The Generous Non-Immigrant Waiver

By Attorneys Robert L. Reeves, Nancy E. Miller & Ben Loveman

Many people erroneously believe that because they are ineligible to enter the United States as an immigrant there is no way for them to enter the United States to work or be with their families.  Fortunately, this is not the case as there is a waiver available for persons seeking to enter the U.S. in non-immigrant categories which will allow entry even where the person would not be allowed to enter as an immigrant.  This waiver, described in Section 212(d)(3) of the Immigration and Nationality Act (INA), is extremely generous in that it waives certain grounds of inadmissibility which are not waivable in the immigrant visa context. 

In fact, the waiver applies to almost every potential ground of inadmissibility including prior crimes, unlawful presence, false claims to U.S. citizenship, misrepresentations, prior orders of deportation, and health related grounds. Thus, a person who would be ineligible to enter as an immigrant may still obtain a Section 212(d)(3) waiver to enter the U.S. to work, invest, or visit their family.   Further, while most waivers in the immigrant visa context require the applicant to have a U.S. citizen or lawful permanent resident relative, there is no such requirement in the context of a Section 212(d)(3) non-immigrant waiver. 

The Department of Homeland Security (DHS) is the principal agency which will make a decision on whether to approve a non-immigrant waver.  The decision to approve or deny a waiver is entirely discretionary but DHS will consider a prescribed set of criteria to reach a decision on a particular case.  DHS will look at and weigh three primary factors in reaching a decision on a case.  The factors applied were set forth in a precedential decision by the Board of Immigration Appeals in a case known as “Matter of Hranka” Specifically, the three factors described in Matter 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.

DHS will thoroughly consider all three factors in reaching a decision.  Essentially DHS will engage in a balancing test to see whether the totality of the circumstances weighs in favor of granting a waiver.  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 and the length of time that has passed since the commission of the crime may play a positive discretionary role.  Of course, where someone can show that they have been rehabilitated they can argue that they pose less of a risk to society and thus factor #1 weighs in their favor. 

A Section 212(d)(3) waiver should be considered by persons who wish to enter the U.S. as an H-1B (professional), L-1 (intra-company transferee), E-2 (investor), B-1/B-2 (visitor for business or pleasure).  This type of waiver is also available to performance artists, athletes, and persons of extraordinary ability (O and P visas).  The availability of such a waiver is the reason that many star performers and athletes, many of whom have well publicized criminal or drug problems, are able to enter the U.S. to practice their trade.   

The non-immigrant waiver is a generous provision of the law which can apply in almost any ones case regardless of criminal or immigration violations in the past.  DHS will want to be convinced that the person’s presence in the United States will be beneficial to the economy or people of the United States, will not pose a threat to the safety of residents or to national security. The 212(d)(3) waiver is not a permanent waiver and must be sought each time a person seeks enter the United States as a nonimmigrant.

 The waiver can provide a viable solution to an otherwise lengthy separation from family, friends, and employment or investment opportunities.  However, the applicant must qualify for the underlying nonimmigrant visa and establish that they merit a waiver based on the criteria discussed in this article.  If you or a loved one may be eligible for a non-immigrant waiver it is important to speak with an experienced and reputable immigration attorney regarding the application process to ensure that the best possible waiver application will be submitted.