It is not uncommon for a nonimmigrant to the United States overstaying their visa while trying to secure a job opportunity or violate part of the regulations related to their status, such as unauthorized employment, overstaying, or going to class/work before one is authorized to do so.
Such violations normally have serious consequences resulting in denial of change of status within the U.S. or denial of future entry to the United States. Some of the mistakes are curable but some are not. In this blog post, we will talk about one of the waivers for nonimmigrant visa holders with which they may be able to waive the prior violations against their visa status.
Section 212(d)(3) of the Immigration & Nationality Act (“INA”) allows the U.S. Attorney General to waive most of the grounds of inadmissibility when nonimmigrants seeking entry to the U.S. on a temporary basis. This applies to B-1/B-2 visas, F-1 student visas, and H-1B professional worker visas. It does not apply to those who seek permanent residency because they have other types of waivers applicable to them. The nonimmigrant waiver based on INA Section 212(d)(3) is also called Hranka waiver, which was based on a Board of Immigration Appeals (BIA) precedent decision in the Matter of Hranka , 16 I&N Dec. 491 (BIA 1978). (The Full Decision is here ).
A 212(d)(3) waiver can overcome most of the inadmissibility grounds including but not limited to:
A 212(d)(3) waiver may be sought at any time at the discretion of the Consulate and Customs and Border Patrol (CBP) officers.
The adjudicating officers will usually consider the following general criteria in deciding whether to grant a non-immigrant waiver:
They also would like to ensure that
Depending on the prior grounds of inadmissibility, the evidence required to persuade the officers at the Consulate or Point of Entry would be different. Usually besides the Form I-192 and other related documents to prove the criteria, an applicant for the waiver should also supply a brief (written legal argument) outlining the applicable laws and reasons why your case should be eligible for a waiver. Because nonimmigrant visa waivers are dealing with situations with prior immigration law violations and grounds of inadmissibility, it is strongly recommended that you seek assistance and advice from an immigration attorney.
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