A sliver of hope for those who are barred from the U.S.

The U.S. government metes out harsh punishment to foreign nationals who break U.S. immigration laws.  Illegal entries into the United States, certain criminal acts, and other types of misconduct may result in a foreign national being barred from the United States for many years or even permanently.  While the bar is in place and a waiver is unavailable or is denied, the individual may not obtain admission to the United States as a permanent resident.  The Immigration & Nationality Act (INA), however, does provide foreign nationals with the opportunity to gain temporary, non-immigrant admission into the United States in spite of their inadmissibility.  This option derives from section 212(d)(3) of the INA and is commonly referred to as the 212(d)(3) waiver.

What are the grounds of inadmissibility?

Section 212(a) of the INA describes the “grounds of inadmissibility” to the United States.  Individuals who fit into these categories are barred admission into the country.  The categories in section 212(a) include health-related grounds, criminal grounds, national security grounds, and grounds related to past immigration violations and deportations.  Some of the most common actions that will render a person inadmissible include: (1) material misrepresentations on immigration applications, (2) illegal entry into the U.S. following a deportation or a previous period of unlawful presence of one year or more, (3) fraudulent marriage entered into for immigration purposes, and (4) criminal conduct such as prostitution and controlled substance violations.  This list is by no means exhaustive.  The 212(d)(3) waiver does not extend to most of the national security based grounds of inadmissibility in 212(a), such as espionage and participation in genocide.

What is the 212(d)(3) waiver?

Section 212(d)(3) allows a United States consular officer to issue a non-immigrant visa even though the visa applicant is considered inadmissible.  The waiver does not permanently eliminate the ground of inadmissibility, but it does allow the individual to achieve the short-term goal of entering the United States temporarily for reasons such as visiting family or attending to business matters.  The waiver is generally valid for a period of one year, and individuals must re-apply for it upon expiration.

How does one apply for the waiver?

In order to obtain a 212(d)(3) waiver, a visa applicant must submit a waiver request at the U.S. consulate abroad along with his or her non-immigrant visa application.  The consular officer will then forward the request to the Admissibility Review Office (ARO), which is a part of the Department of Homeland Security (DHS).  The ARO must wait for an FBI record check to clear before proceeding with the waiver request.  Once the FBI check is completed, the ARO adjudicates the waiver request and advises the consular officer of the decision.  In 2008, the average ARO processing time was ten days.  The consular officer then notifies the applicant of the decision and, in the event of an approval, proceeds with visa issuance.  The process is slightly different for Canadians and other individuals who do not require a visa to enter the U.S.  Those individuals must submit a Form I-192 along with the current filing fee of $545.

What are the eligibility standards?

In deciding whether to approve a 212(d)(3) waiver request, the ARO relies primarily on the standards outlined in the Board of Immigration Appeals (BIA) case, Matter of Hranka.  In that case, the BIA held that a 212(d)(3) waiver applicant need not have “compelling” reasons for entering the United States.  Rather, the adjudicating officer must consider three primary factors: (1) the risk of harm to society if the applicant is admitted; (2) the seriousness of the applicant’s immigration or criminal law violation, if any; and (3) the nature of the applicant’s reasons for wishing to enter the United States.  

A 212(d)(3) waiver applicant is advised to provide clear evidence that his entry poses little risk to society, that his past violation was not serious (or that he has fully rehabilitated from the past transgression), and that he has a good (although not necessarily compelling) reason for desiring a waiver.  The applicant should also provide evidence of his good moral character.  In addition to this documentary evidence, it may be advisable to submit a letter addressing the ground of inadmissibility and explaining the qualification for a waiver under Matter of Hranka.

In one recent case, Igbanugo Partners Int’l Law Firm successfully obtained a 212(d)(3) waiver for a foreign national whom U.S. immigration authorities had found to have entered into a marriage solely for immigration purposes.  As a result, he was permanently barred from obtaining permanent resident status and needed a waiver in order to enter the country temporarily to visit his family.  Igbanugo Partners prepared the 212(d)(3) waiver packet and established, among other factors, that he posed no risk to U.S. society, that he was remorseful for his past conduct, and that he had the bona fide motive of visiting his children and grandchildren in the United States in his old age.  The ARO approved the waiver request and the individual was able to make regular trips into the United States to visit his family.

Consult an Immigration Attorney

Because of the difficulty in assessing the grounds of inadmissibility and the application of the Matter of Hranka standards, as well as the fact that failure to present a thorough waiver application can result in denial, it is important that all foreign nationals consult an immigration attorney.

Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.


About Igbanugo Partners International Law Firm

Igbanugo Partners Int'l Law Firm is based in Minneapolis, Minnesota. It focuses on (1) U.S. immigration law and (2) international trade law in Sub-Saharan Africa.

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