Current Processing Times for the 212(d)(3) Non-Immigrant Waiver

212(d)(3) Waiver Processing Times

The American Immigration Lawyers Association has provided an update on current processing times for the 212(d)(3) non-immigrant waiver that coincides with the experiences of my clients who I have prepared and filed non-immigrant waivers for.

Waivers submitted at Land Border Ports of Entry (generally for Canadians filing 212(d)(3) waivers in conjunction with the Form I-192): The Admissibility Review Office is reporting at least 130 days from the date of receipt of the waiver application to reach a decision.  A full review of circumstances may take up to six months or longer depending on the complexity of the situation and completeness of the application.

Waivers submitted at U.S. Consulates: The Admissibility Review Office is reporting at least 130 days from submission by the U.S. Department of State.

For further information, please refer to detailed information on the 212(d)(3) waiver and my legal services for non-immigrant waiver clients.

You may also review detailed  information on the 212(d)(3) waiver filing and decision-making process.

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.

212(d)(3) Non-Immigrant Waiver Filing Process and Procedures

212(d)(3) Non-Immigrant Waiver Filing Process and Procedures In-Depth

Introduction to the 212(d)(3) Waiver for Non-immigrants

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.

The only grounds of inadmissibility not waived are certain security-related grounds:

  • espionage or sabotage or “any other unlawful activity”
  • overthrow of the U.S. government by force
  • inadmissibility on foreign policy grounds; and
  • participation in genocide or Nazi persecution

The ARO also consistently issues denials for waiver applications filed by sexual offenders such as sexual predators, pedophiles, and incest offenders.  The ARO relies upon the Adam Walsh Child Protection and Safety Act’s three-tier classification of sexual offenders and its mandates for tier-based registration periods.

Legal Requirements of the § 212(d)(3) Waiver

The three criteria for granting a waiver under § 212(d)(3) are set forth in the precedent decision 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.

In practice, the Admissibility Review Office in Washington D.C. will consider a number of factors in exercising discretion concerning the seriousness of the acts that caused the inadmissibility including:

  • the nature of the underlying offense that makes the applicant inadmissible;
  • the circumstances that led to the offense;
  • the recency of the offense;
  • whether the offense was isolated or part of a pattern of misconduct; and,
  • especially in criminal cases, whether there is evidence of reformation and rehabilitation.

The ARO will also determine the risk of harm if the applicant is admitted by considering factors that include:

  • the threat of terrorism or related activities,
  • whether there is a likelihood of continuing criminal activity,
  • whether admission will contribute to the illegal alien population, and
  • whether there is a risk to the general health in the United States.

212(d)(3)(A) Waiver Application Process

§ 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.

Filing waivers at U.S. Consulates Abroad

Each consulate has its own preferred method of accepting 212(d)(3)(A) waivers for consideration.  There is no specific form or filing fee for the 212(d)(3)(A) waiver application.  I always prepare a detailed legal memorandum detailing the merits of the case and how they meet the standards set forth in Matter of Hranka, the Foreign Affairs Manual, and other sources relied upon by the ARO.  The consular officer will review your visa application and make an initial finding of inadmissibility.

As part of this process, the consular officer will first check to make sure that the following conditions are met:

  1. The applicant is not inadmissible under INA 214(b) (i.e. does not have immigrant intent)
  2. 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)
  3. 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
  4. The applicant is, otherwise, qualified for the non-immigrant visa he or she is seeking.

If the consular officer decides to make a favorable recommendation for a waiver, they will forward the recommendation to the ARO by typing the request into an electronic form and submitting it electronically.  The ARO has access to the information on the Consular Consolidated Database so the waiver statement and supporting documents scanned into the system can also be accessed by the ARO.

The ARO will review the waiver recommendation and submit its response to the consular post through the Consular Consolidated Database along with an e-mail notification to the appropriate consular post.

Although the ARO can provide decisions in 30 days or less, it is my experience that approvals can take up to five months due to various government security clearances.

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.  Applications submitted to the CBP generally have to be filed in advance of the date of intended travel at a CBP-designated port of entry or pre-clearance office.  The 212(d)(3)(A) waiver using Form I-192 is then forwarded to the ARO for adjudication.  It can take 5-6 months for a decision.

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.

Validity of Approved 212(d)(3)(A) Waivers

Waivers can be approved for single or multiple entries.  First time waivers are generally granted only for a one year period.  After one or two one-year waivers, a five-year waiver may be granted.  An approved waiver will be annotated on the applicant’s visa with “212(d)(3)(A)” followed by the number of the paragraph of INA 212(a) which has been waived, the duration of stay that has been authorized, the port of entry (if specified in the order), and an indication of the purpose of the entry.

Form I-192 waiver approvals will specify one or more non-immigrant visa categories for which the 212(d)(3)(A) waiver has been approved.  It does not authorize admission in any other non-immigrant visa category not noted in the conditions attached to the approval.

212(d)(3)(A)waiver approvals are not renewed.  A new application and approval are required each time when it expires.  However, applicants inside the United States pursuant to an approved Form I-192 waiver do not have to leave the U.S. to apply for a new waiver.  They can travel to a port of entry inside the United States to submit a new waiver application.

A change or extension of status in the United States can be filed by non-immigrants who are inside the United States with an approved 212(d)(3)(A) waiver.  However, the previously granted waiver may be reviewed during adjudication of the application to change or extend status.

Appeals

For applicants who apply for 212(d)(3)(A) waivers through a U.S. consular post, denial of 212(d)(3)(A) non-immigrant waiver applications cannot be appealed.  The applicant can ask the consular officer why the application was denied but the consular officer may not issue a written explanation.  The applicant can re-apply and the passage of time or additional evidence may lead to approval in the future.

Form I-192 waiver applicants (typically from Canada) will be notified of the reasons for the denial as well as their rights to appeal to the Board of Immigration Appeals.

Expedited Approval of the I-601 Waiver, I-212 Waiver, and 212(d)(3) Non-Immigrant Waiver

I-601 Waiver and I-601A Waiver Expedite

The USCIS has had a long standing policy to accept requests to expedite processing of petitions or applications where the applicant or the petitioner demonstrates reasons that merit expedited processing of a petition or application.

While almost all I-601 waiver applicants outside the United States have an interest in expeditious processing, the USCIS states that only extraordinary circumstances that present certain compelling and urgent, time-sensitive reasons merit expedited processing of the I-601 waiver.

According to a memorandum dated 2011, the types of extraordinary circumstances that may, generally, merit expedited processing of a Form I-601 are those in which there are:

  • “time-sensitive and compelling situations that necessitate the applicant’s presence in the United States sooner than would be possible if the application were processed under normal processing times” or
  • “other time-sensitive circumstances that nonetheless merit expeditious processing, principally where the failure to expedite the adjudication could result in significant delays in family reunification.”

These situations may include, but are not limited to, situations in which the applicant establishes one or more of the following:

  • The applicant has urgent and critical medical needs that cannot be addressed in the applicant’s country;
  • An applicant’s family member in the United States has a serious medical condition and has urgent and critical medical needs related to that condition that require the applicant to assist the family member in the United States;
  • The applicant is faced with urgent circumstances related to the death or serious illness of a family member;
  • The applicant or qualifying family member is a particularly vulnerable individual due to age, serious medical condition, or disability and this vulnerability is exacerbated by the applicant’s presence outside the United States;
  • The applicant is at risk of serious harm due to personal circumstances distinct from the general safety conditions of those living in the applicant’s country;
  • It would be in the national interest of the United States to have the applicant in the United States (for example, the applicant’s presence in the United States is urgently required for work with a U.S. government entity); or
  • As described in a request from or for a member of the Armed Forces of the United States:
    • The applicant’s qualifying family member is a member of the military who is deployed or will soon be deployed; and
    • The applicant demonstrates that, in light of the deployment there are compelling reasons to expedite the request due to the impact of the applicant’s absence from the United States on the applicant, the qualifying family member, or their children, if any.

The above non-exhaustive list describes some examples of situations that may, depending on the facts of the case, merit a discretionary approval of a request to expedite adjudication of a waiver request.

However, these are not the only circumstances that may warrant expeditious processing.  There may also be other time-sensitive circumstances that do not necessitate the applicant’s presence in the United States sooner than would be possible under normal processing times, but that nonetheless merit expeditious processing.

For example, the applicant may be ineligible to receive a visa in the following month due to forecasted visa regression and therefore faces an even more prolonged and unanticipated separation from family members if the application is not expedited.

Similarly, the applicant may request that the case be expedited to prevent a child not covered by the Child Status Protection Act from aging out before visa issuance.  There also may be circumstances in which a prior USCIS error merits expeditious processing of a request.

Requests must include sufficient evidence to support the claimed need for expedited processing or an explanation of why that evidence is not available.  For example, if the request is based on an urgent, serious medical condition, the applicant should provide a medical report.  If the request is based on urgent need by a U.S. government entity to have the applicant in the United States, the applicant should provide a letter from the entity supporting the expedite request.

My office has successfully obtained expedited approval of applications for the I-601 waiver.  I also regularly obtain expedited approval of the I-129F Petition for Alien Fiancee and I-130 Petition for Alien Relative.  In my experience, the “extraordinary circumstances” discussed in this article form the basis for successful expedite requests for the I-601 waiver, the I-212 waiver, the 212(d)(3) non-immigrant waiver, as well as other relative-based petitions.  The most common basis for expedited approval that I encounter is military deployment of the U.S. citizen petitioner.