Consular Recommendation of the 212(d)(3) Non-Immigrant Waiver Application to the CBP

Relevant Factors for the 212(d)(3) Waiver

INA Section § 212(d)(3)(A) of the Immigration and Nationality Act states in relevant part:

Except as provided in this subsection, an alien (i) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General, or (ii) who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

INA §212(d)(3)(A) thus waives virtually all inadmissibility grounds for non-immigrants including:

  • health-related grounds (communicable disease, mental illness, drug abuser or addict);
  • criminal grounds (including crimes involving mortal turpitude, multiple criminal convictions, drug violations, and prostitution);
  • likelihood of becoming a public charge;
  • immigration violations (including failure to attend removal proceedings, misrepresentation, false claims of citizenship, alien smuggling, aiding and abetting unlawful employment, student visa abusers, and overstays subject to three– and ten-year bars);
  • grounds covering persons ordered removed upon arrival, unlawful voters, and U.S. citizens who renounced citizenship to avoid taxation; and
  • involvement in terrorist activities and association with terrorist organizations.

212(d)(3) non-immigrant waivers by visa applicants are generally filed at a U.S. consulate or embassy abroad.  Visa exempt nationals such as Canadians generally have to file in advance of their date of travel at a CBP-designated port of entry or pre-clearance office.  All 212(d)(3) waiver applications are then forwarded to the U.S. Customs and Border Protection’s Admissibility Review Office in Washington D.C.  Thus, it is not the U.S. Department State or the USCIS that ultimately makes the decision to approve or deny a 212(d)(3) waiver.  It is U.S. Customs and Border Protection.

The CBP ARO does consider the same factors used by the U.S. Department State when reviewing 212(d)(3) non-immigrant waiver applications but is not bound by them.  Specifically, the ARO will first look at whether the 212(d)(3) waiver was “recommended” by the U.S. consular officer.  In making a recommendation to CBP, State Department officers are instructed to include:

• The relevant humanitarian, political, economic or public relations factors;

• a statement (where applicable) that DOS is satisfied the alien has a residence abroad which he or she has no intention of abandoning;

• a statement that the alien is properly classified as a nonimmigrant;

• the officer’s precise recommendation and the reasons therefor.

Consular officers are also instructed that a 212(d)(3) non-immigrant waiver may be requested (except as precluded by statute) for any nonimmigrant alien whose presence would not be detrimental to the United States and that the law does not require that recommendations be limited to exceptional, humanitarian or national interest cases.

In fact, consular officers are instructed to exercise discretion and good judgment but may recommend waivers “for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.

In my experience however, some consular officers are not familiar with the 212(d)(3) waiver process.  I have had cases where thoroughly prepared 212(d)(3) waiver packages were initially not accepted by the consular officer at the visa interview; only to be accepted a few days later after repeated inquiries by my office and another visit by the applicant to the consulate.  It is important to be clear, concise, and persistent in these matters.

Once the 212(d)(3) non-immigrant waiver is received by the ARO, the reviewing officer at the CBP considers all of the above and also considers that the Congress has deemed these aliens inadmissible to the United States.  In considering the waiver, the CBP officer will weigh the benefit, if any, to the United States should the waiver be granted.  In situations where the proposed visit is for the purpose of medical treatment, the CBP officer will consider whether such treatment is available to the alien abroad.  Above all, CBP officers are reminded that granting of waivers of inadmissibility grounds should not be routine and available just for the asking.  Thus, it is extremely important that every 212(d)(3) non-immigrant waiver application be well-prepared with a detailed legal and factual analysis and well-documented with essential support documents.

However, there may be instances where the consular officer refuses to “recommend” a waiver to the ARO in the first place.  This may occur when they believe a waiver recommendation is not warranted given factors such as the recency and seriousness of the crime or offense, type of disability, reasons for the proposed travel to the United States and the probable consequences, if any, to the public interests of the United States.  What many applicants (and lawyers) do not seem to realize is that there is a process in place for mandatory referrals of 212(d)(3) waiver applications to the Department of State Visa Office for consideration of a “recommendation” to the CBP ARO:

Mandatory referrals are required in the following situations:

  • Any case where it is requested by the alien or an interested party in the U.S. that it be forwarded;
  • Any case where the consular officer knows or has reason to believe that pertinent considerations not available at the post may be available to or through the Department;
  • Prior refusals;
  • Any case where the alien’s presence or activities in the U.S. might become a matter of public interest or of foreign relations significance;
  • Any case in which the Department has mandated an advisory opinion be sought;
  • The case of any alien who is a national of a country which the U.S. does not recognize or with which we have no diplomatic relations;
  • The case of any alien not classifiable under INA Section 101 (a) (15) (A) or (G) but destined on official business to the United Nations;
  • Cases of any SILEX or BUSVIS/SILEX alien and of certain CHINEX or BUSVIS/CHINEX aliens;
  • The case of any Soviet applying for an I visa;
  • Any case involving 212(a)(3)(B);
  • Any cases in which the consular officer recommends a term of greater than one year.

Having said that, the decision-making of consular officers are always given deference.  It is always better to present a strong 212(d)(3) waiver application from the beginning and communicate constructively with the consular officer to secure a recommendation to the CBP ARO.

Once a waiver is approved, they are typically approved for a one year period with multiple entries allowed.  After the first or second extension, a 5-year validity 212(d)(3) waiver can be given.  However, keep in mind that multiple entry waivers are not given to an alien who:

• Has a mental or physical disorder;
• Is a narcotic drug addict or a narcotic trafficker (multiples have been granted before in special cases with DEA/Customs/FBI involvement);
• Is afflicted with a communicable disease;
• Was convicted of a crime involving moral turpitude and is less than 5 years post-release;
• Has a prostitution related activity within 10 years of visa application.