The Nonimmigrant Visa Waiver is the least talked about type of waiver, but it is extremely valuable for a few reasons. The Immigration and Nationality Act (INA) §212(d)(3)(A) allows foreign nationals who are outside of the United States to file a waiver of inadmissibility at a consular office.
The §212(d)(3) bar, like others, is discretionary. That means that you have to make a highly compelling case, supported by a bulk of documentation. The government will examine: 1) the risks of harm in admitting the foreign national; 2) the seriousness of the acts that caused the inadmissibility; and 3) the importance of the foreign national’s reason for seeking entry.
What is So Great About the Nonimmigrant Visa Waiver?
There is one major benefit of this waiver that does not apply to ANY other waiver. Let’s first look at an example:
A foreign national, Adam, entered the U.S. lawfully on a B-2 (tourist) visa. Two years later, Adam is pulled over because his taillight is out. When asked for his ID, he does not have a Driver’s License. ICE puts him into removal proceedings and he is ordered removed by an Immigration Judge. Adam departs the U.S. Since Adam accrued more than one (1) year of unlawful presence, then left the U.S., he is subject to a 10-year bar of inadmissibility. During this time, he cannot re-enter the U.S. until 10 years have passed.
After being outside of the U.S. for only one (1) year, Adam decides he wants to return to the U.S. to continue his education. He gets admitted into University of Maryland. He applies for an I-20 and files for an F-1 visa. He also requests a 212(d)(3) waiver. Both applications are approved. Adam can now re-enter the U.S. after being outside of the U.S. for only one year.
Let’s say that Adam entered the U.S. illegally twice, in 2009 and 2011. The first time, he overstayed for 6 months and the second time, he overstayed by one year. Adam then marries Susan, a U.S. citizen who wants to file a green card for him. Two illegal entries makes Adam subject to a permanent bar- he is permanently ineligible to file Form I-485 to adjust status or DS-260 to consular process. Feeling hopeless, Adam returns home to his native country. Adam is subject to two different bars, one for overstaying by more than 12 months and another for having two illegal entries. Adam is now required to remain outside of the U.S. for at least 10 years before he can be eligible to apply for a marriage-based green card.
However, under a §212(d)(3) waiver, Adam can re-enter the U.S. as a “nonimmigrant.” Since his visit is temporary, under the law, he can enter on H-1B, or any other nonimmigrant visa and remain in the U.S. while he serves out his 10-year bar. After living in the U.S. for 10 years, he will be eligible to apply for a marriage-based green card.
So the value of the §212(d)(3) waiver is that it allows a foreign national subject to a bar to serve out the time in the U.S. while in nonimmigrant status (as opposed to having the foreign national wait outside of the U.S.)
What Are Other Benefits of the §212(d)(3) Waiver?
Since the foreign national will be applying for a nonimmigrant visa (as opposed to an immigrant visa), there is a lower legal threshold. Many other waivers require proving “extreme hardship.” Also, the waiver case is built around the foreign national, not a “qualifying relative.”
What Makes the §212(d)(3) Waiver Difficult?
As mentioned above, it is a discretionary waiver and the consular officers have “unreviewable discretion.” Also, foreign nationals who apply for a nonimmigrant visa are required to prove that they do not possess “immigrant intent.” If the foreign national is believed to have the intention to immigrate, the waiver application will be denied. For this reason, it’s so very important to select an attorney who can connect on an emotional level with the consular officer, but who also can argue the law.
Who Is Eligible for a Nonimmigrant Visa Waiver?
So who qualifies for this type of visa? Any foreign national who is “inadmissible” based on health, criminal convictions, unlawful presence, and certain terrorism-related crimes is eligible for this waiver. However, anyone who is inadmissible based on security-related grounds (e.g. espionage, sabotage, genocide, and Nazi persecution) is not eligible to use this waiver.
Takeaway Message:
The §212(d)(3) waiver is invaluable to a person subject to a time bar because it allows that person to remain in the U.S. to serve out that time bar. It is especially valuable to someone subject to a §212 bar based on the 3-year, 6-year bars, criminal grounds of inadmissibility, immigration fraud and misrepresentation, or unlawful presence.
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