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Thread: The INA 212(d)(3) Nonimmigrant Waiver Available To All?

  1. #1
    Guest
    The INA 212(d)(3) Nonimmigrant Waiver Available To All?
    by Christina B. LaBrie, Esq.
    Section 212(d)(3) of the Immigration and Nationality Act ("the Act") is a broad waiver provision that allows applicants for admission as nonimmigrants to overcome almost any ground of inadmissibility found in Section 212(a) of the Act. The only inadmissibility grounds that can not be overcome by the 212(d)(3) waiver relate to foreign policy considerations and participation in Nazi persecutions.

    The Section 212(d)(3) waiver is thus available to the vast majority of inadmissible individuals. The 212(d)(3) waiver must be anchored to a nonimmigrant visa, such as a tourist, student, H-1B or L visa. For example, an individual who has been deported from the United States because of a criminal conviction but has since returned to his or her home country and now has an offer of professional employment from a US company can petition for an H1B visa.

    Of course, it is within the discretion of the Attorney General to grant or deny the waiver. However, this waiver is important because it includes few statutory grounds of ineligibility. It could be used to obtain admission on a nonimmigrant visa for an applicant who had previously been deported from the United States or who had been found to have committed fraud, for example.

    The Board of Immigration Appeals has set forth criteria to be evaluated by the Attorney General in making a discretionary determination under Section 212(d)(3). In Matter of Hranka, 16 I&N Dec. 491(BIA 1978), the BIA listed three criteria for determining whether to approve or deny a Section 212(d)(3) waiver:



    1. The risk of harm to society if the applicant is admitted;

    2. The seriousness of the applicant's prior immigration law, or criminal law, violations, if any; and

    3. The reasons for wishing to enter the US.




    The BIA did not elaborate on these basic factors in its decision. However, it did make clear that the reasons for wishing to enter the US need not be "compelling." This sentiment is reflected in the Foreign Affairs Manual at 9 FAM Section 40.301:



    "The law does not require that such waiver action be limited to exceptional, humanitarian or national interest cases. Thus, while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether available abroad), business conferences, tourism, etc."




    In Hranka, the BIA did not include rehabilitation as a criterion, but clearly based its decision in part on the rehabilitation of the applicant. Therefore, for applicants with criminal records, evidence of rehabilitation would certainly improve a 212(d)(3) waiver application.

    The procedure for filing a 212(d)(3) waiver application is set out in 8 C.F.R. 212.4. The regulations provide two different procedures: for filing under Section 212(d)(3)(A)(for those nationalities requiring a visa) and under Section 212(d)(3)(B)(for certain visa exempt applicants).

    The 212(d)(3) waiver is available to inadmissible individuals that do not have an immigrant waiver available. For example, an alien who has been convicted of a crime involving moral turpitude within the last 15 years and who has no qualifying US citizen relative for a 212(h) waiver might still be able to enter the United States on a nonimmigrant visa with a 212(d)(3) waiver. Alternatively, if an alien has a qualifying relative but is not able to show sufficient hardship for a 212(h) waiver, he or she could maintain status as a nonimmigrant and wait for the 15 years to pass so that the 212(h) immigrant waiver would be available again.

    Unlike most provisions of the Act, the 212(d)(3) waiver contains no bar for those convicted of aggravated felonies. Clearly, an individual convicted of an aggravated felony would have a difficult burden in satisfying the Hranka criteria. But for many people with no other options, it is certainly worth a try.

    For individuals who have been deported from the US, an I-212 application for permission to reapply for admission to the US is required within five years of deportation (or 20 years in the case of an aggravated felon). The regulations governing I-212 applications are found at 8 C.F.R. 212.2. An individual who has been deported and who is subject to a ground of inadmissibility would need to apply for permission to reapply (the I-212) and for a 212(d)(3) waiver.

    It should be noted that 8 C.F.R. 212.2 specifically states the following: "A temporary stay in the United States under section 212(d)(3) of the Act does not interrupt the five or twenty consecutive year absence requirement." As a result, one could conceivably spend the entire absence requirement in the United States in nonimmigrant status.

    The benefit of the 212(d)(3) waiver lies in the broad range of eligible applicants. However, these waivers are not always easy to obtain, particularly in the case of individuals with criminal convictions. In addition, the applicant must be eligible for a nonimmigrant visa. For inadmissible individuals with no other way to return to the United States, the 212(d)(3) waiver might provide a temporary solution to what can be a very difficult and lengthy time separated from family, friends or business matters.

  2. #2
    Guest
    The INA 212(d)(3) Nonimmigrant Waiver Available To All?
    by Christina B. LaBrie, Esq.
    Section 212(d)(3) of the Immigration and Nationality Act ("the Act") is a broad waiver provision that allows applicants for admission as nonimmigrants to overcome almost any ground of inadmissibility found in Section 212(a) of the Act. The only inadmissibility grounds that can not be overcome by the 212(d)(3) waiver relate to foreign policy considerations and participation in Nazi persecutions.

    The Section 212(d)(3) waiver is thus available to the vast majority of inadmissible individuals. The 212(d)(3) waiver must be anchored to a nonimmigrant visa, such as a tourist, student, H-1B or L visa. For example, an individual who has been deported from the United States because of a criminal conviction but has since returned to his or her home country and now has an offer of professional employment from a US company can petition for an H1B visa.

    Of course, it is within the discretion of the Attorney General to grant or deny the waiver. However, this waiver is important because it includes few statutory grounds of ineligibility. It could be used to obtain admission on a nonimmigrant visa for an applicant who had previously been deported from the United States or who had been found to have committed fraud, for example.

    The Board of Immigration Appeals has set forth criteria to be evaluated by the Attorney General in making a discretionary determination under Section 212(d)(3). In Matter of Hranka, 16 I&N Dec. 491(BIA 1978), the BIA listed three criteria for determining whether to approve or deny a Section 212(d)(3) waiver:



    1. The risk of harm to society if the applicant is admitted;

    2. The seriousness of the applicant's prior immigration law, or criminal law, violations, if any; and

    3. The reasons for wishing to enter the US.




    The BIA did not elaborate on these basic factors in its decision. However, it did make clear that the reasons for wishing to enter the US need not be "compelling." This sentiment is reflected in the Foreign Affairs Manual at 9 FAM Section 40.301:



    "The law does not require that such waiver action be limited to exceptional, humanitarian or national interest cases. Thus, while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether available abroad), business conferences, tourism, etc."




    In Hranka, the BIA did not include rehabilitation as a criterion, but clearly based its decision in part on the rehabilitation of the applicant. Therefore, for applicants with criminal records, evidence of rehabilitation would certainly improve a 212(d)(3) waiver application.

    The procedure for filing a 212(d)(3) waiver application is set out in 8 C.F.R. 212.4. The regulations provide two different procedures: for filing under Section 212(d)(3)(A)(for those nationalities requiring a visa) and under Section 212(d)(3)(B)(for certain visa exempt applicants).

    The 212(d)(3) waiver is available to inadmissible individuals that do not have an immigrant waiver available. For example, an alien who has been convicted of a crime involving moral turpitude within the last 15 years and who has no qualifying US citizen relative for a 212(h) waiver might still be able to enter the United States on a nonimmigrant visa with a 212(d)(3) waiver. Alternatively, if an alien has a qualifying relative but is not able to show sufficient hardship for a 212(h) waiver, he or she could maintain status as a nonimmigrant and wait for the 15 years to pass so that the 212(h) immigrant waiver would be available again.

    Unlike most provisions of the Act, the 212(d)(3) waiver contains no bar for those convicted of aggravated felonies. Clearly, an individual convicted of an aggravated felony would have a difficult burden in satisfying the Hranka criteria. But for many people with no other options, it is certainly worth a try.

    For individuals who have been deported from the US, an I-212 application for permission to reapply for admission to the US is required within five years of deportation (or 20 years in the case of an aggravated felon). The regulations governing I-212 applications are found at 8 C.F.R. 212.2. An individual who has been deported and who is subject to a ground of inadmissibility would need to apply for permission to reapply (the I-212) and for a 212(d)(3) waiver.

    It should be noted that 8 C.F.R. 212.2 specifically states the following: "A temporary stay in the United States under section 212(d)(3) of the Act does not interrupt the five or twenty consecutive year absence requirement." As a result, one could conceivably spend the entire absence requirement in the United States in nonimmigrant status.

    The benefit of the 212(d)(3) waiver lies in the broad range of eligible applicants. However, these waivers are not always easy to obtain, particularly in the case of individuals with criminal convictions. In addition, the applicant must be eligible for a nonimmigrant visa. For inadmissible individuals with no other way to return to the United States, the 212(d)(3) waiver might provide a temporary solution to what can be a very difficult and lengthy time separated from family, friends or business matters.

  3. #3
    I knew it.. you will come back with this question and I have answer for you.
    Read my posting again.
    I have asked you or anyone who claims that waivers for H1B is filed and approved.
    Also read the Part if the author of this posting, where its says its totally discretionary.
    Frankly speaking this part of the INA is in Gray area. I know that 212.d. 3 for non immigrant visa and H1B also a non immigrant visa which put H1B catogary into eligiblity of waiver theoretically, but if you go in practical way H1B is never approved with waiver till. No record exsists.

    I never said I know more then any one else, of course some people (many people knows or most of them knows more then me). I never claim expert in the field.
    IF you know more you should come forward and help people, put some time here. as sammy left I will leave too, people will still get helped by you or someone else. But don't screw up people with fake hopes.
    Its a discussion, not a legal advise..

  4. #4
    Yes you are right, that was said to me by one Attorney.
    I think he must be waiting for denial of his clients case then he might be planing to file a suit against the BCIS. I am not sure, it sound's. He want to make some good money

  5. #5
    I disagree with you on that. I said read my post again, I ask you to show me one approval for H1B.
    Do U think I don't know how the INS/BCIS works? I actually search deeply when I said not in H1B cases. This attorney ( first of all she gained her expertise in Asylum cases not H1B cases.)
    second, the main motto to write this article is to attract clients not educate you, remember that. third its a Lawyers talk, not the fact from actual law.

    FYI non immigrant Visa issuance is itself a discretionary.
    Let me tell you, IF the alien is young in age ( 23 - 30), he want to get visit visa, Consulate will always search for a point to deny the visa, He/she has to proove that he will come back and even he proves that many people will be denied in the past with the clause that you will not return back. No one can do anything about it. once denied, consulate will stamp at the passport that alien applied for visa. consulate also enter in the system that visa applied and denied. it stays in the system for 18 months. the stamp on the passport will raise if alien apply for visa to another country like canada or australia or others.
    Lets say someone visited USA, he overstay for three months, He will not have bar but he will not get visit visa again, unless USA have its interest within the alien.
    Immigration Waiver( we are talking) only works in one way.Its a kinda loop hole so IF Attorney general; wants he can give visa to any one. H1B fact are way different.
    Same loop hole used in several occasions.
    IF The US has interest in you you can even get citizenship in next day. Immigration Law is not in black and white( recent example of Soliders are the proof)
    Don't read what she wrote ( its just advertisement to Attrect client), If you read my posting before I said people can file anything but show me the proof of approval.
    Do u think if H1B overstays by more then one year and he can come back by this waiver? I don't think so. Do u think if H1B overstays by month or so and less then three months and he can come back by this waiver? May be.
    There are lots of people might have went thru this route and also in appeal process to this route but if anyone is denied will also comes as published dec. Or granted will also become a publish Dec. Not In H1B case.
    Why can't you support your statment to prove , You said you filed many of them, You can show one ( atleast) approved. Or you can support you statement with the actual Immigration Law from the Immigration Law guidelines where it said that Waiver is allowed in H1B cases. Again H1B Case, I don't want to know from any attorneys **** (Sometime that know some times they just guess) Also I don't want toask any one OR will not satisfy with the ovarall statement that Waiver is allowed In Non Immigrant Visas.
    Point out to me the Immigration Law Data base section, As I did pointed to you for actual debate Of H1B In the Past In H.R. sections.

    I search the DACS sys, All the Law books. Only I can fine about this waivers availablity to Nonimmigrant visas But no where its mention H1B. thats why I said In Theory its true but not in practical world.
    Its a discussion, not a legal advise..

  6. #6
    Guest
    No doubt in mind INA 212(d)(3) will be a hard waiver. Even Immigrant waiver (I-601) is granted based on extream hardships to USC spouse or parents.

    But if you are applying a non-immigrant visa and you need a waiver I think it is worth it to take this shot.

    Correct me if I wrong, I think for USC spouse who can not proof extream hardships should also try for non-immigrant visa with this particular waiver. Because this waiver gives much discretionary space for cousular than I-601. And, It is easy for counsular to justy INA 212(d)(3) criteria provided he has good heart for you.

  7. #7
    To someone12,
    First of all don't call me expert( i never said I,m an expert) I speak what I learned from my experience.
    I,m not someone like you to tell people, yeah I have remedy for you, give me $$$ and we can try to file tis route , and back of your mind you know that its not gonna work and never worked in the past.
    One point of time you are the one who claim that you filed many waivers under 212 d.3, but you cannot support your statement, and you gave runaround to call here call there.
    You are still ignored what i asked, <FIND ME THE **** LAW WHERE IT SAYS H1B WAS APPROVED BY THIS WAIVER, OR SUPPORT YOUR STATEMENT WITH BACKUP APPROVED CASE >

    To samie,
    USC spouse/dependent will not be qualify for this waiver, Law work one way only, IF alien is spouse /dependent to USC/LPR, it presumed that his intention will be immigration so he was not encouraged to apply for non immigrant visa, ( some exception apply)
    Differenc between 601 and this waiver,
    both the waiver are discretionary but I-601 whole part of the waiver is not discretionary, but this waiver ,whole part is discretionary.it means you can still be denied if you file an approval waiver, service can practice their discretion, and you will not be able to chellange it. no appeal will be granted.ITs same like voluntary departure decision. No court chellange the voluantry departure decision.
    Its a discussion, not a legal advise..

  8. #8
    with your statment
    "First, Mohan, I do have nor do charge anyone for what I do."" sounds like you are an attorney. well I ,m not I,m illegal.
    You should read these links which will educate you regarding the descretion how it was emplied.
    you also read more * U.S.C $ 1182 and their subs.
    I know experience is good teacher. I have learned , and I don't claim that I filed many waivers of H1b( just fake claim by you) but I claim I filed many waivers in extreme hardship of AOS/ Cencellation of removal/suspension of deportation And I know what I,m talking about. the things frustrates me the people like you who takes money to file these waivers and A big amount and still waiver failed. Some of the waiver I dealt with was denied more then three times.
    just yesterday I filed 3rd circuit appeal court in Phill PA regarding 601 waiver, and phyllis ruffin is case manager.

    Here is the link supporting my statement that" Not the whole hardship waiver is discretionary" But in your terms I posted garbage.
    http://www.ca9.uscourts.gov/ca9/newo...f?OpenDocument
    go read your own law again, and point out the section where it said waiver is allowed in H1B( Not non immigrant visas)
    Or you can back up your statement by posting Published or non published decision, I have access to both).

    You claim in the past you filed many H1B waiver, prove it.
    You said you have experience in immigration Law, I think you will be helping others on this board who need help, and I should leave and take care of other stuff.
    I know it gives a pain in your *** , if someone help others, it may hurt your bussiness.
    so Here, I will leave. But I request to origional poster to follow your advise and file H1B waiver and post the outcome here so everyone should know the result.
    Its a discussion, not a legal advise..

  9. #9
    Hi Mohan,
    I beg you not to leave!!! Many of us really need you. Please do not take the above discussion personal. You are great and you have proved to me that you a lot more knowledgable that my own attorney.
    Please think it over.

  10. #10
    you still ignore my questions.
    Show me the Law where its written?
    Back it up your statement by posting the link of the actual Law or any decision on H1B cases.
    AGAIN . I clearly ask for H1B case not Non immigration visa cases?
    Show your experience here, as I shown.
    IF you can't do that Just point out any openion within the case where it says that Waivers are filable in H1B cases... Educate me.
    The person who filed many H1B waiver in the Past ,claim to have loooong experience, cannot even show one approve waiver?.. wow.
    If you show me atleast ONE approved, I have the capacity to approve many base on that I can help more people in the H1B area, I just need one.
    I don't think you can prove that andi know why.
    Its a discussion, not a legal advise..

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