By Attorneys Devin M. Connolly & Nancy E. Miller

Visiting the United States is more complicated than just making airline and hotel reservations.  In order to enter the United States, the non-citizen must not have any grounds of inadmissibility.  The Immigration & Nationality Act (INA) has a long list of reasons why someone might be refused admission.  Inadmissibility may stem from criminal convictions, or a deportation order, or having incurred a bar due to unlawful presence, or something else.  Fortunately, it is possible to enter the United States as a visitor or with other non-immigrant visas if the alien has a waiver of inadmissibility.

This little-known waiver is stated in Section 212(d)(3) of the INA.  Section 212(d)(3) of the INA is a generous provision which helps those seeking to enter the U.S. for a temporary purpose, despite any one of a number of inadmissibility grounds.  As mentioned above, these grounds can include prior crimes, immigration misrepresentations, deportation orders, or health-related grounds, among others. The waiver provision applies to virtually all grounds of inadmissibility, except certain security related grounds.

The nonimmigrant visa waiver provided for in Section 212(d)(3) of the INA is only available to those who are applying for a temporary visa, such as a student, visitor, business or temporary worker visa. Intra-company transferees and investors hailing from treaty countries are also included, as are individuals of extraordinary ability and performance artists.  In contrast to those wishing to enter the U.S. temporarily, those permanently immigrating to the U.S. based on petitions from family members and fiancé(e)s are not eligible for the Section 212(d)(3) waiver.

The decision whether or not to grant a nonimmigrant waiver of inadmissibility is within the discretion of the Department of Homeland Security (DHS). The factors the DHS will consider in determining whether to favorably exercise discretion and grant the requested waiver are (1) the seriousness of the applicant’s criminal or immigration law violation; (2) the risk of harm to society if the applicant is admitted into the US; and (3) the applicant’s reason for seeking entry to the U.S.

A thorough balancing of the above elements is undertaken by the adjudicating immigration officer when determining whether the applicant should be permitted to temporarily enter the U.S.  The adjudicating officer begins each inquiry with the suspicion that the alien is actually an intending immigrant who is seeking the non-immigrant waiver in order to avoid the immigrant bars.  Because there is no interview for this waiver, the application, supporting evidence and declarations must be sufficiently strong and persuasive to convince the officer that the applicant is eligible and deserving of the waiver.

Once the officer is satisfied that the alien is not attempting to short-circuit the requirements for immigrants, he will turn his attention to the two other most common reasons for inadmissibility:  prior criminal history and prior immigration violations.  He will be concerned with whether the alien is a threat to society and whether the officer wishes to favorably exercise discretion.

The number and type of criminal and immigration violations are extremely relevant, as is all evidence of rehabilitation.  How much time has passed since the most recent violation is also important.  Obviously, the more serious the conviction, the greater level of rehabilitation must be shown.  One who has a long and varied history of having committed crimes must show that he or she has changed and is no longer a threat to society.  One who has lied to obtain immigration benefits has to convince the officer that he is not misrepresenting now.  That is not an easy requirement to meet but it is possible with the right evidence.  Here again, a showing of rehabilitation is essential.

A Section 212(d)(3) waiver is available for violations for which no immigrant visa waiver is possible.  One who has made a false claim to United States citizenship or who has a lifetime bar in connection with unlawful presence may be eligible for the waiver if they are seeking to enter the United States as a nonimmigrant and can persuade the office of that fact.  This means that one who may never be allowed to enter the United States as an immigrant may be able to come to visit family or to go to school or conduct business.

An alien with a prior criminal or immigration history who wishes to enter the United States should always consult with an experienced and knowledgeable immigration lawyer to determine whether they have any bars to admission and whether there are waivers available for those bars.  Waivers are not easily obtained.  Therefore, the alien should seek the assistance of a lawyer with a proven track record in obtaining them.

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