Tag Archives: inadmissible nonimmigrant

212(d)(3) Nonimmigrant Waiver: When Do You Need It and How Do You Get It?

In this video, immigration attorney Dyan Williams discusses the 212(d)(3) nonimmigrant waiver, including answers to 4 frequently asked questions: do I need a visa with the waiver, do I qualify for the waiver, what must I prove to get the waiver, and how do I apply for the waiver?

For more information, read 212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

Contact Dyan for advice and guidance on the 212(d)(3) nonimmigrant waiver application process.

This video provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. Immigration laws, regulations and policies are subject to change. The sharing or receipt of this information does not create an attorney-client relationship.


Grant of Motion to Vacate Inadmissibility (Misrepresentation) Finding + Issuance of F-1 Student Visa = A True Success Story

On February 13, 2017, the U.S. Embassy granted my client’s Motion to Reconsider and Rescind Inadmissibility Determination Under INA 212(a)(6)(C)(i) (willful misrepresentation of material fact to gain immigration benefit) and issued his F-1 student visa. He may now pursue his studies in the United States, starting in fall 2017, after he was previously denied the visa two and a half years ago for misrepresenting information in his application.

The U.S. Embassy approved the motion and F-1 visa request within 3 weeks of when my client appeared for his visa interview and asked for a rescission of the inadmissibility finding.

Prior to the visa interview, I guided him in gathering documentary evidence and preparing his affidavit (written testimony) explaining his reasons for failing to disclose certain information in his prior student visa application. Citing to the record, I prepared the strongest legal briefs in support of a Motion to Reconsider and Rescind Inadmissibility Finding, as well as a 212(d)(3)(A) nonimmigrant waiver application as a backup option.

In his first F-1 student visa application, my client failed to disclose his prior names and previous visit to the United States. After the U.S. Embassy charged him as inadmissible and denied his visa due to misrepresentation, it instructed him to file for a nonimmigrant waiver of inadmissibility.

He did not file for the waiver, but instead hired another attorney to challenge the inadmissibility finding. The attorney submitted a Request for Advisory Opinion to the Visa Office, but did not counsel him to re-apply for the F-1 student visa and appeal directly to the U.S. Embassy to vacate the inadmissibility finding.

By the time he consulted me, he had been waiting for more than 2 years since his first F-1 visa application was denied and more than 1 year since his prior attorney filed the Request for Advisory Opinion (with no decision to date).

A willful misrepresentation charge under section 212(a)(6)(C)(i) permanently bars an applicant from obtaining a visa or entering the United States. To be inadmissible on this ground, he must not only willfully misrepresent information, but the information must also be material to his visa eligibility.

After reviewing my client’s case, I concluded his refusal to disclose information – which was specifically requested on the visa application form – did not affect whether he qualified for the visa. He also had compelling reasons for not providing the information, which had nothing to do with obtaining the visa.

I advised him to re-apply for the F-1 visa and, as option A, file a motion to vacate the inadmissibility finding directly with the U.S. Embassy.  He also agreed to have a 212(d)(3)(A) nonimmigrant waiver request prepared, as option B, in the event the U.S. Embassy denied his motion to vacate.

The U.S. Embassy agreed to vacate the 212(a)(6)(C)(i) charge and issue the F-1 visa after I presented a convincing legal argument, persuasive documentary evidence, and a detailed affidavit from my client showing he needed to enter the United States to attend school, has strong ties to his country, would pose no harm to the community, and did not commit material misrepresentation to be inadmissible.

The 212(d)(3)(A) waiver request was available as an alternative solution, but it normally takes at least four months to process. The client needed to receive his visa by May 1st to confirm attendance at the school, which had deferred his admission for more than two years and could not hold his place beyond fall 2017.

He was relieved and happy when the U.S. Embassy granted the motion to vacate inadmissibility finding and issued the F-1 visa by February 13th, which spared him from using the lengthier waiver application process.

Because the permanent bar to receiving a visa or entering the United States under 212(a)(6)(C)(i) no longer exists, it will be much easier for him to obtain visa renewals and travel to the United States.

My client, who lives in East Asia, communicated with me by Skype initially, and then by telephone and email during the course of representation. At the time he consulted me, he had contacted another attorney to file a 212(d)(3)(A) waiver request. The attorney told him it would take at least 4 months to prepare the waiver application and if he wanted it sooner, he would have to pay a much higher fee. The attorney did not advise him to file a motion to vacate the inadmissibility finding with the U.S. Embassy, even though this was the better option under the circumstances.

I prepared both the motion and the 212(d)(3)(A) waiver request at a reasonable fee within 2 months. The foreign national was pleased with the collaborative process and thankful for the favorable, timely results. This is a true success story in early 2017 for Dyan Williams Law PLLC.

Helping clients overcome visa refusals through the rescission of inadmissibility findings or through waiver grants are among my top areas of expertise. Enabling a foreign national to obtain a visa to enter the U.S. lawfully – especially after he has been deemed inadmissible- takes a lot of time, attention, and work. But the potential benefits are worth the dedicated effort.


Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900


This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.


Photo by: Tara R.

212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

Section 212(a) of the Immigration & Nationality Act lists the grounds on which a foreign national is barred from entering the United States. Inadmissible persons may not obtain a nonimmigrant visa (e.g. B-1/B-2 visitor, F-1 student, H-1B worker) or enter the U.S. as a nonimmigrant without a section 212(d)(3) waiver. Visa-exempt persons (e.g. most Canadian citizens) and persons who already have travel documents also need the waiver if they are inadmissible to the U.S.

Although the 212(d)(3) nonimmigrant waiver provides several advantages, it also has disadvantages.

What are the Advantages of the Section 212(d)(3) Nonimmigrant Waiver?

1.  The waiver is broad

For non-immigrants, the 212(d)(3) waiver overcomes almost every ground of inadmissibility listed in section 212(a). This includes health-related grounds, criminal offenses, prostitution, smuggling, fraud or willful misrepresentation of material fact to gain immigration benefits, false claims to U.S. citizenship to gain benefits under federal, state or immigration law, and unlawful presence in the U.S.

2. The waiver is available to almost all non-immigrants

Inadmissible persons who do not qualify for an immigrant waiver often still qualify for a 212(d)(3) waiver.

For example, a foreign national who is inadmissible due to a crime involving moral turpitude within the last 15 years and who has no U.S. citizen or permanent resident spouse, parent, son or daughter for the 212(h) immigrant waiver may enter the U.S. as a nonimmigrant with a 212(d)(3) waiver.

212(d)(3) waiver applicants do not need to show family ties in the U.S. or prove hardships will result if they are not admitted to the U.S. The standards are much higher for 212(a)(9)(B)(v) (unlawful presence) waiver applicants, for example, who must demonstrate a U.S. citizen or permanent resident spouse or parent will suffer extreme hardship if they are not admitted as an immigrant.

A person has a permanent bar under INA 212(a)(9)(C)(i)(I) [9C1] if he reentered or attempted to reenter the U.S. illegally (without inspection or lawful admission) after he accrued more than one year (in the aggregate) of unlawful presence in the U.S. and left. An immigrant visa applicant must wait outside the U.S. for 10 years before he may file for a Consent to Reapply for Admission (permanent relief) to be excused from the 9C1 bar. In contrast, a nonimmigrant visa applicant may seek a 212(d)(3) waiver (temporary relief) through the U.S. Consulate, at any time, to be excused from the same 9C1 bar.

3. The waiver has flexible eligibility standards

The criteria that applicants must meet to get the 212(d)(3) waiver is not defined by statute. In Matter of Hranka, however, the Board of Immigration Appeals listed three factors that must be considered in deciding whether to grant or deny the waiver. They are:

  • The risk of harm to society if the applicant is admitted to the U.S.
  • The seriousness of the applicant’s prior immigration law or criminal law violations, which caused the inadmissibility.
  • The importance of the applicant’s reasons for seeking to enter the U.S.

When reviewing a 212(d)(3) waiver application, the decision-maker applies a balancing test involving these three factors.

The Board stated there is no requirement the applicant’s reasons for wishing to enter the U.S. be “compelling.” The 212(d)(3) waiver is not only for exceptional, humanitarian or national interest cases. It may be granted for any legitimate purpose such as medical treatment (even if available abroad), family visits, school attendance, and tourism. Even applicants with serious criminal convictions, including aggravated felonies, may file for the waiver.

What are the Disadvantages of the Section 212(d)(3) Nonimmigrant Waiver?

1.  The waiver does not overcome every ground of inadmissibility and is not available to all non-immigrants

The 212(d)(3) waiver does not overcome inadmissibility grounds related to:

  • Security-related grounds (e.g. espionage, sabotage) [INA section 212(a)(3)(A)(i)(I) & (II), (3)(A)(ii), (3)(A)(iii)];
  • Foreign policy considerations [INA section (3)(C)];
  • Participation in Nazi persecutions [INA section 3(E)(i)]; or
  • Participation in genocide [INA section 3(E)(ii)]

Persons who are inadmissible under any of these grounds do not qualify for the 212(d)(3) waiver.

In addition, the 212(d)(3) waiver will not be given to K nonimmigrant visa applicants who are inadmissible under INA 212(a) grounds for which there is no immigrant waiver when they file for permanent residence. And if the INA 212(a) ineligibility ground may be waived after (or as a result of the) marriage to the petitioner, the K visa applicant must file a Form I-601, Application for Waiver of Ground of Inadmissibility, not a 212(d)(3) waiver request.

2. The waiver does not cover inadmissibility grounds that must be excused by a Form I-212 approval or grant of Consent to Reapply

Persons who have been previously removed from the U.S.  and are subject to a 5, 10 or 20 year-bar to re-entry [under INA section 212(a)(9)(A)(i) and (ii)] must file a Consent to Reapply or Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal. 

Furthermore, persons who face the lifetime bar under INA 212(a)(9)(C)(i)(II), i.e. illegal re-entry or attempted illegal re-entry, on or after April 1, 1997, following a removal order, may not use the 212(d)(3) waiver to be excused from this inadmissibility ground. Just like immigrant visa applicants, nonimmigrant visa applicants who are subject to the section 212(a)(9)(C)(i)(II) [9C2] bar must wait outside the U.S. for 10 years before they may file for the Consent to Reapply/Form I-212 waiver.

The Consent to Reapply or “I-212 waiver” must not be confused with the 212(d)(3) waiver. Compared to 212(d)(3) waiver applicants, CTR or Form I-212 applicants must meet higher eligibility standards and evidentiary requirements. For example, close family ties in the U.S. and unusual hardship to U.S. citizen or permanent resident relatives are strong favorable factors in an I-212 application, especially when it is connected to an Immigrant Visa request. These factors are not so important in a 212(d)(3) waiver application and might even work against a person seeking to visit the U.S. temporarily.

3. The grant of the waiver is completely discretionary

It is within the complete discretion of the Admissibility Review Office (ARO), which is part of the U.S. Customs & Border Protection (CBP), to grant the waiver. When you need to receive a visa from the U.S. Consulate, you also first need to convince this agency or the U.S. Department of State to recommend the waiver for the request to be forwarded to CBP.

Qualifying for the waiver doesn’t necessarily mean you will get it. The adjudications officer who weighs the 3 Hranka factors may find the negative factors outweigh the positive factors and deny the waiver request.

There is no formal appeal process. Typically, the only recourse it to file for the waiver again when circumstances change or when more supporting evidence is gathered.

Although the eligibility standards are flexible, the 212(d)(3) waiver is still hard to get, especially when the person is inadmissible due to serious criminal convictions and/or egregious immigration violations. The more recent the violation(s), the higher the obstacles in receiving the waiver.

In addition, to receive most nonimmigrant visas (such as B1/B2 visitor and F-1 student visa), you must overcome the presumption of immigrant intent under INA 214(b). In particular, you need strong ties to a residence abroad that will compel a timely departure from the United States and deter a violation of the terms of the visa. If the U.S. Consulate finds the INA 214(b) requirement is not met, it will not accept or review a 212(d)(3) waiver application.

Validity of the Waiver

The 212(d)(3) waiver may be issued for a maximum period of 5 years or up to the expiration of the visa, whichever is earlier. Normally, the waiver is valid for 1 year, especially for first-time applicants.

[UPDATE: In April 2016, the ARO announced it will generally approve 212(d)(3) waivers for a 5-year period, in both initial and renewal applications filed at the border entry points and at the U.S. Consulate, as of January 2017.  The one exception is for crewmembers whose granted waivers will be valid for two-year periods.]

In all cases, a waiver grant is not transferable to a new visa or to an extension or change of status. The waiver is valid for up 5 years or up to the visa expiration date, whichever is earlier. Once the visa expires, the person normally has to file for a waiver renewal (along with appropriate visa) to re-enter the U.S. as a nonimmigrant.

The authorized period of stay as a nonimmigrant — not the validity period of the waiver — determines when the person must leave the U.S. without violating immigration law.

Filing the 212(d)(3) Nonimmigrant Waiver  

The 212(d)(3) waiver application is filed either with the U.S. Consulate or with the CBP.

Waiver application at the U.S. Consulate

Applicants who need a nonimmigrant visa must file the 212(d)(3)(A)(i) waiver with the U.S. Consulate. When the 212(d)(3) waiver request is filed with the U.S. Consulate, no filing fee and no Form I-92 are required.

After the consular officer reviews your nonimmigrant visa application and makes an initial finding of inadmissibility, you may submit your waiver application on the day of the interview or days after the interview.

Assuming you are otherwise eligible for the visa, but for the inadmissibility bar, the consular officer ought to at least consider your waiver request. If the officer believes the waiver should be granted, he or she will make a favorable recommendation and forward the case to the CBP’s Admissibility Review Office for a final decision. If the officer does not recommend the waiver, the applicant may request review by the Department of State. (NOTE: The waiver application is not forwarded to the CBP’s ARO if the consular officer or Department of State determines the waiver request should be denied.)

If the ARO grants the waiver, the U.S. Consulate then decides whether to actually issue the nonimmigrant visa. Even when the 212(d)(3) waiver is granted, the U.S. Consulate may deny the visa for other reasons, e.g. the B-1/B-2 applicant failed to overcome the presumption of immigrant intent under INA 214(b). A waiver grant facilitates but does not guarantee the issuance of the visa.

Waiver application at the U.S. Port of Entry

Certain nonimmigrants do not require a visa to enter the United States for temporary visits. They include visa-exempt citizens of Canada, Palau, Federated States of Micronesia, and the Republic of the Marshall Islands.  [NOTE: Being visa-exempt is not the same as being a citizen of a Visa Waiver Program (VWP) country, where the applicant still has to receive authorization under ESTA. ESTA will not be granted to an inadmissible person.]

When a visa-exempt person files the 212(d)(3) waiver request with the CBP, a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant , plus the filing fee,  are required. The Form I-192 and accompanying documents should be filed in person with the CBP, months in advance of travel.

[UPDATE: Starting in mid-2019, eligible citizens of visa-exempt countries file the Form I-192 application through the online system, e-SAFE. Electronic filers need to go to the following ports of entry to complete the biometrics portion (fingerprints and photograph) of the waiver process: Blaine, Washington; Buffalo, New York; and Toronto Pearson International Airport. ] 

The CBP will forward the I-192 application and supporting documents to the ARO for further processing.


Inadmissible persons who are applying for T nonimmigrant status or U nonimmigrant status file the Form I-192 (waiver request) with U.S. Citizenship & Immigration Services (USCIS).

Processing Times

When the 212(d)(3) waiver request is filed with the U.S. Consulate, you can expect a normal processing time of 150 to 180 days before the ARO issues a final determination. The minimum processing time of 60 to 120 days is very rare.

When the 212(d)(3) waiver request is submitted directly to the CBP, you can expect a minimum processing time of 90 to 120 days, but it could be up to 150 to 180 days before the ARO issues a final determination.

Processing times are merely estimates and there can be long delays.

Work with an Immigration Attorney

The 212(d)(3) waiver, by itself, does not allow you to enter the United States. You still need the proper travel documents, including appropriate visa, to seek admission to the United States.

A 212(d)(3) nonimmigrant waiver request should include a cover letter/legal brief, affidavits and supporting evidence demonstrating why you are eligible for the waiver and deserve it as a matter of discretion. Having an experienced immigration attorney guide you through this process will make a positive difference.

For more information, watch the video:


This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.


Photo by: Hernán Piñera