Yes, it’s a nonimmigrant visa waiver filed pursuant to Immigration and Nationality Act (INA) §212(d)(3). The waiver has several benefits. First, since it is a nonimmigrant visa waiver, you have to prove less than if you were filing an immigrant visa waiver. An immigrant visa waiver requires a U.S. citizen or lawful permanent resident “qualifying relative” who must suffer “extreme hardship” in the foreign national’s absence. A nonimmigrant visa waiver must address three (3) factors: 1) the risk of harm in admitting the applicant; 2) the seriousness of the acts that caused the inadmissibility; and 3) the importance of the foreign nationals’ reason for seeking entry.
Second, since the waiver must be filed with an application for a nonimmigrant visa, if the waiver and the visa are approved, the foreign national can serve out the 3 years or the 10 years while in the U.S. At that point, if the foreign national is eligible to adjust status, he or she can apply to adjust status in the U.S.
If a foreign national overstays by more than 6 months or 1 year, and departs the U.S., he or she has triggered INA §212(a)(9)(B).
INA §212(a)(9)(B) reads: Any alien (other than an alien lawfully admitted for permanent residence) who-
(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien’s departure or removal, or
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.
So as long as the foreign national does not depart the U.S., the bars to inadmissibility are not triggered (although the person has still accrued unlawful presence).
There are exceptions to this rule. Those who have overstayed by 6 months or more and depart the U.S. who are not subject to the bar include minors, asylees, family unity protection pursuant to section 301 of the Immigration Act of 1990, battered women and children, and trafficking victims.
The Immigration and Nationality Act §212(d)(3) allows for a waiver that may eliminate the bar to admission. The waiver is very broad and covers those who are inadmissible due to health grounds, criminal convictions, drug offenses, prostitution, public charge grounds, misrepresentations, smuggling, draft evasion prior unlawful presence and many others under INA §212. Even terrorist, potential terrorist and those intending to violate or evade law that prohibits expert of goods, technology or sensitive information form the U.S. are eligible to apply for the waiver.
Those who are ineligible for this waiver include foreign nationals who intend to engage in espionage or sabotage, to attempt to overthrow the U.S. government, or to engage any other unlawful activity. Others who are also ineligible include those who those involved in Nazi persecution, genocide, have potentially serious adverse foreign policy consequences for the U.S.
Waiver applications are never easy. They require substantial documentation in support of the application. Each letter of support should be carefully crafted depending on the specific type of inadmissibility ground(s). Each supporting documentation should serve a very specific purpose to prove the foreign national’s eligibility. In addition to preparing the waiver application, the nonimmigrant visa application must also be prepared to prove the foreign national is eligible for the specific visa (e.g. B-2, TN, E-3, etc.) and does not have immigrant intent.
The §212(d)(3) waiver is one form of relief that should be seriously considered for someone who accrued unlawful presence and left the U.S. (either voluntarily or involuntarily). If you believe you or someone you know is eligible for a §212(d)(3) visa waiver, please contact our law firm.
