Nonimmigrant Waivers

When a person is denied a nonimmigrant visa (such as B1/B2, H1B, L1, F1, O1, P1) because of a ground of inadmissibility, there is a general waiver, called a 212(d)(3) waiver, that can be submitted.  Other than certain security related grounds of inadmissibility, a 212(d)(3) waiver may be granted on a discretionary basis for a ground of inadmissibility as listed in INA 212(a).  For example, if the applicant had a prior conviction for a crime involving moral turpitude, or had committed misrepresentation, he or she may request a 212(d)(3) waiver.

There are several factors that may be considered in determining whether this type of waiver can be approved:

• The risk of harm to society if the applicant is admitted;
  
• The seriousness of the applicant’s immigration law violation; and
  
• The nature of the applicant’s reasons for wishing to enter the United States.
  

Unlike the various immigrant visa waiver options, which generally focus on family unity, specifically extreme hardship to a qualifying family member or even the passage of a specified amount of time since the occurrence of the act leading to inadmissibility, this waiver requires a true balance of different factors.  For example, the consular officer will weigh the gravity of the ground of admissibility against any compelling reasons the applicant may have for entering the U.S.  Or, the applicant’s character may be considered in determining whether he or she will pose a threat to the public should he or she be allowed to enter the U.S.

Given the rather flexible nature of this waiver, the applicant needs to consider difficult issues before deciding whether to apply for this waiver.  For example, if the applicant has been convicted of an aggravated felony and was removed from the U.S. within the last 6 months, the applicant should consider whether it is advisable to apply.  The serious nature of this ground of inadmissibility will make the consulate officer less likely to grant a waiver.  However, if an L1 visa applicant had committed a misrepresentation more than 10 years ago, and had been a law abiding citizen, gainfully employed with a multi-national company for the past 5 years, the consulate officer may find the reason for entering the U.S. compelling enough to grant the waiver.

There are 2 different ways that 212(d)(3) waiver applications are handled.  For most applications, the individual would follow the procedure for obtaining a nonimmigrant visa.  In other words, he or she would complete the nonimmigrant visa application, which in most cases will be the DS-160, make the visa appointment, and attend the interview.  During the interview, the consulate officer will likely deny the visa application.  At this point, the applicant may submit the 212(d)(3) waiver application.  The officer will take the application for review and decision.

If the applicant is Canadian, he or she will submit the 212(d)(3) waiver application as an I-192, Application for Advance Permission to Enter as Non-Immigrant, at a port of entry.  The application is reviewed by the U.S. Customs and Border Protection Admissibility Review Office.