What is a 212(d)(3) Non-immigrant Visa Waiver?
Some foreign nationals may be deemed inadmissible under INA 212(a), which covers bases including unlawful presence, criminal violations, and immigration fraud or misrepresentation. If a foreign national is considered inadmissible, then he or she must obtain a waiver of inadmissibility under INA 212(d)(3) if they are seeking admission to the county on a non-immigrant visa, such as a B1/B2 visitor visa. This waiver may be available for grounds that could otherwise not be waived if the applicant was seeking admission on an immigrant visa.
What are the Standards for a 212(d)(3) Waiver?
The standard for a non-immigrant visa waiver is significantly more lenient than the I-601 immigrant visa waiver standard. Based on the case precedent of Matter of Hranka, The Foreign Affair Manual (FAM) has reiterated the standard as follows:
a) You may recommend an INA 212(d)(3)(A) waiver for any non-immigrant whose case meets the criteria of N2 (see 9 FAM 40.301 N2 above) and whose presence would not be harmful to U.S. interests. Eligibility for a waiver is not conditioned on having some qualifying family relationship, or passage of some specified amount of time since the commission of the offense, or any other special statutory threshold requirement. The law does not require that such action be limited to humanitarian or other exceptional cases. While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose such a family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.
b) You should consider the following factors, among others, when deciding whether to recommend a waiver:
1. The recency and seriousness of the activity of condition causing the alien’s inadmissibility;
2. The reason for the proposed travel to the United States; and
3. The positive or negative effect, if any, of the planned travel on U.S. public interests.
How do I apply for a Non-immigrant Visa Waiver?
For applicants who already possess a valid visa, or is visa exempt (Canadians), the application is submitted to the Customs and Border Protection (CBP) at the port of entry or mailed to one of the designated pre clearance CBP offices. Usually, non-immigrant visa waiver applicants are seeking a visa at the same time as applying for the waiver. In such cases you file the waiver with the particular visa application with the consulate (if you have intent to immigrate issues under 214(b), then provide as much evidence of ties to your home country as possible, addressing it as a separate issue). No set form is used, you just apply for the visa with, and address all inadmissibility issues as part of the application for the non-immigrant visa. If you get the recommendation for the waiver from the consulate (takes about a month, all at the consular officer’s discretion to make a recommendation), it’s sent to CBP ARO (Admissibility Review Office) in D.C. (they should make a decision in about 1-4 months). The waiver may be granted for a period of up to 5 years, although first time applicants generally do not get a 5 year waiver. A denial of the waiver can be appealed to the BIA under 8 CFR 1003.1(b)(6).
What is the Attorney’s Role in Preparing a Nonimmigrant Visa Waiver?
Although the standard to grant a 212(d)(3) waiver appears lenient, it is important to carefully document and support each criteria. An attorney will ensure that appropriate documentation is submitted, that the quality of the documentation is optimal, and that the eligibility for the waiver is presented in a properly organize manner. Consistency in the documentation is also important since waivers can otherwise be denied for a lack of credibility. Rehabilitative factors are also useful to support a waiver, and an attorney will be able to identify and present them as well.
To discuss INA212(d)(3) non-immigrant visa waivers and other alternatives with an experienced immigration lawyer from the Shah Peerally Law Group, feel free to contact us by email or call us at 510-742-5887.
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