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INA 212(d)(3)(a) Waiver for Previous Overstay by Non-Immigrants


Unlawful presence in the United States can lead to a person being deemed inadmissible. Unlawful presence means being in the United States without being admitted or paroled or when you are not otherwise authorized to be physically present in the United States. A person deemed inadmissible is barred from entering the United States for any reason. The unlawful presence must be for longer than 180 days to trigger inadmissibility.

However, Section 212(d)(3)(a) of the Immigration and Nationality Act (“INA”) provides a method of obtaining waivers for nonimmigrants who want to visit or enter the United States. As noted below, there is a different process and procedure for immigrants seeking an overstay waiver. Here is a brief overview.

Where Do I file for a Section 212(d)(3)(a) Waiver?

Most section 212(d)(3)(a) waivers are sought at a U.S. Embassy or Consulate, but an application for a section 212(d)(3)(a) waiver can be filed at a port of entry.

What Reasons for Entry are Acceptable?

Generally, consular and embassy officials will consider any "legitimate" reason as grounds for a section 212(d)(3)(a) waiver. These include a vacation in the United States, family visit, medical treatment, business purpose (such as a conference or sales meeting), etc.

What are the Standards for Granting a Section 212(d)(3)(a) Waiver?

A nonimmigrant has no "right" to a 212(d)(3)(a) waiver. Granting a request for a waiver is discretionary. In deciding whether to grant a waiver, immigration officials generally consider three factors:

  • "Risk of harm" if the waiver is granted
  • Seriousness, history and number of the applicant’s overstay or overstays leading them to be inadmissible
  • Reason/purpose for seeking entry

What is the Process?

With most Embassies and Consulates, the process is two steps. The first step is seeking a non-immigrant visa which is denied because the immigration officials determine that the person seeking entry is barred because of one or more previous overstays. The second step is filing the application for the section 212(d)(3)(a) waiver. The initial application is reviewed by the Embassy or Consulate officials. If officials recommend the waiver, final approval of the waiver comes from Customs and Border Patrol.

How Long is the Waiver Valid?

If a section 212(d)(3)(a) waiver is granted, the waiver is generally valid up until that visas expiration. A nonimmigrant will receive permission to enter that will have a much more limited authorized period of stay that will be related to the reason for entry.

What About Immigrants Seeking a Section 212(d)(3)(a) Waiver?

Section 212(d)(3)(a) waivers are ONLY for nonimmigrant visas. But, waivers can be sought under other provisions of the immigration laws for immigrants who have overstayed their authorized period of stay. For immigrants, overstays can be cured by seeking a Form I-601 waiver.

Contact Yekrangi & Associates Today

For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.


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