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212 d 3 Waiver

An INA 212(d)(3) waiver is required when a noncitizen is seeking to obtain a nonimmigrant visa and they are inadmissible under INA 212(a)(3).

Note: In the case of T nonimmigrant status, there is an INA 212(d)(13) waiver available, which was specifically created for T nonimmigrant applicants. More info on 212(d)(13) waivers for T nonimmigrants in the USCIS Policy Manual here.

Factors Considered For 212(d)(3) Waiver

The INA 212(d)(3) waiver analysis is a purely discretionary determination, and the analysis involves balancing social and humanitarian considerations against adverse factors.

In addition to considering a broad range of discretionary factors, USCIS will also consider the following factors, as specifically outlined by the Board of Immigration Appeals, in determining whether to approve or deny a section INA 212(d)(3) waiver:

  • The risk of harm to society if the applicant is admitted;
  • The seriousness of the applicant’s prior immigration law or criminal law violations, if any;

  • The reasons for wishing to enter the United States.

In addition to these factors, officers should take into account as a positive factor that the applicant has suffered a severe form of human trafficking in persons and has complied with any reasonable law enforcement requests for assistance.