If you have a criminal record or other grounds of inadmissibility, entering the US may seem daunting. Fortunately, there are legal pathways, such as the 212(d)(3) waiver, that can help you overcome these barriers. Under Section 212(d)(3) of the Immigration and Nationality Act (INA), the Department of Homeland Security (DHS) is empowered to waive numerous grounds of inadmissibility for individuals who have previously been deported or are deemed otherwise inadmissible, provided that they are not applying for adjustment of status to lawful permanent residency. Thus, individuals who have been removed from the United States due to criminal activities remain eligible to apply for a border crossing card accompanied by a 212(d)(3) waiver. Furthermore, individuals who lack criminal convictions but possess multiple immigration violations, such as deportations or voluntary departures, are also permitted to apply for a nonimmigrant visa with the assistance of a 212(d)(3) waiver. This is a waiver to obtain a non-immigrant visa, such as a B-1 or B-2 visa or a work visa.
Grounds of Inadmissibility Not Waivable Under a 212(d)(3) Waiver
It is pertinent to note that the INA Section 212(d)(3) waiver does not extend to terrorist or security-related grounds of inadmissibility. Fortunately, such cases are infrequent for most applicants, including those with prior removals. A more significant concern is that the 212(d)(3) waiver cannot be utilized to remedy a negative determination of preconceived immigrant intent under Section 214(b). This scenario arises when an individual applies for a tourist visa or border crossing card and is denied due to the consular official’s apprehensions that the applicant will not return to their country of origin following entry into the United States. Consequently, the 212(d)(3) waiver proves ineffective for individuals whose applications are denied due to insufficient demonstration of ties to their home countries.
Application Process for a 212(d)(3) Waiver
Most individuals who have been previously deported or have criminal convictions will submit their applications for the 212(d)(3) waiver in conjunction with their applications for nonimmigrant visas at the U.S. Consulate. Although the Department of State does not require additional forms or fees from 212(d)(3) waiver applicants, it is crucial for the waiver application to be thoroughly and professionally prepared prior to submission to a consular officer. A successful waiver application should include a cover letter that clearly and convincingly articulates the factual and legal bases supporting the request for the waiver. In addition, the cover letter should be accompanied by well-organized supporting documentation that is clearly cross-referenced within the letter.
Processing and Determination of a 212(d)(3) Waiver
Upon submission of a 212(d)(3) waiver application at the consulate, a consular official is the initial reviewer of the application. This review includes an interview with the applicant and an evaluation of the documentation provided in the waiver packet. Should the consular official recommend approval of the waiver, the case is subsequently forwarded to the Customs and Border Protection Admissibility Review Office (ARO). Conversely, if the consular official does not recommend the waiver, the applicant has the option to request that the waiver application be submitted to the Department of State for an advisory opinion, thereby providing a limited appeal mechanism.
A request for a waiver of inadmissibility under Section 212(d)(3) of the INA may be processed in as little as several weeks; however, applicants should be prepared for the process to extend beyond one month or up to 6 months. If the waiver is granted, it may permit the nonimmigrant to visit the United States on a singular occasion or could authorize multiple entries.
The process is as follows:
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- Determine if a waiver is available.
- Determine if the criteria for a waiver would potentially be met.
- Put together a comprehensive waiver packet.
- Interview at the embassy for the underlying visa (for example, a B-1/B-2 visa) and present the waiver packet concurrently.
- The Consular Officer will send the request to CBP with a recommendation to approve or deny. CBP will render a decision usually within 6 months. If favorable, the Consular Officer will issue a visa to enter the US with an annotation on the visa stamp with the waiver approved.
Disclaimer: This article provides general information and should not be taken as legal advice. Immigration laws can change, so verify current regulations and consult a legal professional.