Asian Journal- The Filipino-American Community Newspaper

AN often overlooked tool for individuals seeking entry into the United States despite an inadmissibility on their record is the Section 212(d)(3) waiver. Section 212(d)(3) of the Immigration and Nationality Act is a generous provision which helps those seeking to enter the US for a temporary purpose, despite any one of a number of inadmissibility grounds. These grounds can include prior crimes, immigration misrepresentations, or health-related grounds, among others. The waiver provision applies to virtually all grounds of inadmissibility, except certain security related grounds.

With such broad coverage, it is imperative that our foreign friends considering a temporary visit to the US are aware of the parameters and powers of Section 212(d)(3) relief. The nonimmigrant visa waiver is only available to those who are applying for a temporary visa, such as a student, visitor, business or temporary worker visa. Intra-company transferees and investors hailing from treaty countries are also included, as are individuals of extraordinary ability and performance artists. Ever wonder how that favorite musician or athlete made it into the US for a concert despite their past troubles with the law? Meanwhile, those permanently immigrating to the US based on petitions from family members and fiancé(e)s are not eligible for the Section 212(d)(3) waiver.

Whether or not to grant a nonimmigrant waiver of inadmissibility is within the discretion of the Department of Homeland Security (DHS). The DHS uses criteria set forth by the Board of Immigration Appeals (BIA) in its decision in Matter of Hranka when considering Section 212(d)(3) waivers. Specifically, three criteria set forth by the BIA in Hranka are:

The risk of harm to society if the applicant is admitted;

The seriousness of the applicant’s prior immigration or criminal law violations (if any); and

The reasons for wishing to enter the US.

A thorough balancing of the above elements is undertaken by the immigration officer when determining whether the applicant should be banned from the US – either temporarily, or in some cases, forever. In Matter of Hranka the BIA did not include rehabilitation as a criterion, but a close reading of the case shows that where the inadmissibility is based on a past crime, the applicant’s rehabilitation may play a positive discretionary role. Further, the Section 212(d)(3) waiver contains no bar for those convicted of aggravated felonies. While an individual convicted of an aggravated felony would have a difficult burden in satisfying the Hranka criteria, a showing of rehabilitation would be a positive discretionary factor.