We recently received approval for a 212(d)(3) non-immigrant waiver prepared on behalf of a Chinese client who was subject to the fraud/misrepresentation life-time bar pursuant to INA Section 212(a)(6)(C)(i).
Our client was previously employed in the U.S. under the H-1B visa and had an EB-1 category immigrant visa petition filed on his behalf. Unfortunately, after self-preparing a TN visa application on his own, our client and his spouse were denied entry into the U.S. and both charged with fraud/misrepresentation due to inaccuracies discovered in their USCIS and Dept. of State application forms.
Years later, our client attempted to enter the U.S. temporarily for business purposes but was denied at the US consulate. He subsequently contacted my office for assistance in obtaining a waiver of INA Section 212(a)(6)(C)(i) and approval of a B-1 visa to temporarily visit the U.S. to attend an industry conference and meet with business partners.
We prepared a comprehensive 212(d)(3) non-immigrant waiver in the form of a legal brief discussing the three legal factors set forth by Matter of Hranka, 16 I&N Dec. 491 (BIA 1978).
In the case, Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the Board of Immigration Appeals reversed a district director’s denial of a waiver application filed by a Canadian woman who had been deported for engaging in prostitution and admitted to previous heroin use. She filed her application only two years after having been deported. She requested entry to visit relatives and engage in various tourist activities.
In overturning the district director’s decision to deny the application, the BIA accepted as proof of rehabilitation letters from the applicant’s mother, and the principal of the high school the applicant had attended, who is a psychologist. It held that the applicant’s reasons for entering the United States need not be compelling. The BIA articulated three criteria for granting a waiver under INA 212(d)(3)
1. The risks of harm in admitting the applicant;
2. The seriousness of the acts that caused the inadmissibility; and
3. The importance of the applicant’s reason for seeking entry.
Both Department of State and the Foreign Affairs Manual specify that any nonimmigrant may request a waiver as long as his or her presence would not be detrimental to the United States. They 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.” See 22 CFR 40.301 Foreign Affairs Manual (FAM) 40.301 N3. Furthermore, the Admissibility Review Office has confirmed that it will follow and adhere to Matter of Hranka in adjudicating requests for INA 212(d)(3) waivers.
In our client’s case, we addressed each of the factors laid out by Matter of Hranka emphasizing the importance of our client’s reason for entering the U.S.: namely, the vital importance of the products provided by our client’s company which is utilized by U.S. companies in projects integral to the national security and defense of the United States.
We emphasized the non-existent risk of our client overstaying or violating the terms of a B-1 visa, given the substantial venture capital funding raised by his China-based start-up; the number of employees employed by our client’s company; our client’s stellar background of executive and technological accomplishments; as well as his personal and financial ties to China and Canada (where his immediate family resides).
Based upon these factors, our client was approved for the 212(d)(3) non-immigrant waiver by the Admissibility Review Office in Washington D.C., and subsequently, for the B-1 Visitor Visa. These types of cases are difficult to get approved due to the tendency of US consular officers to attribute “immigrant intent” to non-immigrant visa applicants and consequently, refuse recommendation of the 212(d)(3) waiver. This was especially so in this case because our client had demonstrated immigrant intent in the past through the EB-1 category immigrant visa petition that was filed on his behalf.
Due to our extensive preparation of the waiver and repeated lobbying undertaken to ensure its adequate consideration and review by the U.S. consulate, our client is now able to enter the United States and further the success of his fast-growing company.