§ 212(d)(3)(A)(i) Non Immigrant Waiver
Overview
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What is Non Immigrant Waiver.
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Do I Qualify for a Waiver.
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What is the Process?
What is a 212(d)(3)(A)(i) Non Immigrant Waiver.
Aliens are ineligible to receive visas if they are inadmissible under any of the grounds in section 212(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a). Section 212(d)(3)(A)(i) of the INA, The Department of Homeland Security has authority to approve a waiver covering most grounds in section 212(a) of the INA, if the Secretary of State or a consular officer recommends that the alien be admitted temporarily into the United States, despite the inadmissibility. This provision does not authorize waivers under INA sections 212(a)(3)(A)(i)(I) (espionage or sabotage), (3)(A)(ii) (unlawful activity), (3)(A)(iii) (opposition to or overthrow of United States Government or opposition by force, violence, or unlawful means), (3)(C) (serious adverse foreign policy consequences), (3)(E)(i) (participation in Nazi persecutions), or (3)(E)(ii) (participation in genocide)). State regulations at 22 CFR 40.301 describe the authority of consular officers to recommend waivers.
Do I Qualify for a Waiver
You must first meet all requirements for the non immigrant visa. Only after you have met those requirements will you be considered for waiver. this means that the applicant must demonstrate that he or she has ties to the home country and that he or she will comply with the terms and conditions of the visa. This is critically important because consular officers often use 214(b) as a legal means to short-circuit and prevent any application for a nonimmigrant waiver. Therefore, any submission should address the 214(b) issue first, and then the criteria for the granting of the nonimmigrant visa waiver.
The Consulate will first prima facia approve the waiver application. The application is sent to the DHS for final approval. Issues of consideration are:
the risk of harm to society if the individual is admitted;
the seriousness of his or her violation;
the reason that the applicant is seeking admission;
the recency of the violation;
whether the applicant has been rehabilitated.
What is the Process?
The process may sound more lenient than the process for a waiver related to an immigrant visa but it is not.
The process can be timely. Therefore don not make travel plans in advance of approval.
The waiver may be filed with Customs and Border Patrol on their website, it may be filed at the U.S. Consulate and it may be filed with the USCIS.
The best process depends on your situation. It is best to consult with Mulder Law before deciding how best to proceed.