As a young corporate immigration lawyer, I was consistently surprised by how many of my clients, including high-ranking international managers and successful entrepreneurs, had a criminal record. And I’m not referring to white-collar crime. Petty thefts were most common, followed by assaults. One man, while in college, stole the wallet of a drunk at a bar; another broke a window and pilfered T-shirts from a university bookstore. Almost always (thankfully), these episodes happened years ago and the perpetrators had since discovered how to vent their innate heartlessness in legal and productive ways. The problem is that under the Immigration and Nationality Act, a crime can follow you for a long time and make it inconvenient or even impossible to pass by Customs and Border Protection without getting harassed or even put back on the plane and sent packing.
Enter the 212(d)(3) waiver, the (almost) perfect answer for inadmissibility issues.
INA section 212(d)(3) permits the attorney general in his or her discretion to waive an alien’s ineligibility for a visa or an admission into the United States. And, generously, unlike many of the INA’s more stingy waivers, 212(d)(3) can theoretically waive almost anything (with some explicit exceptions such as participation in committing genocide). In fact, convictions that would bar you for life from obtaining a green card, such as murder or drug trafficking, can be waived for those with non-immigrant intent, even those who intend to remain “temporarily” in the United States for a long time.
The key administrative case interpreting 212(d)(3) is a Board of Immigration Appeals decision from 1978 called Matter of Hranka. Under this, immigration officials are required to consider three factors in order to determine, in their discretion, whether to grant the waiver:
- The risk of harm to society if the applicant is admitted.
- The seriousness of the immigration law or criminal law violation.
- The nature of the applicant’s reason for wishing to enter the United States.
The board emphasized that this is a balancing test that should take rehabilitation into account. Also, critically, the applicant’s reasons for wishing to enter the United States need not be “compelling.”
212(d)(3) waivers are generally filed in person at a consulate abroad. Normally, the consular officers will make a decision whether to recommend the waiver on the spot, but they must then forward their recommendations to the Administrative Appeals Office of the Department of Homeland Security, which takes about six months to confirm. After that, the visa is granted with a special annotation, usually for a shortened period of time (e.g., a visitor visa with a normal duration of 10 years may be granted with a duration of just one year). After the visa expires, the alien usually must apply again, and although officials are supposed to give deference to past waiver grants, this does not necessarily result in faster processing times. The result may be that the alien is required to file for his or her new visa before the prior one is even half-expired. For a business manager looking to attend semi-annual corporate meetings in the United States, this can present a challenge and requires careful planning with immigration counsel.
A few final notes. Often a strategy of full disclosure, sincere apology, and emphasis on rehabilitation is critical. The consulate has a tremendous amount of discretion, and if it thinks your employee or loved one is holding something back, it may deny the waiver without even an explanation. This becomes particularly tricky when dealing with old misdemeanors or juvenile convictions, since the records are often sealed or have been routinely destroyed. The consular officer may interpret “I have no records because that conviction is 25 years old” as “those records are really damaging and I don’t want to show them to you.”
In short, the 212(d)(3) waiver is a near-blanket inadmissibility pardon that temporarily cures many ills and, in the right circumstances, can be a useful tool to facilitate the mobility of personnel who need to be internationally mobile to be effective.