The Following Article Was Prepared By ~~ American Immigration Attorneys, LLP
THE 212(D)(3) WAIVER – You may still be eligible for a US Visa
Recently our law firm has been receiving more and more calls from clients who wish to come to the United States, but believe that because of some “indiscretion” in the past they are not eligible for a visa. In some cases, we have been happy to inform our clients that these misdeeds don’t necessarily preclude them from coming to the United States, because they are eligible to apply for a waiver.
This article seeks to offer a brief explanation of the broad-based generic waiver allowing nonimmigrant visa applicants to overcome many grounds of inadmissibility. The scope of this article is to explain the law where such a waiver is available. It will not, therefore, delve into other waivers that may be available, or categories of inadmissibility or removeability for which waivers or other forms of relief are not available. This article is not intended to be a substitute for legal advice, as many nuances exist in immigration law, especially as they pertain to the facts of specific cases. For complete advice regarding your individual case, you should consult with an immigration attorney.
In the case of persons seeking nonimmigrant visas, the section of the Immigration and Nationality Act (I.N.A.) that provides for a waiver is 212(d)(3). Nonimmigrant visa holders are those who have entered the United States with permission, for a temporary period, with conditions attached. Examples include visitors for business or pleasure, students, H-1B visa holders and other temporary workers, treaty traders and investors, intracompany transferees, and foreign government officials.
GROUNDS COVERED BY THE WAIVER
A waiver under section 212(d)(3) of the I.N.A. allows nonimmigrant applicants to overcome many grounds of inadmissibility. Some of the grounds that are covered by the waiver include permanent grounds of inadmissibility, such as fraud or criminal conduct, as well as some grounds that are limited in duration, such as previous unlawful presence.
One recent case in which we have sought a waiver for a client involved a Canadian citizen who was inadmissible because of a conviction for possession of less than one ounce of marijuana over 30 years ago. At the time of his conviction, the client was just 18 years old, and the punishment inflicted was a mere fine of $100 Canadian. Although the Canadian government had no record of the conviction, United States Customs had asked the client about the conviction when he sought to enter the U.S., and had refused to grant him admission.
Another recent client seeking a waiver had been convicted of petty theft during a visit to the United States four years earlier. The charge was a misdemeanor, and the client had pled guilty and paid a fine of $300. When the client went to the U.S. Consulate to renew his nonimmigrant visa, they had refused to grant a renewal, and had even revoked the visa of the client’s wife.
FACTORS USED IN DETERMINING WHETHER TO GRANT A WAIVER
According to the statute, the waiver involves a discretionary decision to be made by the Attorney General. The Attorney General has delegated this decision making power to the Department of Homeland Security, U.S. Citizenship and Immigration Services (CIS, formerly the Immigration and Naturalization Service). Therefore, although the person seeking the nonimmigrant visa will often apply to the U.S. Consulate office closest to where they reside, the application will in most cases be forwarded to CIS.
The factors to be balanced by CIS were enunciated in a case called Matter of Hranka, decided in 1978. This case involved a Canadian citizen who had previously resided in the United States but had been deported in 1975 for having engaged in prostitution. She also had a history of heroin use. However, following her deportation she had returned to Canada and apparently had become a contributing member to society. The alien wished to obtain a visa so she could make trips to the United States in order to visit family, dine at restaurants, attend sporting functions, and for other social reasons. The Immigration and Naturalization Service denied her application because they stated sufficient time had not passed to demonstrate that she been rehabilitated and that her reasons for wanting to visit the United States were not sufficiently compelling. The Board of Immigration Appeals (BIA) decided that the alien was eligible for such a visa because the alien had been rehabilitated, despite the short period of time that had passed, and that she need not show compelling reasons for wishing to visit the United States.
Matter of Hranka enunciated the following factors to be balanced in the discretionary adjudication process:
1. The risk of harm to society if the alien is admitted;
2. Seriousness of the alien's criminal or immigration violation or other ground of inadmissibility; and
3. The alien's reason for wanting to come to the U.S.
Thus in Matter of Hranka, the relative seriousness of the grounds of inadmissibility were balanced against the minor risk of harm to society presented by admission of the alien because of her rehabilitation and her justifiable reasons for wanting to come to the United States.
OTHER PROCEDURAL CONSIDERATIONS
As discussed above, the waiver is granted by the CIS, even though the visa is initially sought from a U.S. Consulate. In cases where a client knows in advance that he or she may be ineligible based on one of the grounds listed above, it is best to seek the waiver contemporaneously with the filing of the visa application, rather than wait until the visa application is denied. Although a client can seek reconsideration of a visa denial, this is not a good choice of strategy.
A fee is generally not required when applying for the waiver, if the visa is being sought at a U.S. Consulate. However in cases where the alien is exempt from obtaining a visa (primarily Canadian citizens), a fee is required along with the waiver application.
For waivers in consular processing cases, the duration of the waiver is usually the same as the duration of the nonimmigrant visa sought. For waivers where no visa is required (primarily Canadian citizens), waivers were can be granted for up to 5 years.
COMPARING THE 212(d)(3) WAIVER WITH OTHER WAIVERS
There are many waivers available under the I.N.A., but most of them are for aliens seeking immigrant visas (permanent residency). Two examples of these waivers include the I.N.A. section 212(h) waiver for inadmissibility based on criminal grounds, except drug related crimes, and the I.N.A. section 212(i) waiver for immigration-related fraud or misrepresentation. These waivers requires a showing of extreme hardship to the alien’s United States Citizen or Lawful Permanent Resident spouse or parent (or child in the case of 212(h)). Alternatively, the 212(h) section waiver can be sought when 15 years have passed between the filing of the visa application and the criminal ground sought to be waived, the alien’s admission would not be contrary to U.S. welfare, and the alien can show he or she has been rehabilitated.
Case law regarding the definition of “extreme hardship” demonstrates that this is a tough standard to satisfy. Where an alien is inadmissible based on a criminal ground and less than 15 years have passed since conviction, but the alien is otherwise eligible for both an immigrant and nonimmigrant visa, it is often better to seek a waiver under I.N.A. section 212(d)(3). The alien can then be admitted under the nonimmigrant waiver, and wait to apply for the section 212(h) waiver until the passage of 15 years, where the lower standard becomes applicable.
The waivers available for persons seeking nonimmigrant visas cover fewer grounds of inadmissibility. One such waiver is the I.N.A. section 212(d)(4) waiver for aliens not in possession of a passport, visa or border-crossing card, usually granted on the basis of an unforeseen emergency. Another waiver is the I.N.A. section 212(d)(1) waiver for government informers. A third waiver is the I.N.A. section 212(d)(3) waiver for victims of human trafficking or other victims of criminal activity. Waivers are also available under I.N.A. section 212(a)(9)(A)(iii) for aliens who have been previously removed or under I.N.A. section 212(a)(9)(C)(iii) for aliens who have entered without inspection. Both of these waivers require the passage of certain amounts of time since the alien last departed the United States, depending on the seriousness of the immigration law violation. Finally, a waiver is available under I.N.A. section 212(d)(5) called discretionary parole. This provision allows for the temporary admission of aliens for “urgent humanitarian reasons or significant public benefit.”
Recommended Immigration Attorney
Steven Riznyk has been practicing immigration law for 15 years dealing with a variety of complex US immigration applications, problems and appeals.
Steven can be contacted for Immigration Consultation and Services at:
American Immigration Attorneys, LLP
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