INADMISSIBLE TO THE U.S.? SEEKING NONIMMIGRANT WAIVERS UNDER § 212(d)(3) OF THE INA

By: Attorneys Robert L. Reeves and Elsie Hui Arias

Question: I currently live in the Philippines, and am a native and citizen of that country. I was deported from the United States about three years ago for overstaying my tourist visa and working without authorization. I was also convicted for petty theft seven years ago while in the U.S. I understand that because of this deportation order, I am barred for five years from returning to the U.S. However, I would really like to travel to the United States to visit friends and family. Additionally, because I own an import/export business, I would like to meet with various U.S.-owned corporations to develop potential contacts. Is there any way for me to be able to come back to the United States for just a few months so I can meet with these U.S. companies and spend time with loved ones?

Answer: Yes, there is a possibility for you to be able to travel to the U.S. in the near future for these purposes by seeking a nonimmigrant waiver under § 212(d)(3) of the Immigration and Nationality Act (INA). This waiver, which is only granted in the discretion of the Attorney General, permits someone like you, who is considered inadmissible, to return to the United States on a temporary nonimmigrant visa, such as a B-1/B-2 visitor, H-1B worker, or L-1A executive.

There are three main criteria that will be evaluated by the Attorney General in your waiver application. First, he will consider the risk of harm to society if you are permitted to enter the United States. Second, he will take into account the seriousness of your prior immigration or criminal law violations. And third, he will examine your reasons for wishing to come to the United States. Any legitimate purpose to travel to the United States on a temporary basis—such as visiting family, attending businesses conferences, or obtaining specialized medical treatment—can meet the last requirement. Where a criminal conviction served as the basis of deportation, significant passage of time from that conviction and demonstrated rehabilitation will be necessary. Essentially, the Attorney General will be using a balancing test in evaluating your application; the equities must outweigh the adverse factors for a strong case.

In your situation, you can try seeking a waiver under § 212(d)(3), along with your application for a B-1/B-2 visa; your intended purposes should be deemed legitimate and your sole conviction for petty theft seven years ago should not present a major problem. However, because you were ordered deported three years ago and, as you correctly noted, you are barred from re-entering the United States for five years, you will also need to file an additional waiver application (I-212) to seek permission to re-enter the U.S.

The procedures and processing times for filing the § 212(d)(3) waiver application vary, depending on whether the applicant requires a visa to travel to the United States or is visa-exempt. Once granted, the § 212(d)(3) waiver is usually good for a year but can be extended and/or renewed in certain circumstances.

Because seeking a nonimmigrant waiver under § 212(d)(3) entails complex regulations and requires substantial supporting documentation, persons seeking such waivers should consult a knowledgeable and experienced immigration attorney.