Can I apply for a 212(d)(3) waiver?
Generally, anyone who was found to be inadmissible and needs a non-immigrant visa to enter the U.S. can apply for a non-immigrant visa and a 212(d)(3) waiver at a U.S. Consulate abroad.
There are certain situations when you would not be eligible to apply for the 212(d)(3) waiver, such as for example if you violated any law of the U.S. related to espionage/sabotage or you participated in Nazi persecution, genocide, or torture).
What does the officer look at when adjudicating a waiver application?
The Adjudicating officer will look at the following factors when adjudicating a waiver:
- Why are you inadmissible?
- What is the recency and seriousness of the activity/condition that caused your inadmissibility?
- What is the reason for your proposed travel to the U.S.?
- Is there any positive/negative effect of your planned travel on the U.S. public interests?
- Was there a single isolated incident of why you are inadmissible or was there a pattern of misconduct?
- What evidence of reformation or rehabilitation can you provide?
- Is the applicant likely to repeat the actions that led to inadmissibility?
What is the procedure to apply for a 212(d)(3) waiver?
If you are inadmissible and you want to apply for a 212(d)(3) non-immigrant waiver, you will have to first apply for a non-immigrant visa and demonstrate that you qualify for the underlying visa category (e.g. if you are inadmissible and you want to apply/renew your E-2 visa, you will still have to demonstrate that you meet all the E-2 visa requirements).
Each Consulate has a different procedure for submitting waiver applications, but for example the US Consulate in London schedules you a regular visa interview to determine whether you qualify for the underlying visa category and will then also decide if you are eligible to apply for the 212(d)(3) waiver. The Consulate officer cannot make a decision on the waiver himself/herself, but can either:
- Make a waiver recommendation to the CBP Admissibility Review Office (“ARO”), or
- If the Consular Officer does not think that you are eligible for the waiver, he/she will not make the recommendation and will inform you that you are not eligible for the waiver.
Please note that it usually takes the Consulate/the government several months to approve the 212(d)(3) waiver (e.g. the Consulate in London indicates that it may take 6-8 months after your visa interview and after the Consular officer makes the recommendation to hear a decision on the waiver application).
There is an option to make an Expedite Request, but this is reserved for situations when there is an urgent humanitarian need for travel (e.g. urgent medical treatment or if your family member in the U.S. died and you need to attend a funeral).
Is 212(d)(3) waiver the “Hranka waiver”?
Yes. The 212(d)(3) waiver is often called the “Hranka waiver”. Matter of Hranka was a case, in which the Court of Appeals ruled that when adjudicating the 212(d)(3) waiver, the officer should look at least 3 factors and then apply a balancing test to the facts of the case:
- What is the risk of harm to society if the foreign national is admitted?
- What is the seriousness of the foreign national’s immigration/criminal law violation?
- Why does the foreign national wish to come to the U.S.? (e.g. Does the foreign national have a family in the U.S.)?
For example, in the Hranka case, a foreign national was found to be inadmissible as she previously engaged in prostitution. The Board of Appeal then applied the balancing test and indicated that since the deportation from the U.S. the foreign national has been living with her parents in Canada and she has been described as sincere and truthful by a close family friend. The court then concluded that the risk of harm to society is very small and that the applicant has no other criminal or immigration violations. Because the foreign national had many close relatives in the U.S., the court then ruled that a waiver should be granted to her.
Please click here to read more about the B-1 visa category.
Please click here to read more about the B-2 visa category.
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