rehabilitated;
2. There were no humanitarian intentions in the applicant’s desire to come back to the U.S.

However the BIA (Board of Immigration Appeals) disagreed with this decision, and since then, these are the factors that need to be considered when deciding on whether the applicant should be granted a waiver:
Would the applicant’s admission harm American society?

1. How serious were the applicant’s prior immigration law or criminal law violations?
2. What is the nature of the applicant’s desire to come back to the United States?

There are two ways to file a 212 (d)(3), either at a U.S. Port of Entry or U.S. Consulate Abroad. A nonimmigrant can use this waiver for family visits, tourism, medical services, and so on. This waiver type can be valid for up to 5 years, but is typically issued for less than that. 

How to file a 212 (d)(3) waiver in the U.S. Port of Entry

Filing this way concerns visa-exempt nationals (for example, Canadians). Because they do not need a visa to enter the U.S. they are required to file Form I-192 (Application for Advance Permission to Enter as a Nonimmigrant). The criteria by which this form is adjudicated is the same as in the case of Hranka (which we described above). Aside from that, you also need to provide the following:

• Evidence of your citizenship;
• Form I-192 that was completed, signed, and submitted by you.;
• Properly completed Form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative), if a lawyer is representing you;
• A Form G-325A (Biographic Information (for Deferred Action)) once again completed and signed by you;
• In case you have a criminal record in any other country, you need to obtain the copy of the official court record from the court of conviction, where plea indictment, conviction, and the deposition are stated;
• If you are a Canadian, you must also obtain verification of your criminal record or evidence of its lack provided by the RCMP (Royal Canadian Mounted Police). You can do this by submitting your fingerprints on Form C216C.

In case you are inadmissible to the U.S. due to criminal conviction(s), you should submit a statement (written in your own words) explaining the circumstances of an arrest, conviction, and the sentence imposed. In addition, your I-192 waiver should include evidence of any rehabilitation program(s) you completed, your current employment, and marital status. These can prove that you have changed for the better, and can further strengthen your request.

If you are inadmissible on health-related grounds (for example, drug addiction), you will need to provide recent drug test results, evidence of completing a drug counseling program, or something else of that kind.

Those who were found inadmissible due to unlawful presence in the U.S. need to provide information about their current foreign employment as well as their previous U.S. employment. Information about any business investments, both abroad and in the U.S. should also be included, as well as a list of family members currently residing in the United States.

Your documentation needs to be thorough and carefully reviewed. It usually takes a minimum of 90 to 120 (sometimes even 180) days before ARO (Admissibility Review Office) decides on whether you will be granted a waiver. 

212 (d)(3) procedure in the U.S. Consulates Abroad

Filing for the waiver in the U.S. Consulate is a more common way of filing because it concerns most countries worldwide. There is no fee for this one, though some other costs may apply (biometrics, if fingerprints are needed).

The process starts when an applicant files a request for a visa at the consulate. The officer then reviews one’s application and makes an initial finding of inadmissibility. Some consulates don’t allow applying for the 212 (d)(3) waiver at the same time when filing for a visa.

We advise you to contact the U.S. consulate in your country to get more information on this. If the consular officer decides that you should be granted a waiver, he will forward your application to the CBP (Customs and Border Patrol) Admissibility Review Office in Herndon, Virginia where the final decision is made. However, keep in mind that even if you have been granted, the U.S. consulate decides on whether you’ll get the nonimmigrant visa or not. You can expect this decision to be made within six months after filing. 

How we can help you

With regard to the entire process we just went through, each case is unique. After all, the ones who decide on whether you will be granted the 212 (d)(3) waiver are humans, and the adjudicators can see some positive and negative sides of your application. The process can be quite challenging and stressful if you are on your own, so it’s a good thing to have a professional and responsive representative. If you need guidance through your filing process, contact our Immigration Lawyer Chicago to schedule a consultation today.