New York Lawyer's Legal Updates

Non Immigrant Visa Waiver 212(d)(3)

Author: New York Immigration Lawyer Alena Shautsova

All visas to the US can be classified as immigrant, non-immigrant and dual intent visas. Immigrant visas are basically “stickers” in one’s passport that allow a person to cross the border in the US and be admitted into the US an immigrant or a green card holder. They can be issued in various categories, depending on how a person is qualified for a green card: son/daughter of a permanent resident, or spouse of a US citizen entering whose residence is conditional, etc. Non-immigrant visas allow a person to stay in the US temporarily, usually for a particular purpose. Examples of those visas are: B1/2, F1, M1, J1, etc.

This article is most relevant to former permanent residents who lost their status and also to those who were found inadmissible during the process of applying for an immigrant visa. Often, when a person files for an immigrant visa, he/she cannot get it due to a ground of inadmissibility he/she cannot obtain a waiver for in connection with an application for an immigrant visa. At times, a permanent resident would find themselves without a possibility of obtaining a new immigrant visa due to a conviction of an aggravated felony or a permanent bar.

But often, it is possible to receive a non-immigrant visa at a US Consulate for the same person with the special waiver for non-immigrant visas. Such a waiver is authorized under INA 212(d)(3)(A). The only grounds of inadmissibility that this waiver does not waive are policy considerations and participation in Nazi persecutions.

Provided a person is otherwise qualified for a visa, a consular officer may recommend that 212(d)(3)(A) waiver is applied. These are the factors the officer takes into consideration:

  • (1) The recency and seriousness of the activity or condition causing inadmissibility;
  • (2) The reasons for the proposed travel to the United States;
  • (3) The positive or negative effect, if any, of the planned travel on U.S. public interests;
  • (4) Whether the incident in question is isolated or there is a pattern of misconduct; and
  • (5) Evidence of reformation or rehabilitation.

If granted, such a waiver is valid for five years or for the time the visa is valid if shorter. Such a waiver is visa specific. If a person receives it for B1 visa, he/she cannot use it in connection with F1 visa or an application for a change of status in the US. This waiver helps only for non-immigrant visas/status. If a person upon entry to the US will try to apply for adjustment of status, the waiver will be meaningless.

212(d)(3)(B) waivers are pretty much the same thing but for the applicants who are from visa waiver countries and for whom visa requirements are waived.

It typically takes about 180 days for the Consulate to make a decision on the waiver. If the decision is a positive one, then the Consulate informs authorities in the US (CBP’s Admissibility Review Offices) about its favorable recommendation. It is the ARO that actually makes the final decision. Only after that, a consul will make his/her final decision on the visa application.

The 212(d)(3) waiver is not easy to get but can be a good solution or at least a try for someone with permanent bar related to unlawful presence, or an aggravated felony conviction.

20 April 2018
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