When a nonimmigrant is applying for a specific type of visa such as a tourist visa (B-1, B-2), student visa (F-1, J-1) or a work visa (H-1B), they may be inadmissible because of a prior deportation or removal due to a criminal conviction or having committed fraud to obtain a prior immigration benefit. The 212(d)(3) waiver can provide the applicant a method to overcome that ground of inadmissibility.
The 212(d)(3) waiver is a purely discretionary matter and immigration officials can approve or deny this application without leave for appeal. According to relevant case law, US DHS will decide whether to grant the waiver based on three (3) criteria:
- the risk of harm to society if you are admitted to the US;
- the seriousness of your criminal or immigration law violation; and
- your reason for seeking entry.
Unlike most other waivers, there is no requirement for an extraordinary reason for entering the US, instead it only requires a legitimate purpose, such as:
- visiting family
- seeking medical attention
- attending a business meeting/conference
- tourism
In addition to the Form I-192, it is recommended to submit additional information to support your application such as:
- an affidavit explaining your previous criminal and/or immigration violations, as well as stating the reasons for seeking entry into the US with an explicit statement that you intend to leave the US at the end of your valid immigration status
- evidence of your ties to your country or residence, e.g. employment, education and/or community involvement
- evidence of reform and rehabilitation (treatment or counseling)
- letters of support attesting to your good moral character
For additional information on this and other waivers that may be available for immigration applications, contact our offices.
