Section § 212(d)(3) of the Immigration and Nationality Act (“INA”) allows the U.S. Attorney General to waive most grounds of inadmissibility for non-immigrants seeking to enter the U.S. on a temporary basis. Examples include people seeking a B-1 or B-2 visitor visa, an F-1 student visa, or an H-1B worker visa.
This waiver is not available to a foreign national seeking to obtain lawful permanent residence (green card) or to naturalize as a U.S. citizen.
However, for people wanting to enter the U.S. temporarily, INA 212(d)(3) can be used to waive almost any grounds of inadmissibility – including health grounds or conviction of an aggravated felony, drug crime, fraud, or crime involving moral turpitude (“CIMT”).
The only grounds of inadmissibility that cannot be waived with a 212(d)(3) waiver are those relating to espionage, sabotage, genocide, or involvement in Nazi persecution.1
To help you better understand 212(d)(3) waivers, our California immigration lawyers discuss, below:
- 1. What grounds of inadmissibility can be waived under INA 212(d)(3)?
- 2. How does the U.S. decide whether to grant a 212(d)(3) waiver?
- 3. How long is a 212(d)(3) waiver good for?
- 4. Will a waiver interrupt the absence requirement before I can apply for an immigrant visa?
- 5. Procedure for obtaining a 212(d)(3) waiver
- 5.1. Filing an application at a U.S. Consulate
- 5.2. Application at a U.S. port of entry
- 5.3 What if I have a criminal conviction?
- 5.4. Getting a waiver of health-related inadmissibility
- 5.5. Inadmissible due to unlawful presence
- 6. How long does it take to get a waiver?
1. What grounds of inadmissibility can be waived under INA 212(d)(3)?
A 212(d)(3) waiver can overcome almost every ground of inadmissibility listed in INA 212(a), including:
- Criminal offenses,
- Fraud, and
- Unlawful presence in the U.S.
Even people with prior removal orders or who are barred from admission because they were caught entering or attempting to enter the U.S. unlawfully may be able to get a 212(d)(3) waiver for temporary admission. And unlike an immigrant visa (for permanent residence), a 212(d)(3) may be sought at any time.
2. How does the U.S. decide whether to grant a 212(d)(3) waiver?
212(d)(3) waivers are discretionary. This means that the U.S. Attorney General’s office can choose whether or not to grant one.
The Board of Immigration Appeals has established three general criteria the AG is to use in deciding whether to grant a non-immigrant waiver:
- The risk of harm to society if the applicant is admitted;
- The seriousness of the applicant’s prior immigration law, or criminal law, violations, if any; and
- The alien’s reasons for wishing to enter the U.S.2
However, the alien’s reasons for wanting to enter the U.S. do not need to be “compelling.” For instance, 212(d)(3) waiver applicants do not need to show family ties to U.S. citizens or permanent residents or prove that family will suffer extreme hardship if the alien is not admitted.
Federal regulations provide that consular officers may recommend waivers for any legitimate purpose – including (without limitation) family visits, medical treatment (whether or not available abroad), business conferences, or tourism.3
Keep in mind that the more serious or recent a criminal conviction or immigration violation, the more difficult it will be to obtain a waiver.
3. How long is a 212(d)(3) waiver good for?
INA § 212(d)(3) non-immigrant waivers are good for a maximum of 5 years, but may be issued for less.
Remember, however – it is the authorized period of stay as a nonimmigrant and not the period in which the waiver is valid that determines how long a non-immigrant alien may legally remain in the U.S.
4. Will a waiver interrupt the absence requirement before I can apply for an immigrant visa?
People who are deported from the U.S. may not be able to apply for an immigrant visa until they have been absent from the country for 5, 10 or 20-years.
A temporary stay in the U.S. under section 212(d)(3) does not interrupt this absence requirement.4 Theoretically, an immigrant could be in the U.S. on a non-immigrant visa for the entire period of absence and still satisfy it.
However, people who were previously removed (deported) from the U.S. and are subject to the requirement will need to request an I-212 waiver in addition to their 212(d)(3) waiver request in order to receive a non-immigrant visa.5
For more information, please see our article on filing a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal.
5. Procedure for obtaining a 212(d)(3) waiver
A petition for a § 212(d)(3) non-immigrant waiver can be filed at:
- The U.S. consulate in the country where the alien resides, or
- A U.S. port of entry or CBP preclearance office (for visa-exempt aliens and citizens of Visa Waiver Program countries).
5.1. Filing an application at a U.S. Consulate
Most applicants who need a nonimmigrant visa will file their waiver request with a U.S. consulate.
There is no fee to file the application at a consulate. There may, however, be a cost for biometrics such as fingerprints, if required.
The process starts when an immigrant files a visa application with the consulate. The consular officer then reviews the visa application and makes an initial finding of inadmissibility.
Depending on the consulate, it may be possible to file a 212(d)(3) waiver at the same time as the visa application. But some consulates require it later. Aliens are advised to check with the U.S. consulate in their country to find out what is required when.
If the consular officer believes the waiver should be granted, he or she will forward the case to the CBP’s Admissibility Review Office (ARO) in Herndon, Virginia with a favorable recommendation. The ARO will make the final decision on the waiver.
If the ARO grants the waiver, the U.S. Consulate will then decide whether to actually issue the nonimmigrant visa. Keep in mind that even when the 212(d)(3) waiver is granted, the U.S. Consulate may deny the visa for other reasons if an immigrant does not qualify.
5.2. Application at a U.S. port of entry
Some applicants can file a 212(d)(3) waiver request with U.S. Customs and Border Protection at a border crossing, airport or other U.S. port of entry or a CBP pre-clearance office. These include applications who are:
- Visa-exempt (including most Canadian citizens), or
- Citizens of a Visa Waiver Program who have authorization under ESTA or appropriate travel documents.
These applications require a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.
The fee to file a Form I-192 with CBP is $585. It does not include the cost of biometrics or obtaining a copy of a criminal record, if required.
The Form I-192 and accompanying documents (as set forth below) should be filed in person with the CBP, well in advance of travel.
5.2.1. What documents do I need to submit at a port of entry?
People submitting a 212(d)(3) waiver application at a U.S. port of entry will need to include:
- Completed Form I-192 with an original signature;
- Evidence of citizenship;
- Fingerprints on a standard FD-258 U.S. Fingerprint card;
- Completed Form G-325A (Biographic Information) with an original signature; and
- If applicable, an official copy of the record of a criminal conviction in another country (as discussed below).
5.3 What if I have a criminal conviction?
An alien who is inadmissible to the U.S. because of a criminal conviction should submit a statement explaining the circumstances of each arrest, conviction, and resulting sentence or fine.
If the conviction occurred in a country other than the U.S., the alien must submit a copy of the official court record. The record should include the plea and disposition for each conviction.
If for some reason such a record is not available, the alien must obtain an official letter from the court stating why a copy is not available.
5.3.1. Criminal record check for Canadians
Canadians must submit a criminal record check from the Royal Canadian Mounted Police (RCMP). They can obtain this by submitting fingerprints to the RCMP on Form C216C. For more information on how to do this, please see the RCMP Criminal Records page.
5.3.2. Evidence of rehabilitation
People with criminal records or immigration violations in their past should also submit evidence of rehabilitation such as:
- Counseling programs completed,
- Current employment,
- Marital status,
- Community service,
- Letters of recommendation, or
- Any other evidence they think might be helpful.
5.4. Getting a waiver of health-related inadmissibility
An alien who is inadmissible on health grounds – including because of drug abuse or addiction — will need to provide evidence of rehabilitation.
Acceptable evidence may include (but is not limited to):
- A recent drug test;
- Completion of a drug counseling program;
- A statement showing a commitment to refrain from using controlled substances in the United States;
- Verifiable evidence of enrollment in a course of continuing counseling in the U.S.; or
- Anything else that outlines how the alien will deal with the health issue if allowed to enter the United States.
5.5. Inadmissible due to unlawful presence
An alien who seeks a waiver of inadmissibility for unlawful presence6 will need to provide the following information with his/her application:
- Current foreign employment;
- Previous U.S. employment;
- Family members presently living in the United States;
- Past and current United States and/or foreign business investments; and
- A disclosure of all ties to the alien’s current country of origin and/or residence.
6. How long does it take to get a waiver?
212(d)(3) waiver requests filed with a U.S. Consulate take at least 30 days to process. But 90-180 days is more common.
People who file at a U.S. port of entry can expect a minimum processing time of 90 to 120 days, and possibly as much as 180 days before the ARO issues a final determination.
These are estimates only. Depending on the complexity of your situation and the ARO’s workload, your waiver could take more or less time.
Inadmissible to the U.S.? Call us for help…
If you or someone you know faces deportation or inadmissibility due to a conviction in the U.S. or another country, we invite you to contact us for a free consultation.
Our criminal and immigration attorneys can help you challenge your conviction or get the appropriate waiver.
Call us or complete the form on this page to schedule your free consultation.
Don’t assume that you will never be allowed into the U.S. because of a mistake in your past. Our lawyers can help you explore the exceptions.
- See INA 212(a)(3).
- Matter of Hranka, 16 I&N Dec. 491(BIA 1978).
- 22 CFR 40.301; 9 Foreign Affairs Manual 40.301
- 8 CFR 212.2.
- See INA 212(a)(9)(A)(i) and (ii).
- See INA 212(a)(9)(B).