There are many reasons that an individual may be found inadmissible to the United States, such as a prior removal, unlawful presence bar, fraud, or criminal conviction.While there are waivers when applying for an immigrant visa, those waivers are often very difficult to obtain as there is an onerous requirement of proving that the individual has a qualifying relative who would suffer extreme hardship.For those without a qualifying relative, or some situations such as criminal violations for drugs and other offenses where a waiver is not available, the immigrant visa therefore is completely unavailable.
Fortunately, the immigration laws allow for a waiver of inadmissibility to those seeking to obtain a nonimmigrant visa to enter the United States.Examples of nonimmigrant visas are B-2 tourists, F-1 students, H-1B specialty occupation workers, E traders and investors, L intracompany transferees, R-1 religious workers and O/P entertainers.The waiver, which is known as a 212(d)(3) waiver, may be a good avenue to pursue for those ineligible to obtain an immigrant visa as the criteria are much more liberal than waivers for immigrant visas.If granted, it would at least allow the individual to enter the United States and, in certain situations, possibly ultimately adjust to permanent residency. The criteria used to assess whether to grant a 212(d)(3) waiver are as follows:1) risk of harm to society if the individual is admitted into the US; 2) seriousness of the individual’s prior immigration law or criminal law violation; and 3) the individual’s reason for wanting to come into the US.The immigration will balance these criteria to determine whether the waiver should be granted, thereby allowing for issuance of the nonimmigrant visa. As an example, the primary case enunciating the criteria for assessing a 212(d)(3) waiver involves a Canadian woman who had been deported from the US for prostitution.Matter of Hranka, 16 I&N Dec 491 (1978).Ms. Hranka sought to enter the US as a tourist in order to occasionally visit her US citizen mother, as well as just shop and dine in US.The Board of Immigration Appeals determined that although her reasons for wishing to enter the US were not compelling, that she had shown sufficient rehabilitation warranting the opportunity to allow her to come to the US as a tourist. If granted a 212(d)(3) waiver, the individual would then be eligible to obtain a nonimmigrant visa to enter the US.Moreover, for those who may be subject to the 3 or 10 year unlawful presence bar because they had previously been in the US unlawfully, a recent immigration opinion indicates that the 3 or 10 year time period continues to run even though the individual is already in the US.Therefore, instead of waiting 3 or 10 year outside the US, the individual could be lawfully in the US as a nonimmigrant during the 3 or 10 year time period. The 212(d)(3) nonimmigrant visa waiver is certainly a viable option for those who otherwise would not be eligible to enter the US.
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