By Attorney Robert L. Reeves and Jeff L. Khurgel
An often overlooked tool for individuals seeking entry into the United States despite an inadmissibility on their record is the Section 212(d)(3) waiver. Section 212(d)(3) of the Immigration and Nationality Act 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. These grounds can include prior crimes, immigration misrepresentations, or health-related grounds, among others. The waiver provision applies to virtually all grounds of inadmissibility, except certain security related grounds.
With such broad coverage, it is imperative that our foreign friends considering a temporary visit to the U.S. are aware of the parameters and powers of Section 212(d)(3) relief. The nonimmigrant visa waiver is only available to those who are applying for a temporary visa, such as a student, visitor, business or temporary worker visa. Intra-company transferees and investors hailing from treaty countries are also included, as are individuals of extraordinary ability and performance artists. Ever wonder how that favorite musician or athlete made it into the U.S. for a concert despite their past troubles with the law? Meanwhile, 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.
Whether or not to grant a nonimmigrant waiver of inadmissibility is within the discretion of the Department of Homeland Security (DHS). The DHS uses criteria set forth by the Board of Immigration Appeals (BIA) in its decision in Matter of Hranka when considering Section 212(d)(3) waivers. Specifically, three criteria set forth by the BIA in Hranka are:
1) The risk of harm to society if the applicant is admitted;
2) The seriousness of the applicant’s prior immigration or criminal law violations (if any); and
3) The reasons for wishing to enter the U.S.
A thorough balancing of the above elements is undertaken by the immigration officer when determining whether the applicant should be banned from the U.S. – either temporarily, or in some cases, forever. In Matter of Hranka the BIA did not include rehabilitation as a criterion, but a close reading of the case shows that where the inadmissibility is based on a past crime, the applicant’s rehabilitation may play a positive discretionary role. Further, the Section 212(d)(3) waiver contains no bar for those convicted of aggravated felonies. While an individual convicted of an aggravated felony would have a difficult burden in satisfying the Hranka criteria, a showing of rehabilitation would be a positive discretionary factor.
A Section 212(d)(3) waiver should also be of particular interest to individuals who would otherwise not be eligible for an immigrant visa waiver, such as those who lack qualifying relatives for an immigrant visa waiver or those subject to an inadmissibility for which no waiver is available (i.e. those making false claims to U.S. citizenship).
The advantage of the nonimmigrant visa waiver lies in the wide range of eligible applicants. The waiver may provide a viable temporary solution to what is an otherwise lengthy separation from family, friends, studies or business matters in the U.S. However, the applicant must qualify for the underlying nonimmigrant visa and prevail under the Matter of Hranka criteria. A law office with significant experience in Embassy and Consular matters should be engaged to ensure the strongest possible nonimmigrant waiver.