The 212D3 Waiver Explained by a US Immigration Lawyer
We often end up in situations that demand the use of a 212d3 immigration waiver. We are an exclusive immigration law firm and want to provide you with additional information about immigration waivers and immigration appeals.
A majority of our business is immigration waivers and immigration appeals. An immigration waiver is a process whereby the government overlooks what was done. This contradicts the US immigration laws. The 212d3 waiver is one of the most popular immigration waivers as it is very broad. An INA 212d3 waiver can be used both at a consulate, as well as at a port of entry. It is for nonimmigrants only. Therefore, if you are applying for a Green Card, you do not qualify for a 212d3 waiver. The breadth of this wonderful immigration waiver is absolutely incredible: it can waiver unlawful presence, health, and even criminal issues. Therefore, it is the most sought after immigration waiver and immigration appeal distributed.We have successfully used it on a large number of cases. The 212d3 waiver does not waive security-related grounds (ie espionage), but on the other hand, our office does not deal with those types of cases.
The lead case that is followed in this area of immigration law is Matter of Hranka, a case decided in 1978. A Canadian was deported for engaging in prostitution and two years later applied and was denied by the District Director. He felt that she could not be rehabilitated in 2 years’ time and that there were insufficient humanitarian reasons to let her return. This is a case I think he wished he would have thought about a bit longer as everyone is now reading about it. It was appealed to thge BIA (Board of Immigration Appeals) and they laid out three standards as to whether a 212d3 waiver should be approved:
- The risk of harm if the applicant’s 212d3 is approved and he or she enters;
- How serious the acts are that led to the inadmissibility in the first place; and
- The importance of the reason to seek entry.
A 212d3 waiver does not have to be issued for a major reason only; it can even be used for tourism or attending a business conference. Hranka, which is now being followed by the CIS and the ARO (Admissibility Review Office) seem to indicate that an officer should recommend one where he or she feels that the equities balance and there is a legitimate reason; in other words, contrary to the way the old (called legaly) INS looked at it, which was that thse people are inadmissible in the first place so should be treated accordingly. To summarize so far:
- You have a person who is inadmissible to the United States who
- Seeks to enter temporarily (all visas are temporary and 212d3 does not apply to Green Cards)
- Has a legitimate reason for wanting to enter, and
- Has enough good equities to create a convincing case.
There are two types of 212d3 waivers [some people use the dashes, some skip the brackets, some don’t, it’s essentially the same thing. There are also 212 waivers, extreme hardship waivers, and 601 waivers that are available, but we will not discuss].
A. 212-d-3-A-i for cases filed abroad (ie you are outside the country), and B 212-d-3-A-ii for cases filed with the District Director (in the US).
Requirements for Filing a 212d3 Waiver
- First and obviously, the person applying is inadmissible so the government needs to know the details of what led to the inadmissibility;
- Details of the intended trip to the US: how long the person plans on staying and why;
- Proof of rehabilitation and
- Proof of being a low risk if allowed in the United States.
We like to prepare a detailed legal brief that outlines all of this along with any supporting cases and code sections. If we can get an affidavit from the applicant or someone else who is of importance, we will. We also provide any other proof we can think that the government would like to see.
District Director 212d3 Waiver Filing
Let’s state the applicant is in the United States with a valid immigration visa. In that case, a procedure called Application for Advance Permission to Enter as a nonimmigrant must be prepared along with a Biographical Information sheet. In order to get a final answer, you must wait several months, so, like anything in immigration, plan ahead.