I-212 Waivers

Introduction to the I-212 Waiver

The I-212 waiver (under Section 212(a)(9)(C)(ii) of the Immigration and Nationality Act) allows foreign nationals to apply for early readmission into the U.S. after having been previously removed and before they have met their statutory period of stay outside the U.S.

Background on statutory periods of stay outside the U.S.

Foreign nationals who have been ordered removed may not be readmitted to the United States until they have remained outside the country for a specified period of time:

  • 5 years for individuals removed through summary exclusion or through removal proceedings initiated upon the person’s arrival into the U.S.
  • 10 years for those otherwise ordered removed after a deportation hearing or who departed the U.S. while an order of removal was outstanding; and
  • 20 years for a second or subsequent removal.

Foreign nationals who have been unlawfully present for more than one year, or who have been ordered removed, and who re-enter or attempt to re-enter without being admitted, are permanently inadmissible.  They must file the I-212 waiver for permission to reapply for admission but may only do so if 10 years have passed since their last departure from the United States.

212(d)(3) General Waiver for Non-Immigrants

Introduction to the 212(d)(3) Waiver for Non-immigrants

Non-immigrants are foreign nationals seeking to enter the U.S. on a temporary basis.  They differ from immigrants who intend to live in the U.S. on a permanent basis.

Section § 212(d)(3) of the Immigration and Nationality Act waives virtually all grounds of inadmissibility for non-immigrants including health, criminal, prostitution, smuggling, and unlawful presence.  The only grounds of inadmissibility not waived are certain security-related grounds related to espionage, sabotage, genocide, and Nazi Persecution.

Legal Requirements of the § 212(d)(3) Waiver

212(d)(3) General Waiver for Non-Immigrants

§ 212(d)(3) non-immigrant waivers (also referred to as 212(d)(3)(A) waivers) are adjudicated by the Admissibility Review Office located in Washington D.C.  The three criteria for granting a waiver under § 212(d)(3) are set forth in the Matter of Hranka:

  1. The risks of harm in admitting the applicant;
  2. The seriousness of the acts that caused the inadmissibility;
  3. The importance of the applicant’s reason for seeking entry.

Both Department of State regulations and the Foreign Affairs Manual provide that, “while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.”  Non-immigrant waivers are filed either at the U.S. consulate with jurisdiction of your place of residence or at a U.S. port of entry.

Non-immigrant waivers pursuant to INA § 212(d)(3) may only be issued for a maximum period of 5 years at a time.  They are typically issued for 6 months or 1 year periods.

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