212(d)(3) Waiver to Inadmissibility

Summary: The 212(d)(3) waiver allows for foreign nationals who would otherwise be inadmissible, to enter the United States as a temporary visa holder.  This waiver is often used to overcome inadmissibility issues such as the 3 or 10 year bar for unlawful presence, overstaying a previous visa, criminal conduct, or previous fraud, among others.

Who May Apply: The 12(d)(3) waiver is available to foreign nationals who wish to enter the United States for many reasons, including foreign nationals who are seeking to enter the United States to be a student, business and tourist visitor, H-1B holder,  L-1 intracompany transferee, or E-2 reaty investor.

Factors: The 212(d)(3) waiver is granted at the discretion of the Department of Homeland Security. The department’s discretion is based mainly upon these factors:

• Whether there is a risk of harm to society if the foreign national is allowed into the United States,
• The seriousness of the foreign national’s criminal or immigration violation (or other grounds of inadmissibility), and
• The reason for the foreign national coming into the United States.

When to Apply: Most often a foreign national must apply for the 212(d)(3) waiver at the time he or she applies for the visa at the U.S. Consulate.  Even though a foreign national will usually apply for the visa at the U.S. consulate, the consulate will need to transfer the waiver application to the USCIS for a  final decision.

If you need a 212(d)(3) waiver to enter the United States as a temporary visa holder, please contact Gafner Law Firm.  Preparing the waiver takes special care and experience.