212(d)(3) Waivers Of Inadmissibility For Non-Immigrants

Under the Immigration and Nationality Act §212(a)(6)(C)(i), "any alien who by fraud or willfully misrepresenting a material fact seeks to procure (or sought to procure or has procured) a visa, other documentation, or admission into the United States or some other benefit provided under [the INA]" is ineligible to receive that benefit. Therefore, if an individual is found to have committed fraud or willfully misrepresented information to the U.S. government, they can be barred from entering the country, even if they wanted to come in temporarily as a non-immigrant (i.e. H-1b worker visa, F-1 student visa, or B-1/B-2 visitor visas).

Fortunately, there are options specifically for non-immigrants to get a waiver of inadmissibility even after a finding of fraud or willful misrepresentation. Under INA 212(d)(3), the Secretary of State and consular officers are granted the discretion to recommend waivers for nonimmigrant visa ineligibilities to the Department of Homeland Security.

Who is eligible for a 212(d)(3) waiver?

Before a waiver can be granted, the applicant must meet the following criteria:

1. The applicant is not inadmissible under INA 214(b). i.e. the applicant is not an officer or employee of a foreign government or international organization, nor is he/she an employee or immediate family member of such an individual.
2. The applicant is not inadmissible due to espionage, sabotage, an unlawful activity, any activity with the purpose of opposing or overthrowing the U.S. government, participation in nazi persecutions, or participation in genocide generally.
3. The applicant is not seeking a waiver of nonimmigrant documentary requirements of INA 212(a)(7)(B), which may only be waived under the provisions of INA 212(d)(4). i.e. the applicant is a nonimmigrant without valid identification or whose passport will expire within 6 months of when they intend to leave the country.
4. The applicant is, otherwise, qualified for the nonimmigrant visa (NIV) he or she is seeking.

Additional factors that a consulate officer can consider in deciding whether to grant a waiver are:

1. How recent and serious the willful misrepresentation/fraud was;
2. The reasons for the proposed travel to the United States; and
3. The potential effect on U.S. interests, whether positive or negative.
4. Whether there is a single, isolated incident or a pattern of misconduct; and
5. Any evidence that the applicant has since reformed from the activity that made them inadmissible

Factors that a consulate officer should NOT consider are:

1. Whether the applicant has a qualifying family relationship;
2. Whether some minimum amount of time has passed;
3. Any other special statutory threshold requirements.

How can an individual obtain 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).

Applying at a U.S. Consulate

When applying for entry to the U.S. through a consulate office, an individual merely has to apply for the waiver after the consular officer finds them inadmissible. This may be either at the same time as the visa application or at a later time, depending on the specific procedures of the consulate office.

There is no fee to file the application through a consulate, although there may costs associated with any biometrics they may take as part of the application for the waiver.

If the consular officer recommends the individual for a waiver, the application is forwarded to Custom and Border Patrol’s Admissibility Review Office, which will then make the final decision on whether to grant the waiver. Note that even if the waiver is granted, the visa may be denied for a different reason.

Applying at a U.S. port of entry or CBP pre-clearance office

Certain individuals may be able to apply at a U.S. port of entry (a border crossing, an airport, or the CBP pre-clearance office). These include individuals who are:

1. Visa-exempt (most Canadians), or
2. Citizens of a Visa Waiver Program who are authorized under Electronic System for Travel Authorization (ESTA)

If applying through a port of entry, the individual must file a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant. This application includes a $930 filing fee and may include a fee for biometrics on top of that cost.

If seeking a 212(d)(3) waiver through a port of entry, the individual should have the following prepared:

1. An original copy of completed Form I-192;
2. Evidence of citizenship of home country;
3. Fingerprints on a standard FD-258 U.S. Fingerprint card;
4. An original copy of completed Form G-325A (Biographic Information)

212(d)(3) waiver requests usually take within 90 and 180 days to be fully processed.

How we can help

212(d)(3) waivers are discretionary, which means that consular officers and CBP will weigh positive and negative factors in an applicant’s particular case when deciding whether or not to rule in their favor. Qualified immigration law practitioners such as Ashkan Yekrangi and his team can ensure that you or your loved one present the strongest case to adjudicators, and therefore, have your best chance at obtaining a 212(d)(3) waiver.

Obtaining a waiver for fraud or willful misrepresentation is a challenging process but having respectable legal professionals by your side can make all the difference. Contact an immigration attorney at Yekrangi & Associates today.