Introduction to the 212(d)(3) Waiver for Non-immigrants
Non-immigrants are foreign nationals seeking to enter the U.S. on a temporary basis. They differ from immigrants who intend to live in the U.S. on a permanent basis.
Section § 212(d)(3) of the Immigration and Nationality Act waives virtually all grounds of inadmissibility for non-immigrants including health, criminal, prostitution, smuggling, and unlawful presence. The only grounds of inadmissibility not waived are certain security-related grounds related to espionage, sabotage, genocide, and Nazi Persecution.
Legal Requirements of the § 212(d)(3) Waiver
§ 212(d)(3) non-immigrant waivers (also referred to as 212(d)(3)(A) waivers) are adjudicated by the Admissibility Review Office located in Washington D.C. The three criteria for granting a waiver under § 212(d)(3) are set forth in the Matter of Hranka:
1. The risks of harm in admitting the applicant
2. The seriousness of the acts that caused the inadmissibility
3. The importance of the applicant’s reason for seeking entry.
Both Dept. of State regulations and the Foreign Affairs Manual provide that:
“while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” 22 CFR 40.301; 9 Foreign Affairs Manual 40.301 N3
§ 212(d)(3) non-immigrant waivers are filed either at the U.S. consulate with jurisdiction of your place of residence or at a U.S. port of entry.
Non-immigrant waivers pursuant to INA § 212(d)(3) may only be issued for a maximum period of 5 years at a time. They are typically issued for 6 month or 1 year periods.
Filing waivers at U.S. Consulates Abroad
The consular officer will typically review your visa application, make an initial finding of inadmissibility, and ask you to return with the waiver application and supporting documents. Some consulates will accept the waiver application on the day of the interview. There is no filing fee to apply for a § 212(d)(3) non-immigrant waiver at the US consulate.
As part of this process, the consular officer will first check to make sure that the following conditions are met:
The applicant is not inadmissible under INA 214(b) (i.e. does not have immigrant intent)
The applicant is not inadmissible under INA 212(a)(3)(A)(i)(I), INA 212(a)(3)(A)(ii), INA 212(a)(3)(A)(iii), INA 212(a)(3)(C), or INA 212(a)(3)(E) (covering security-related grounds of inadmissibility)
The applicant is not seeking a waiver of the non-immigrant documentary requirements of INA 212(a)(7)(B), which may only be waived under the provisions of INA 212(d)(4); and
The applicant is, otherwise, qualified for the non-immigrant visa he or she is seeking.
The consular officer will then review your waiver application, make a recommendation for issuance of the waiver, then submit it to the Admissibility Review Office based in Washington D.C. for a final decision.
Filing waivers at a U.S. Port of Entry
Filings at the U.S. port of entry is most relevant for visa-exempt nationals such as Canadians and requires use of the Form I-192. The criteria by which the I-192 waiver for Canadians (pursuant to INA 212(d)(3)) is judged is the same as those set forth in Matter of Hranka described above.
In addition to a detailed memorandum discussing the merits of your non-immigrant waiver application in light of the legal criteria set forth in Matter of Hranka, your waiver package should also include the following:
- Evidence of your citizenship.
- Completed Form I-192 signed and submitted by you (no copies).
- A properly executed Form G-28, if a lawyer like myself is representing you on the I-192 waiver application.
- U.S. Fingerprint card FD-258. This fingerprint card will be completed by a U.S. CBP Officer at the time of submission of your application.
- A Form G-325A completed and signed by you.
- If you have a criminal record in any other country’s court system, you must also obtain a copy of the official court record from the actual court of conviction indicating plea indictment, conviction and disposition for each and every crime. If such record is not available, you must obtain an official letter from the court of jurisdiction stating the reason why a copy of the record is not available.
- Canadians must obtain verification of your criminal record or evidence of a lack thereof from the Royal Canadian Mounted Police (RCMP) by submitting your fingerprints on Form C216C. The returned Civil Product and any accompanying records must be dated and endorsed by the RCMP within 15 months of submission with your Form I-192. For instructions, addresses and payment information, please visit the RCMP website.
If you are inadmissible to the United States because of a criminal conviction, you should submit a statement in your own words, signed by you, explaining the circumstances of each arrest, conviction, and sentence or fine imposed.
In addition, the I-192 waiver should be accompanied by evidence of your reformation of character or rehabilitation such as counseling or rehabilitation programs completed, current employment, marital status, community service etc., or any other information you wish to be considered and you believe strengthens your request.
If you are inadmissible for one of the Health Related grounds identified in the INA, e.g., drug user or addict, you will need to provide evidence of treatment/rehabilitation. Such evidence shall include, but may not be limited to, the following: A recent drug test; credible, verifiable evidence related to rehabilitative history; statement from the applicant making clear his/her commitment to refrain from using controlled substances in the United States; credible, verifiable evidence outlining subject’s program for substitution therapy/treatment and/or continued care relative to his/her drug use/addiction if allowed to enter the United States.
If you have been found inadmissible under section 212(a)(9)(B) of the INA (unlawfully present in the United States) the following detailed information should be submitted regarding
- Current foreign employment.
- Previous U.S. employment.
- Family members presently living in the United States.
- Past and current United States and/or foreign business investments.
- Any and all ties you have to your present foreign country/residence.
Why Hire The Law Offices of Michael S. Cho
- I have secured immigration waivers since 2002 for applicants who come from countries around the world including Brazil, Canada, Colombia, Ecuador, Mexico, the Philippines, Romania, and the United Kingdom. I have clients who reside in states throughout the United States.
- Since U.S. immigration law is federal, I am legally authorized to represent clients who reside in states throughout the United States as well as around the world on these matters.
- I maintain a very high success rate on getting waivers approved on behalf of my clients. I personally handle every important detail of your legal representation. Please do realize however that past results do not constitute a guarantee , warranty, or prediction regarding the outcome of your legal matter.
- I utilize the latest in secure technology to effectively represent my clients no matter where they may reside. I respond to phone calls and emails throughout the day (and evening) and can engage in video conferences via Skype so that questions can be answered in face-to-face meetings regardless of where you are located.
- I am a long-time member of the American Immigration Lawyers Association, the State Bar of California, and a graduate of the University of Chicago Law School, where I studied law directly under distinguished scholars such as Professor Barack Obama, now President of the United States of America.
All of my clients receive my personalized attention consisting of the following services:
Unlimited consultations with a responsive immigration lawyer
You always have access to me personally via telephone and e-mail. This ensures that you get all of your questions answered to complete satisfaction from the moment your case is opened until your green card is secured.
Digital access to all of your immigration documents
Every single document you give to me along with all USCIS and Dept. of State correspondence and receipts are digitally scanned and securely stored with our law firm as part of your case file. This has proven invaluable for my clients located throughout the world who require instant access to critical documents before embassy interviews, USCIS appointments, and other important events.
Expert attorney preparation of your USCIS and consular forms
I personally prepare and review your application and meticulously check it for accuracy. I try to make sure that EVERYTHING is done right the first time, so that you avoid unnecessary delays or denials. I also help you gather all required supporting documents, complete all relevant USCIS and consular forms, and submit everything in the most expeditious manner possible.
Preparation of the 212(d)(3) non-immigrant waiver
I personally prepare and review your 212(d)(3) non-immigrant waiver application and go through several revisions to make it as powerful and persuasive as possible. I draft a personalized waiver statement citing legal case law (set forth in Matter of Hranka) tailored to your situation to maximize the probability of approval of your waiver application. I inform you of the supporting documents necessary to maximize your chances of getting the waiver approved. Typically, this consists of affidavits from people who know you and can attest to your good moral character and reputation in the community; your reasons for wanting to visit the United States; evidence of reform and rehabilitation such as therapy, employment, education, community involvement, and treatment or counseling; as well as your previous immigration and/or criminal records.
Constant monitoring and advocacy on your behalf
My work does not end with the submission of your petition. I keep tabs on your case as it is being processed, keeping you up to date on its status as well as notifying you of any relevant changes in immigration laws and procedures. The vast majority of my clients encounter no undue delays or problems with their cases.
Preparation for the interview
I personally prepare you for the consular interview. I provide a checklist of all the documents you gather and should take to the interview and go over the types of questions that are likely to be asked. Many have found this prep session invaluable in easing their fears and feeling confident going into their appointment.
Continued immigration support
Upon request, I can monitor your immigration status even after your case is resolved to ensure that you never fall out of legal immigration status. I try to inform you when additional filings or actions must be taken and handle everything in the same professional and expeditious manner as before.