INA 212(d)(3)

Most visa refusals or other application denials are simple denials that do not carry any adverse affects beyond that particular application being denied.  However, in some cases, a denial come with other serious repercussions that come with bars to enter the United States.  Some of these bars are temporary and could last 5, 10, 15, or 20 years and others carry lifetime bars.

INA 212(d)(3) gives you a path to apply for a temporary waiver of that bar if you would like to enter the US temporarily on a work visa, family visa, or other US visa.

Applications for this US waiver are made on Form I-192 if you are visa exempt (Canadian) or are already in possession of a valid visa.  This application is made with CBP, US Customs and Border Protection, at the port of entry.  This application generally made in person at a CBP-designated port of entry or a CBP-designated preclearance office.  If you are applying for a T Visa or U Visa then the application would be made with USCIS.  Once the application is made, the file is reviewed by the Department of Homeland Security and a decision is typically rendered in 6 months.

If you are not visa exempt or do not already have a valid visa then the application is made with the US Embassy when you apply for a visa.  This is more difficult and there is a five step process.

Step 1.  Apply for a nonimmigrant visa such as a work visa, family visa, or other US visa.

Step 2.  Appear in person for the nonimmigrant visa interview and prove your eligibility for the visa.

Step 3.  Apply for the INA 212(d)(3) waiver.

Step 4.  The Consular Officer must recommend to the Department of Homeland Security that your waiver be approved.

Step 5.  The Department of Homeland Security reviews the US waiver application.

Once the Consular officer recommends approval, a decision is typically rendered by the Department of Homeland Security in 6 months.

INA 212(d)(3) provides an opportunity to apply for a US waiver if you have been deemed inadmissible pursuant to one or more of the following sections of law

• 212(a)(1)(A)(i) Communicable Disease
• 212(a)(1)(A)(iii) Physical or Mental Disorder
• 212(a)(1)(A)(iv) Drug Abuser / Drug Addict
• 212(a)(2)(A)(i)(I) Crime Involving Moral Turpitude (CIMT)
• 212(a)(2)(A)(i)(II) Controlled Substance Violations (Drug Crimes)
• 212(a)(2)(B) Multiple Criminal Convictions
• 212(a)(2)(C)(i) Controlled Substance (Drug) Traffickers
• 212(a)(2)(C)(ii) Family Members of Controlled Substance (Drug) Traffickers
• 212(a)(2)(D)(i) Prostitution
• 212(a)(2)(D)(ii) Pimping or Procuring a Prostitute
• 212(a)(2)(D)(iii) Commercialized Vice
• 212(a)(2)(E) Asserted Immunity from Prosecution
• 212(a)(3)(B) Terrorist Activities
• 212(a)(4) Public Charge
• 212(a)(5)(C) Uncertified Health Care Workers
• 212(a)(6)(B) Failure to Attend Removal Proceedings
• 212(a)(6)(C)(i) Misrepresentation
• 212(a)(6)(C)(ii) False Claim to US Citizenship
• 212(a)(6)(E) Smugglers
• 212(a)(6)(F) Civil Penalty under INA 274C
• 212(a)(6)(G) Student Visa Abusers
• 212(a)(8)(B) Draft Evaders
• 212(a)(9)(A)(i) & 212(a)(9)(A)(ii) Ordered Removed Upon Arrival
• 212(a)(9)(B) Unlawful Presence
• 212(a)(9)(C) Unlawful Presence after Prior Immigration Violation
• 212(a)(10)(C) International Child Abduction
• 212(a)(10)(D) Unlawful Voter
• 212(a)(10)(E) Former Citizen Who Renounced Citizenship to Avoid Taxes

A nonimmigrant waiver can be issued for a one year term (five year term in limited circumstances) where the foreign national is eligible for a nonimmigrant visa and can establish his or her presence would not be harmful to US interests.  When the application for the waiver is made, normally at the Consulate the will issue the nonimmigrant visa, the Consular officer will consider the following factors when deciding whether or not to issue the visa

1. The recency and seriousness of the activity or condition causing the inadmissibility;
2. The reasons for the proposed travel to the US; and
3. The positive or negative effect, if any, of the planned travel on US public interests.