212(d)(3)- Nonimmigrant Visa Waiver
Section 212(d)(3), also known as the Hranka waiver, allows a foreign national to be admitted to the U.S. despite being inadmissible based on criminal convictions, fraudulent acts, or overstay.
Matter of Hranka outlines the three legal factors that must be weighed by immigration authorities in deciding whether to grant the waiver:
1. the risk of harm to society if a waiver applicant is admitted to the U.S.
2. the seriousness of an applicant’s prior criminal or immigration violations, if any, and
3. the nature of the applicant’s reason for wishing to enter the U.S.
This type of waiver is quite generous since it forgives most grounds of inadmissibility. However, the grant is discretionary as well as the above criteria must be met prior to obtaining the approval.
One shall apply for this waiver along with an application for a nonimmigrant visa, such as tourist, work, or other at the U.S. Consulate where he or she resides. Alternatively, Canadians can apply for it at a Port of Entry via hand-delivering a Form I-192, Application for Advance Permission to Enter as Nonimmigrant along with supporting documentation. USCIS will actually make the determination on the application, should either consular or customs border officer determine that the foreign national is eligible to submit such application in the first place.
If you attempted to enter with ESTA, but were refused entry and told to apply for a tourist visa (B-1/B-2), then you may not necessarily need a waiver, depending on the basis of your refusal for entry.
The I-212 waiver is used when the foreign national seeks to reenter the United States after deportation or removal. As an order of expedited removal carries a ban from reentry of 5 years and an order of removal 10 years, the foreign national must apply and obtain this waiver before reentering the U.S. prior to the passage of time. The same thing applies if the removal was based on a conviction for an aggravated felony, which carried a ban of 20 years.
Most eligible applicants will apply for the I-212 waiver at the U.S. Consulate where they reside along with an application for immigrant visa, if married to a United States citizen, or nonimmigrant visa and perhaps an I-601 waiver to waive any other possible violations. Some other applicants may qualify to apply for such waiver with the USCIS, such as immigrant visa applicants who do not require an I-601 waiver, or applicants for adjustment of status. Canadians will apply for the same at a Port of Entry. In either instance, the I-212 waiver application should be submitted with proof of the following:
- The basis for deportation
- Recency of deportation
- Length of residence in the U.S.
- Moral character of the applicant
- Respect for law and order
- Evidence of reformation and rehabilitation
- Family responsibilities of applicant
- Inadmissibility to the U.S. under other sections of law
- Hardship involved to himself and others
- The need for his services (employment) in the U.S.
I-601- Waiver of Grounds of Inadmissibility
There are various grounds of inadmissibility which apply to applicants for admission to the United States. The most common grounds are that of criminal convictions or admissions to committing a crime, fraud and misrepresentation, public charge, unlawful presence, unlawful presence after previous immigration violations, entry without inspection, smugglers, and terrorism.
– Unlawful Presence
Unlawful Presence (INA § 212(a)(9)(B)): Any foreign national who has been unlawfully present for a period of more than 180 days but less than one year is inadmissible for 3 years. If the unlawful presence adds up to one year or more, the period of inadmissibility rises to 10 years.
Unlawful Presence After Previous Immigration Violation (INA § 212(a)(9)(C)): Any foreign national who has been unlawfully present in the U.S. for an aggregate period of more than 1 year, or who has been ordered removed from the U.S., who then enters or attempts to enter the U.S. without being admitted is inadmissible on a permanent basis. There is an immigrant waiver available but only after the foreign national has remained outside of the U.S. for a minimum period of 10 years.
– Criminal grounds of inadmissibility (212(h) waiver)
A foreign national is inadmissible to the U.S. if s/he has been convicted or, or who admits having committed, or who admits committing acts which constitute the essential elements of either (1) a crime involving moral turpitude (“CIMT”); or (2) an offense relating to a controlled substance.
There is no existing definition of what is a CIMT. However, several court precedents have offered some interpretation of the term. A CIMT refers generally to conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.
There are two exceptions to the admissibility rule for a CIMT, the first one being if the crime was committed when the foreign national was under 18 years of age, and more than 5 years before the date of application for admission to U.S. The second exception applies to petty offenses, meaning if the maximum penalty possible for the crime of conviction did not exceed imprisonment for one year and, if the foreign national was convicted of such crime, s/he was not sentenced to a term of imprisonment in excess of 6 months.
Furthermore, a foreign national will be deemed inadmissible based on the following:
Conviction of Two or More Offenses: Any foreign national convicted of 2 or more offenses, regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct, and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more.
Drug Trafficking: An foreign national will be found inadmissible if s/he is reasonably believed to be a trafficker in any controlled substance, or if s/he has been a knowing aider, assister, abettor, conspirator or colluder with others in the illicit trafficking in any controlled substance.
Prostitution: A foreign national who prostitutes, or who has engaged in or sought to engage in prostitution, or to procure prostitutes within the past 10 years, or seeks to engage in prostitution, is inadmissible.
Human Trafficking: A foreign national is inadmissible if s/he commits or conspires to commit human trafficking offenses in the U.S. or outside the U.S. In addition, a person will be inadmissible if immigration authorities know, or have reason to believe that the person has been a knowing aider, abettor, assister, conspirator, or colluder with a trafficker in severe forms of trafficking. NOTE: there is an exception to this ground of inadmissibility if the offense involves sons or daughters.
Money Laundering: Any person known or suspected to have engaged, is engaging, or seeks to enter the U.S. to engage in money laundering is inadmissible, as are knowing aiders, abettors, assisters, conspirators, or colluders.
– Fraud or misrepresentation (212(i) waiver)
Anyone who, by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission into the U.S., or any other benefit provided under the INA is inadmissible for life.
However, note that there is no waiver available for one who falsely claims U.S. citizenship for any purpose or benefit under the INA or any other Federal or State law.
Application for I-601 Waiver
The application for the above waiver is either filed in conjunction with an application for immigrant visa at the U.S. Consulate where the foreign national resides (then routed to a central location within USCIS) or with the local USCIS office where the foreign national will apply for adjustment of status (also routed to the central location within SCIS). The applicant must prove that his or her qualifying relatives would suffer extreme hardship in case his admission to the U.S. is denied. Note that who can be considered as a qualifying relative will depend on which section of the law the foreign national is found inadmissible.
The discretionary factors which are considered are some of the following:
- The presence of lawful permanent resident or United States citizen family ties to this country
- The qualifying relative’s family ties outside the United States
- The conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries
- The financial impact of departure from this country
- Significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate
- History of employment
- Existence of property or business ties
- Evidence of value and service to the community
- Proof of a genuine rehabilitation if a criminal record exists
- And other evidence attesting to the foreign national’s good character