Chapter 4 - INA 212(d)(3) Waivers

A. When to Consider INA 212(d)(3) Waiver

USCIS considers whether the applicant may be eligible for a discretionary waiver under INA 212(d)(3)^[1] if the applicant is ineligible for a waiver under INA 212(d)(13), such as in the following circumstances:

• An applicant cannot establish that the conduct rendering the applicant inadmissible is connected to the trafficking; or
• The applicant is inadmissible under a ground not covered by INA 212(d)(13) but that is covered by INA 212(d)(3), which includes:
  • Certain security and related grounds (INA 212(a)(3));^[2]
  • International child abduction(INA 212(a)(10)(C));^[3] and
  • Former citizens who renounced citizenship to avoid taxation (INA 212(a)(10)(E)).^[4]

B. Discretionary Analysis

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,^[5] officers should also consider the following factors, as specifically outlined by the Board of Immigration Appeals, in determining whether to approve or deny an 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; and
• The reasons for wishing to enter the United States.^[6]

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.

Footnotes

[^ 1] U.S. Department of State (DOS) also adjudicates waiver applications. For more information on DOS waiver processing, see 9 FAM 305.4, Processing Waivers.

[^ 2] See INA 212(a)(3).

[^ 3] See INA 212(a)(10)(C).

[^ 4] See INA 212(a)(10)(E).

[^ 5] See Part A, Waiver Policies and Procedures, Chapter 5, Discretion [9 USCIS-PM A.5].

[^ 6] See Matter of Hranka (PDF), 16 I&N Dec. 491 (BIA 1978).