Temporarily Coming to the United States Despite Being Inadmissible

By Attorneys Devin M. Connolly & Nancy E. Miller

Visiting the United States is, not surprisingly, a goal shared by millions of people throughout the world.  While, theoretically, it should be simple to arrange; in actuality, it is a far more complicated process than making airline and hotel reservations and planning an itinerary.  And this process may become even more challenging when a person’s prior conduct makes them inadmissible.

A person will ordinarily not be permitted to enter the U.S. if they are deemed “inadmissible.”  The Immigration & Nationality Act (INA) has a long list of reasons why someone might be considered inadmissible.  A non-citizen’s inadmissibility may stem from criminal convictions, a prior deportation order, a bar due to previously being in the U.S without authorization, or something else entirely.  Fortunately, even with this history, it is possible to enter the United States as a visitor or with other non-immigrant visas if the alien is granted a waiver of their inadmissibility.

This little-known waiver is stated in Section 212(d)(3) of the INA.  Section 212(d)(3) of the INA is a generous provision which helps those seeking to enter the U.S. for a temporary purpose, despite any one of a number of inadmissibility grounds.  As mentioned above, these grounds can include prior crimes, immigration misrepresentations, deportation orders, and health-related grounds, among others.  Except for a few security-related grounds of inadmissibility, the Section 212(d)(3) waiver applies to virtually all grounds of inadmissibility.

This nonimmigrant visa waiver is only available to those who are applying to come to the U.S. temporarily.  This may include applicants for student visas, business or tourist visas, temporary workers, etc.  Intra-company transferees and investors hailing from treaty countries are also included, as are individuals of extraordinary ability and performance artists.  In contrast to those wishing to enter the U.S. temporarily, those permanently immigrating to the U.S. based on petitions from family members and fiancé(e)s are not eligible for the Section 212(d)(3) waiver.

The decision to grant a nonimmigrant waiver of inadmissibility is within the discretion of the Department of Homeland Security (DHS). The factors the DHS will consider in determining whether to favorably exercise discretion and grant the requested waiver are (1) the seriousness of the applicant’s criminal or immigration law violation; (2) the risk of harm to society if the applicant is admitted into the US; and (3) the applicant’s reason for seeking entry to the U.S. A thorough balancing of these elements is undertaken by the adjudicating immigration officer when determining whether the applicant should be permitted to temporarily enter the U.S.  There is no interview for the Section 212(d)(3) waiver, so the application, supporting evidence and declarations must be sufficiently strong and persuasive to convince the officer that the applicant is eligible and deserving of the waiver. 

The number and type of criminal and immigration violations are extremely relevant in determining whether to grant a requested waiver.  One who has a long and varied history of having committed crimes or immigration violations is less likely to be granted a waiver.  In addition, more serious convictions will also harm a person’s chances. 

In determining whether the applicant is a danger to society and why s/he is deserving of a favorable exercise of discretion, the officer looks for evidence of rehabilitation.  The applicant must show that s/he has changed and is no longer a threat to society.  How much time has passed since the most recent violation is important, and obviously a more serious conviction will require the applicant to show a greater level of rehabilitation.  And the more recent the offense, the harder it will be to get a favorable exercise of discretion.

A Section 212(d)(3) waiver is available for violations for which no immigrant visa waiver is possible.  For instance, a person who has made a false claim to United States citizenship or who has a lifetime bar in connection with unlawful presence may be eligible for the waiver if they are seeking to enter the United States as a nonimmigrant.  This means that a person who may never be allowed to enter the United States as an immigrant may still be able to come to visit family or to go to school or conduct business.   A non-citizen with a prior criminal or immigration history who wishes to enter the United States should always consult an experienced and knowledgeable immigration lawyer to determine whether they have any bars to admission and whether there are waivers available for those bars.

Waivers are not easily obtained.  Therefore, the alien should seek the assistance of a lawyer with a proven track record in obtaining them.