212(d)(3) Non-immigrant Visa WaiverLaw Offices of Michael D. Baker

What is a 212(d)(3) Non-immigrant Visa Waiver?

Some foreign nationals may be deemed inadmissible under INA 212(a), which covers bases including unlawful presence, criminal violations, and immigration fraud or misrepresentation. If a foreign national is considered inadmissible, then he or she must obtain a waiver of inadmissibility under INA 212(d)(3) if they are seeking admission to the county on a non-immigrant visa, such as a B1/B2 visitor visa. This waiver may be available for grounds that could otherwise not be waived if the applicant was seeking admission on an immigrant visa.

If you have violated the US immigration laws and want to enter the US with a non-immigrant visa there may be a waiver available. The section of the Immigration and Nationality Act (I.N.A.) that provides for a waiver is 212(d)(3). Non-immigrant visa holders are those who have entered the United States with permission, for a temporary period. Examples include tourist for business or pleasure, students, H-1B visa holders and other temporary workers, treaty traders and investors, intra-company transferees, and foreign government officials.

A waiver under this law allows visitors to temporarily enter the US even if they are found to be inadmissible. Some of the grounds that are covered by the waiver include permanent grounds of inadmissibility, such as fraud or criminal conduct, as well as some grounds that are limited in duration, such as previous unlawful presence. The waiver involves a discretionary decision to be made by the Attorney General. The Attorney General has delegated this decision making power to the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS, formerly the Immigration and Naturalization Service). Therefore, although the person seeking the nonimmigrant visa will often apply to the U.S. Consulate office closest to where they reside, the application will in most cases be forwarded to USCIS.

What are the Standards for a 212(d)(3) Waiver?

The standard for a non-immigrant visa waiver is significantly more lenient than the I-601 immigrant visa waiver standard. Based on the case precedent of Matter of Hranka, The Foreign Affair Manual (FAM) has reiterated the standard as follows:

a) The consular officer may recommend an INA 212(d)(3)(A) waiver for any non-immigrant whose case meets the criteria of N2 FAM 40.301 and whose presence would not be harmful to U.S. interests. Eligibility for a waiver is not conditioned on having some qualifying family relationship, or passage of some specified amount of time since the commission of the offense, or any other special statutory threshold requirement. The law does not require that such action be limited to humanitarian or other exceptional cases. While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose such a family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.

b) The consular officer should consider the following factors, among others, when deciding whether to recommend a waiver:

The recency and seriousness of the activity of condition causing the alien’s inadmissibility;
The reason for the proposed travel to the United States; and
The positive or negative effect, if any, of the planned travel on U.S. public interests.

Matter of Hranka involved a person who had been deported in 1975 for having engaged in prostitution. Following her deportation she had returned to her home and apparently had become a contributing member to society. When she applied for a tourist visa she was denied because they stated sufficient time had not passed to demonstrate that she been rehabilitated and that her reasons for wanting to visit the United States were not sufficiently compelling. The Board of Immigration Appeals (BIA) decided that the alien was eligible for such a visa because the alien had been rehabilitated, despite the short period of time that had passed, and that she need not show compelling reasons for wishing to visit the United States.

In the Matter of Hranka, the BIA balanced the relative seriousness of the grounds of inadmissibility against the minor risk of harm to society presented by admission of the alien because of her rehabilitation and her justifiable reasons for wanting to come to the United States.

In cases where a visitor knows in advance that he or she may be ineligible to enter the US, it is best to apply for the waiver contemporaneously with the filing of the visa application, instead of waiting until the visa application is denied.

A fee is generally not required when applying for the waiver, if the visa is being sought at a U.S. Consulate..

The other waivers available for persons seeking nonimmigrant visas cover fewer areas. One waiver is the I.N.A. section 212(d)(4) waiver for aliens not in possession of a passport, visa or border-crossing card, usually granted on the basis of an unforeseen emergency. Another waiver is the I.N.A. section 212(d)(1) waiver for government informers. A third waiver is the I.N.A. section 212(d)(3) waiver for victims of human trafficking or other victims of criminal activity. Waivers are also available under I.N.A. section 212(a)(9)(A)(iii) for aliens who have been previously removed or under I.N.A. section 212(a)(9)(C)(iii) for aliens who have entered without inspection. Both of these waivers require the passage of certain amounts of time since the alien last departed the United States, depending on the seriousness of the immigration law violation. Finally, a humanitarian waiver is available under I.N.A. section 212(d)(5) called discretionary parole. This provision allows for the temporary admission of aliens for “urgent humanitarian reasons or significant public benefit.”

How do I apply for a Non-immigrant Visa Waiver?

For applicants who already possess a valid visa, or is visa exempt (Canadians), the application is submitted to the Customs and Border Protection (CBP) at the port of entry or mailed to one of the designated pre-clearance CBP offices. Usually, non-immigrant visa waiver applicants are seeking a visa at the same time as applying for the waiver. In such cases you file the waiver with the particular visa application with the consulate (if you have intent to immigrate issues under 214(b), then provide as much evidence of ties to your home country as possible, addressing it as a separate issue). No set form is used, you just apply for the visa with, and address all inadmissibility issues as part of the application for the non-immigrant visa. If you get the recommendation for the waiver from the consulate (takes about a month, all at the consular officer’s discretion to make a recommendation), it’s sent to CBP ARO (Admissibility Review Office) in D.C. (they should make a decision in about 1-4 months). The waiver may be granted for a period of up to 5 years, although first time applicants generally do not get a 5 year waiver. A denial of the waiver can be appealed to the BIA under 8 CFR 1003.1(b)(6).

What is the Attorney’s Role in Preparing a Nonimmigrant Visa Waiver?

Although the standard to grant a 212(d)(3) waiver appears lenient, it is important to carefully document and support each criteria. An attorney will ensure that appropriate documentation is submitted, that the quality of the documentation is optimal, and that the eligibility for the waiver is presented in a properly organize manner. Consistency in the documentation is also important since waivers can otherwise be denied for a lack of credibility. Rehabilitative factors are also useful to support a waiver, and an attorney will be able to identify and present them as well.

Can Time Spent in the U.S. Count Toward Satisfying the 3 and 10 year Bars?

The 3 and 10 year bars are triggered exclusively by the alien s departure from the United States as confirmed by the Board of Immigration Appeals in Matter of Rodarte, 23 I&N Dec. 905, 909 (BIA 2006), the Administrative Appeals Office in In re Sallez Vaz (AAO, Feb. 22, 2005), the USCIS Adjudicators Field Manual, and all other relevant legal authority.

The plain statutory language of INA § 212(a)(9)(B)(i) imposes no requirement whatsoever that the period of inadmissibility be “served outside the United States.”

The USCIS Office of General Counsel specifically confirmed in written correspondence in 2006 and 2009 that the Section 212(a)(9)(B) period of inadmissibility begins to run with the initial departure from the U.S. that triggers the unlawful presence bar and continues to run even if the alien is subsequently paroled or admitted as a nonimmigrant under 212(d)(3).

But, according to the GC opinions, the period of inadmissibility will not run for an alien who returns to the U.S. unlawfully or remains in the United States unlawfully, thus essentially imposing a maintenance of status requirement that is not included in the statute.

In In re Sallez Vaz (AAO, Feb. 22, 2005), the alien departed the U.S. after 180+ days (but less than one year) of unlawful presence while his adjustment of status application was pending with USCIS,and returned soon thereafter with advance parole. His adjustment application was denied by USCIS and certified to the AAO, which issued a ruling more than 3 years after the departure that triggered the bar. The AAO held:

“The passage of time has created a new circumstance which renders the applicant free from any bar to inadmissibility based upon his unlawful presence…It is apparent, therefore, that the applicant’s period of inadmissibility has now expired and he is no longer subject to the bar.

Notably, unlike the USCIS General Counsel opinions, the AAO did not impose any other conditions (such as maintenance of status) for having the period of inadmissibility “run” during the alien’s presence in the U.S.

INA § 212(a)(9)(B) is in direct contrast with §212(a)(9)(A) and § 212(a)(9)(C), which each have“Exception” subsections that specifically state that the respective statutes do not apply to certain aliens who seek admission if, prior to the date of their reembarkation at a place outside the U.S. (or attempt to be admitted from a contiguous territory), the Attorney General has consented to their reapplying for admission.

Also, please see 8 C.F.R. 212.2(a), which specifically states that an alien who has been deported or removed is inadmissible unless he remains outside the U.S. for 5 consecutive years from the date of deportation or removal.

Basic rules of statutory construction dictate that Congress’ failure to include a similar requirement in 212(a)(9)(B)(i) was intentional. Accordingly, an alien who is readmitted to the U.S. as a nonimmigrant, but without first receiving 212(d)(3) permission, should still be able to satisfy the 3 or 10 year period from within the U.S. if he is otherwise eligible to adjust status.

§ Sec. 212.4 Applications for the exercise of discretion under section 212(d)(1) and 212(d)(3). (Heading revised 8/25/95; 60 FR 44260 )

(a) Applications under section 212(d)(3)(A) —

(1) General. District directors and officers in charge outside the United States in the districts of Bangkok, Thailand; Mexico City, Mexico; and Rome, Italy are authorized to act upon recommendations made by consular officers for the exercise of discretion under section 212(d)(3)(A) of the Act. The District Director, Washington, DC, has jurisdiction in such cases recommended to the Service at the seat-of-government level by the Department of State. When a consular officer or other State Department official recommends that the benefits of section 212(d)(3)(A) of the Act be accorded an alien, neither an application nor fee shall be required. The recommendation shall specify:

(i) The reasons for inadmissibility and each section of law under which the alien is inadmissible;

(ii) Each intended date of arrival;

(iii) The length of each proposed stay in the United States;

(iv) The purpose of each stay;

(v) The number of entries which the alien intends to make; and

(vi) The justification for exercising the authority contained in section 212(d)(3) of the Act.

If the alien desires to make multiple entries and the consular officer or other State Department official believes that the circumstances justify the issuance of a visa valid for multiple entries rather than for a specified number of entries, and recommends that the alien be accorded an authorization valid for multiple entries, the information required by items (ii) and (iii) shall be furnished only with respect to the initial entry. Item (ii) does not apply to a bona fide crewman. The consular officer or o ther State Department official shall be notified of the decision on his recommendation. No appeal by the alien shall lie from an adverse decision made by a Service officer on the recommendation of a consular officer or other State Department official.

(2) Authority of consular officers to approve section 212(d)(3)(A) recommendations pertaining to aliens inadmissible under section 212(a) (28)(C). In certain categories of visa cases defined by the Secretary of State, United States consular officers assigned to visa-issuing posts abroad may, on behalf of the Attorney General pursuant to section 212(d)(3)(A) of the Act, approve a recommendation by another consular officer that an alien be admitted temporarily despite visa ineligibility solely because the alien is of the class of aliens defined at section 212(a)(28)(C) of the Act, as a result of presumed or actual membership in, or affiliation with, an organization described in that section. Authorizations for temporary admission granted by consular officers shall be subject to the terms specified in Sec. 212.4(c) of this chapter. Any recommendation which is not clearly approvable shall, and any recommendation may, be presented to the appropriate official of the Immigration and Naturalization Service for a determination.

(b) Applications under section 212(d)(3)(B). An application for the exercise of discretion under section 212(d)(3)(B) of the Act shall be submitted on Form I – 192 to the district director in charge of the applicant’s intended port of entry prior to the applicant’s arrival in the United States. (For Department of State procedure when a visa is required, see 22 CFR 41.95 and paragraph (a) of this section.) If the application is made because the applicant may be inadmissible due to present or past membership in or affiliation with any Communist or other totalitarian party or organization, there shall be attached to the application a written statement of the history of the applicant’s membership or affiliation, including the period of such membership or affiliation, whether the applicant held any office in the organization, and whether his membership or affiliation was voluntary or involuntary. If the applicant alleges that his membership or affiliation was involuntary, the statement shall include the basis for tha t allegation. When the application is made because the applicant may be inadmissible due to disease, mental or physical defect, or disability of any kind, the application shall describe the disease, defect, or disability. If the purpose of seeking admission to the United States is for treatment, there shall be attached to the application statements in writing to establish that satisfactory treatment cannot be obtained outside the United States; that arrangements have been completed for treatment, and where and from whom treatment will be received; what financial arrangements for payment of expenses incurred in connection with the treatment have been made, and that a bond will be available if required. When the application is made because the applicant may be inadmissible due to the conviction of one or more crimes, the designation of each crime, the date and place of its commission and of the conviction thereof, and the sentence or other judgment of the court shall be stated in the application; in such a case the application shall be supplemented by the official record of each conviction, and any other documents relating to commutation of sentence, parole, probation, or pardon. If the application is made at the time of the applicant’s arrival to the district director at a port of entry, the applicant shall establish that he was not aware of the ground of inadmissibility and that it could not have been ascertained by the exercise of reasonable diligence, and he shall be in possession of a passport and visa, if r equired, or have been granted a waiver thereof. The applicant shall be notified of the decision and if the application is denied of the reasons therefor and of his right to appeal to the Board within 15 days after the mailing of the notification of decision in accordance with the Provisions of Part 3 of this chapter. If denied, the denial shall be without prejudice to renewal of the application in the course of proceedings before a special inquiry officer under sections 235 and 236 of the Act and this chapter. When an appeal may not be taken from a decision of a special inquiry officer excluding an alien but the alien has applied for the exercise of discretion under section 212(d)(3)(B) of the Act, the alien may appeal to the Board from a denial of such application in accordance with the provisions of Sec. 236.5 (b) of this chapter.

(1) General . Except as provided in paragraph (c)(2) of this section, each authorization under section 212(d)(3)(A) or (B) of the Act shall specify:

(i) Each section of law under which the alien is inadmissible;

(ii) The intended date of each arrival, unless the applicant is a bona fide crewman. However, if the authorization is valid for multiple entries rather than for a specified number of entries, this information shall be specified only with respect to the initial entry

(iii) The length of each stay authorized in the United States, which shall not exceed the period justified and shall be subject to limitations specified in 8 CFR part 214 . However, if the authorization is valid for multiple entries rather than for a specified number of entries, this information shall be specified only with respect to the initial entry;

(iv) The purpose of each stay;

(v) The number of entries for which the authorization is valid;

(vi) Subject to the conditions set forth in paragraph (c)(2) of this section, the dates on or between which each application for admission at POEs in the United States is valid;

(vii) The justification for exercising the authority contained in section 212(d)(3) of the Act; and

(viii) That the authorization is subject to revocation at any time.

(2) Conditions of admission .

(i) For aliens issued an authorization for temporary admission in accordance with this section, admissions pursuant to section 212(d)(3) of the Act shall be subject to the terms and conditions set forth in the authorization.

(ii) The period for which the alien’s admission is authorized pursuant to this section shall not exceed the period justified, or the limitations specified, in 8 CFR part 214 for each class of nonimmigrant, whichever is less.

(3) Validity .

(i) Authorizations granted to crew members may be valid for a maximum period of 2 years for application for admission at U.S. POEs and may be valid for multiple entries.

(ii) An authorization issued in conjunction with an application for a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, issued by the DOS shall be valid for a period not to exceed the validity of the biometric BCC for applications for admission at U.S. POEs and shall be valid for multiple entries.

(iii) A multiple entry authorization for a person other than a crew member or applicant for a Form DSP-150 may be made valid for a maximum period of 5 years for applications for admission at U.S. POEs.

(iv) An authorization that was previously issued in conjunction with Form I-185, Nonresident Alien Canadian Border Crossing Card, and that is noted on the card may remain valid. Although the waiver may remain valid, the non-biometric border crossing card portion of this document is not valid after that date. This waiver authorization shall cease if otherwise revoked or voided.

(v) A single-entry authorization to apply for admission at a U.S. POE shall not be valid for more than 6 months from the date the authorization is issued.

(vi) An authorization may not be revalidated. Upon expiration of the authorization, a new application and authorization are required.

(d) Admission of groups inadmissible under section 212(a)(28) for attendance at international conferences. When the Secretary of State recommends that a group of nonimmigrant aliens and their accompanying family members be admitted to attend international conferences notwithstanding their inadmissibility under section 212(a)(28) of the Act, the Deputy Commissioner, may enter an order pursuant to the authority contained in section 212(d)(3)(A) of the Act specifying the terms and conditions of their admission and stay.

(e) Inadmissibility under section 212(a)(1)(A)(iii) . Pursuant to the authority contained in section 212(d)(3) of the Act, the temporary admission of a nonimmigrant visitor is authorized notwithstanding inadmissibility under section 212(a)(1)(A)(iii)(I) or (II) of the Act due to a mental disorder and associated threatening or harmful behavior, if such alien is accompanied by a member of his/her family, or a guardian who will be responsible for him/her during the period of admission authorized. (Amended effective 10/6/08; 73 FR 58023 )

(f) Inadmissibility under section 212(a)(1) for aliens inadmissible due to HIV. (Paragraph (f) added effective 10/6/08; 73 FR 58023 ; previous paragraph (f) was redesignated as paragraph(g))
(1) General. Pursuant to the authority in section 212(d)(3)(A)(i) of the Act, any alien who is inadmissible under section 212(a)(1)(A)(i) of the Act due to infection with the etiologic agent for acquired immune deficiency syndrome (HIV infection) may be issued a B-1 (business visitor) or B-2 (visitor for pleasure) nonimmigrant visa by a consular officer or the Secretary of State, and be authorized for temporary admission into the United States for a period not to exceed 30 days, subject to authorization of an additional period or periods under paragraph (f)(5) of this section, provided that the authorization is granted in accordance with par agraphs (f)(2) through (f)(7) of this section. Application under this paragraph (f) may not be combined with any other waiver of inadmissibility.
(2) Conditions. An alien who is HIV-positive who applies for a nonimmigrant visa before a consular officer may be issued a B-1 (business visitor) or B-2 (visitor for pleasure) nonimmigrant visa and admitted to the United States for a period not to exceed 30 days, provided that the applicant establishes that:
(i) The applicant has tested positive for HIV;
(ii) The applicant is not currently exhibiting symptoms indicative of an active, contagious infection associated with acquired immune deficiency syndrome;
(iii) The applicant is aware of, has been counseled on, and understands the nature, severity, and the communicability of his or her medical condition;
(iv) The applicant’s admission poses a minimal risk of danger to the public health in the United States and poses a minimal risk of danger of transmission of the infection to any other person in the United States;
(v) The applicant will have in his or her possession, or will have access to, as medically appropriate, an adequate supply of antiretroviral drugs for the anticipated stay in the United States and possesses sufficient assets, such as insurance that is accepted in the United States, to cover any medical care that the applicant may require in the event of illness at any time while in the United States;
(vi) The applicant’s admission will not create any cost to the United States, or a state or local government, or any agency thereof, without the prior written consent of the agency;
(vii) The applicant is seeking admission solely for activities that are consistent with the B-1 (business visitor) or B-2 (visitor for pleasure) nonimmigrant classification;
(viii) The applicant is aware that no single admission to the United States will be for a period that exceeds 30 days (subject to paragraph (f)(5) of this section);
(ix) The applicant is otherwise admissible to the United States and no other ground of inadmissibility applies;
(x) The applicant is aware that he or she cannot be admitted under section 217 of the Act (Visa Waiver Program);
(xi) The applicant is aware that any failure to comply with any condition of admission set forth under this paragraph (f) will thereafter make him or her ineligible for authorization under this paragraph; and
(xii) The applicant, for the purpose of admission pursuant to authorization under this paragraph (f), waives any opportunity to apply for an extension of nonimmigrant stay (except as provided in paragraph (f)(5) of this section), a change of nonimmigrant status, or adjustment of status to that of permanent resident.
(A) Nothing in this paragraph (f) precludes an alien admitted under this paragraph (f) from applying for asylum pursuant to section 208 of the Act.
(B) Any alien admitted under this paragraph (f) who applies for adjustment of status under section 209 of the Act after being granted asylum must establish his or her eligibility to adjust status under all applicable provisions of the Act and 8 CFR part 209 . Any applicable ground of inadmissibility must be waived by approval of an appropriate waiver(s) under section 209(c) of the Act and 8 CFR 209.2(b) .
(C) Nothing within this paragraph (f) constitutes a waiver of inadmissibility under section 209 of the Act or 8 CFR part 209 .
(3) Nonimmigrant visa. A nonimmigrant visa issued to the applicant for purposes of temporary admission under section 212(d)(3)(A)(i) of the Act and this paragraph (f) may not be valid for more than 12 months or for more than two applications for admission during the 12-month period. The authorized period of stay will be for 30 calendar days calculated from the initial admission under this visa.
(4) Application at U.S. port. If otherwise admissible, a holder of the nonimmigrant visa issued under section 212(d)(3)(A)(i) of the Act and this paragraph (f) is authorized to apply for admission at a United States port of entry at any time during the period of validity of the visa in only the B-1 (business visitor) or B-2 (visitor for pleasure) nonimmigrant categories.
(5) Admission limited; satisfactory departure. Notwithstanding any other provision of this chapter, no single period of admission under section 212(d)(3)(A)(i) of the Act and this paragraph (f) may be authorized for more than 30 days; if an emergency prevents a nonimmigrant alien admitted under this paragraph (f) from departing from the United States within his or her period of authorized stay, the director (or other appropriate official) having jurisdiction over the place of the alien’s temporary stay may, in his or her discretion, grant an additional period (or periods) of satisfactory departure, each such period not to exceed 30 days. If departure is accomplis hed during that period, the alien is to be regarded as having satisfactorily accomplished the visit without overstaying the allotted time.
(6) Failure to comply. No authorization under section 212(d)(3)(A)(i) of the Act and this paragraph (f) may be provided to any alien who has previously failed to comply with any condition of an admission authorized under this paragraph.
(7) Additional limitations. The Secretary of Homeland Security or the Secretary of State may require additional evidence or impose additional conditions on granting authorization for temporary admissions under this paragraph (f) as international (or other relevant) conditions may indicate.

(8) Option for case-by-case determination. If the applicant does not meet the criteria under this paragraph (f), or does not wish to agree to the conditions for the streamlined 30-day visa under this paragraph (f), the applicant may elect to utilize the process described in either

(g) Action upon alien’s arrival. Upon admitting an alien who has been granted the benefits of section 212(d)(3)(A) of the Act, the immigration officer shall be guided by the conditions and limitations imposed in the authorization and noted by the consular officer in the alien’s passport. When admitting any alien who has been granted the benefits of section 212(d)(3)(B) of the Act, the Immigration officer shall note on the arrival-departure record, Form I – 94, or crewman’s landing permit, Form I – 95, issued to the alien, the conditions and limitations imposed in the authorization. (Redesignated as paragraph (g), previously paragraph (f) effective 10/6/08; 73 FR 58023 )

(h) Authorizations issued to crewmen without limitation as to period of validity. When a crewman who has a valid section 212(d)(3) authorization without any time limitation comes to the attention of the Service, his travel document shall be endorsed to show that the validity of his section 212(d)(3) authorization expires as of a date six months thereafter, and any previously-issued Form I – 184 shall be lifted and Form I – 95 shall be issued in its place and similarly endorsed. (Redesignated as paragraph (h), previously paragraph (g) effective 10/6/08; 73 FR 58023 )

(i)Revocation. The Deputy Commissioner or the district director may at any time revoke a waiver previously authorized under section 212(d)(3) of the Act and shall notify the nonimmigrant in writing to that effect. (Redesignated as paragraph (i), previously paragraph (h) effective 10/6/08; 73 FR 58023 )

(j) Alien witnesses and informants.–(1) Waivers under section 212(d)(1) of the Act. Upon the application of a federal or state law enforcement authority (“LEA”), which shall include a state or federal court or United States Attorney’s Office, pursuant to the filing of Form I-854, Inter-Agency Alien Witness and Informant Record, for nonimmigrant classification described in section 101(a)(15)(S) of the Act, the Commissioner shall determine whether a ground of exclusion exists with respect to the alien for whom classification is sought and, if so, whether it is in the national interest to exercise the discretion to waive the ground of excludability, other than section 212(a)(3)(E) of the Act. The Commissioner may at any time revoke a waiver previously authorized under section 212(d)(1) of the Act. In the event the Commissioner decides to revoke a previously authorized waiver for an S nonimmigrant, the Assistant Attorney General, Criminal Division, and the relevant LEA shall be notified in writing to that effect. The Assistant Attorney General, Criminal Division, shall concur in or object to the decision. Unless the Assistant Attorney General, Criminal Division, objects within 7 days, he or she shall be deemed to have concurred in the decision. In the event of an objection by the Assis tant Attorney General, Criminal Division, the matter will be expeditiously referred to the Deputy Attorney General for a final resolution. In no circumstances shall the alien or the relevant LEA have a right of appeal from any decision to revoke. (Redesignated as paragraph (j), previously paragraph (i) effective 10/6/08; 73 FR 58023 )

(2) Grounds of removal. Nothing shall prohibit the Service from removing from the United States an alien classified pursuant to section 101(a)(15)(S) of the Act for conduct committed after the alien has been admitted to the United States as an S nonimmigrant, or after the alien’s change to S classification, or for conduct or a condition undisclosed to the Attorney General prior to the alien’s admission in, or change to, S classification, unless such conduct or condition is waived prior to admission and classification. In the event the Commissioner decides to remove an S nonimmigrant from the United States, the Assistant Attorney General, Criminal Divis ion, and the relevant LEA shall be notified in writing to that effect. The Assistant Attorney General, Criminal Division, shall concur in or object to that decision. Unless the Assistant Attorney General, Criminal Division, objects within 7 days, he or she shall be deemed to have concurred in the decision. In the event of an objection by the Assistant Attorney General, Criminal Division, the matter will be expeditiously referred to the Deputy Attorney General for a final resolution. In no circumstances s hall the alien or the relevant LEA have a right of appeal from any decision to remove. (Paragraph (i) added 8/25/95; 60 FR 44260 ) (Corrected 10/5/95; 60 FR 52248 )
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In some cases, however, a non-immigrant visa may provide a way for a person to return to the United States following removal. If the applicant is able to meet the general requirements for such a visa, a waiver of inadmissibility may be sought under Section 212(d)(3) of the Immigration and Nationality Act (“INA”). Non-immigrant waivers are available for a broad range of inadmissibility grounds. Under certain circumstances, even an applicant with a “lifetime bar” (for example, a former lawful permanent resident deported due to an aggravated felony conviction) may obtain such a waiver.

Non-Immigrant Waivers: For a non-citizen who has been removed from the United States and who is not a citizen of Canada, returning to the United States on a non-immigrant visa is a three-step process.

Step 1: Meet Basic Visa Requirements

Before the consulate will consider any inadmissibility waiver issues, an applicant must establish that he or she is otherwise eligible for the particular visa being sought. Some non-immigrant visas, such as student or employment visas, require applicants to meet a long list of requirements. Others, such as an H-1B visa, require a prospective employer to file a petition which must be approved before an applicant can apply for the visa. Most non-immigrant visas also require “non-immigrant intent,” which can be difficult for a deportee to establish (see below). General information about visas is available at http://travel.state.gov/visa/visa_1750.html, and statistics about visa issuance rates can be found at http://travel.state.gov/visa/about/report/report_1476.html. We strongly advise practitioners to think hard about these eligibility issues in advance, before turning attention to the waivers discussed below. Cases such as these invite close scrutiny at all levels.

In most cases, an applicant will appear at the consulate for a scheduled visa interview after electronically completing a visa application. At the interview, the applicant will have to establish eligibility for the particular visa. The statutory definitions of certain common non-immigrant visa categories, such as B (visitors) and F (students) require proof of “a residence in a foreign country which [the applicant] has no intention of abandoning.” In addition, INA 214(b) specifies that applicants for most types of non-immigrant visas are presumed to have the intention to immigrate to the United States. Applicants may seek to overcome this presumption by showing that they have strong ties to the country in which they are currently residing (for example: steady employment, family ties, property ownership). They must have a credible narrative that demonstrates a plan to return after a short visit to the U.S., consistent with the non-immigrant visa they seek.

A person who has been removed from the United States will likely find it difficult to overcome the presumption of immigrant intent. Former lawful permanent residents often have extensive ties to the United States, including close family members, and will have to persuade the consular officer that they have equally strong ties to the country of residence. Indeed, the closer a person’s ties are, and the greater their equitable case for a waiver might be, the harder it may be to overcome the presumption of immigrant intent. Those who previously entered the United States without inspection or overstayed a visa will also have to persuade the consular officer that they will abide by the terms of their visa.

Applicants/attorneys should consult the website of the particular consulate for guidance on local procedures. A guide to consulate websites can be found at http://www.usembassy.gov/. 5 See, e.g., INA § 101(a)(15)(F). Treaty-based non-immigrant visas – E, TN, and H-1B1 – require only that the applicant show an intent to leave the U.S.; they do not require proof of a foreign residence. See below for a discussion of “dual intent” visas.

At the interview, the consular officer will make an on-the-spot assessment of whether the applicant has established non-immigrant intent – generally after speaking with the applicant for just a few minutes. If the officer denies the application on these grounds, the request for a waiver of inadmissibility will not even be considered. It is therefore extremely important for the applicant to provide compelling evidence of non-immigrant intent at the interview. Applicants should bring to the interview any documents showing ties to the country of residence, including proof of employment; recent bank statements; documents showing ownership of property; birth certificates, marriage certificates, school records, and other documents showing family ties in the country of residence. Depending on timing, a specific U.S. itinerary and a round-trip ticket may be helpful, too.

Consular officers may or may not be willing to look at supporting documents relating to non-immigrant intent. It is therefore very important for the applicant to be prepared to make a credible and persuasive statement at the interview regarding his or her intention to return to the country of residence.

All visa denials are reviewed by a consular supervisor, and an applicant may submit additional evidence to overcome a denial. Attorneys may seek an advisory opinion on any legal issue by sending a request to Legalnet@state.gov.

Practice Tip: Dual Intent Visas

H-1B visas (skilled workers) and L visas (intra-company transfers) are “dual intent” visas and are exempt from the requirement that an applicant show non-immigrant intent.7 These visas are difficult to obtain and most applicants will not be eligible for them. However, for someone who is ineligible for an immigrant visa and cannot establish non-immigrant intent due to a large number of immediate family members or other strong ties to the United States, a dual-intent visa may worth serious consideration.

Practice Tip: Departure Bonds

Federal regulations permit a consular officer to require the posting of a bond to ensure that an applicant for a non-immigrant visa complies with the terms of the visa.8 However, it is current DOS policy to employ such bonds rarely, if ever.9 Thus, while an applicant may offer to post such a bond, it is unlikely to have any influence on the outcome of the application.

INA 214(b); 22 C.F.R. § 41.11. K and V visas are not subject to the presumption of immigrant intent. However, such visas require an applicant to meet the standard for an immigrant visa waiver of inadmissibility, rather than the waiver standard discussed in this Practice Advisory. 8 22 C.F.R. § 41.11(b)(2). 9 9 FAM 41.11 PN 1.1.

Step 2: Obtain Consular Recommendation for Waiver

Once an applicant has met the requirements for a particular visa, the consular officer will consider the applicant’s admissibility under INA § 212. For those who have been removed from the United States, the most common grounds of inadmissibility include:

a previous removal order (§ 212(a)(9)(A))
criminal grounds (§ 212(a)(2))
fraud or misrepresentation (§212(a)(6))
previous unlawful presence in the United States (§212(a)(9)(B))

Applicants should bring to the visa interview all documents relating to potential grounds of inadmissibility, including removal orders and other documents relating to removal proceedings,10 and certified dispositions of all criminal convictions from all jurisdictions.

Virtually all grounds of inadmissibility (with the exception of those related to terrorism and national security) can be waived for the purposes of a non-immigrant visa. Section 212(d)(3) of the INA permits the Department of Homeland Security to grant a nonimmigrant visa to an applicant who has been recommended for temporary admission by the Secretary of State or by a consular officer. The factors to be considered, as established in the 1978 Board of Immigration Appeals case, Matter of Hranka, are 1) the risk of harm to society if the applicant is admitted; 2) the seriousness of the applicant’s prior immigration law, or criminal law, violations; and 3) the nature of the applicant’s reasons for wishing to enter the United States. An applicant does not need to show a particularly compelling reason for visiting the United States. An ordinary reason (such as visiting a family member or conducting business) is sufficient.

The Foreign Affairs Manual (“FAM”) instructs consular officers to recommend such waivers liberally:

You should not hesitate to exercise this authority [to recommend a waiver] when the alien is entitled to seek waiver relief and is otherwise eligible for a visa, and when the granting of a waiver is not contrary to U.S. interests. The proper use of this authority should serve to further our immigration policy supporting freedom of travel, exchange of ideas, and humanitarian considerations, while at the same time ensuring, through appropriate screening, that our national welfare and security are being safeguarded.

These documents may be requested from the Executive Office for Immigration Review (“EOIR”) under the Freedom of Information Act (“FOIA”). For further information, see http://www.usdoj.gov/eoir/efoia/mainfoia.html. 11 Although the statute says that the authority resides with the Attorney General, this authority has been transferred to the Department of Homeland Security pursuant to the Homeland Security Act of 2002 (HSA), Pub. L. No. 107296, 116 Stat. 213512 Matter of Hranka, 16 I&N Dec. 491 (BIA 1978). 9 FAM § 40.301, N3 (emphasis added).

The FAM also makes clear that an applicant need not show extraordinary circumstances:

Eligibility for such a waiver is not conditioned on having some qualifying family relationship, or the passage of some specified amount of time since the commission of the offense, or any other special statutory requirement. The law does not require that such waiver action be limited to exceptional, humanitarian or national interest cases. Thus, 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 available abroad), business conferences, tourism, etc.”

However, it should be noted that waivers are highly discretionary; therefore, more compelling reasons for a visit may be powerful factors in the applicant’s favor.

There is no special application form for the waiver and no application fee. It is strongly recommended, however, that the applicant bring to the interview a concise (1-2 page) cover letter requesting the waiver and highlighting the facts that support the favorable exercise of discretion, along with originals and photocopies of all relevant supporting documents. Applicants should also bring letters of support from members of the community that attest to the applicant’s ties to the country of residence and, for applicants with prior criminal convictions, to the person’s rehabilitation and good character.

As noted above, consular officers may or may not look at supporting documents. It is therefore extremely important for the applicant to be prepared to explain the circumstances that led to the prior removal or to any other grounds of inadmissibility, and to discuss life changes (such as overcoming a drug addiction, establishing a new career, starting a family) that will persuade the consular officer that such circumstances will not occur again.

Practice Tip: Know Your Consulate

Each consulate has its own way of doing things. If you do not have prior experience with a particular consulate, it is highly recommended that you consult the Visa Processing Guide published by the American Immigration Lawyers Association (AILA). AILA members should also take advantage of the AILA mentoring system and contact AILA attorneys who have identified themselves as having experience with the consulate in question. It is also sometimes possible to contact a consulate directly and speak with a consular office there in advance about any special requirements or procedures.

Practice Tip: Cover letters

Generally speaking, a cover letter for a non-immigrant visa waiver application in cases requiring proof of “non-immigrant intent” should have a very different emphasis from a cover letter submitted with a waiver application for an immigrant visa. In particular, such letters should not emphasize chronic hardship experienced by the applicant’s family members in the United States, since the need for the applicant’s presence in the United States may lead the consulate to question whether the applicant has non-immigrant intent. Rather, the emphasis should be on the evidence that the applicant will not be a harm to the United States; on the applicant’s rehabilitation (if the applicant has a criminal record); and on the applicant’s ties to the country of current residence. One exception to this rule is that compelling, temporary, time-specific needs relating to family members (for example, an applicant’s desire to see an elderly or seriously ill family member who cannot travel) are appropriate to include. 9 FAM § 40.301, N3.

The consular officer will inform an applicant at the time of the interview whether the consulate will recommend a waiver. If so, the consulate will transmit the waiver application to the Department of Homeland Security. The consular officer may recommend a waiver for a maximum period of one year, with multiple entries.16 For a first-time applicant, however, it is likely that the consulate will recommend a single-entry of shorter duration.

If the consular officer declines to recommend a waiver, the applicant has the right to request that the consulate forward the waiver request to the Department of State (“DOS”) for review. DOS has independent authority to submit waiver recommendations to DHS. A denial by DOS is not administratively reviewable and judicial review is also extremely unlikely to be successful.

Step 3: Adjudication by the Department of Homeland Security

If the consular officer recommends a waiver, the consulate will transmit the waiver request to the DHS Admissibility Review Office (“ARO”) in Virginia. This process is done electronically, via the Admissibility Review Information Service, and therefore an applicant’s supporting documents and cover letter are not forwarded to DHS.

The ARO adjudication will be based on the Matter of Hranka factors: 1) the risk of harm to society if the applicant is admitted; 2) the seriousness of the applicant’s prior immigration law, or criminal law, violations; and 3) the nature of the applicant’s reasons for wishing to enter the United States.

The ARO reports that in the vast majority of cases, processing time for waiver applications that have received consular recommendations is less than thirty days. However, applicants with complex inadmissibility issues may encounter a 2-4 month adjudication period. The consulate will inform the applicant of the ARO’s decision. There is no means to expedite a waiver request. Status inquiries may be sent to the ARO at attorneyinquiry.waiver.aro@dhs.gov.

Where an applicant seeks a waiver for more than one year, the case must be referred to the Department of State for a recommendation prior to adjudication by the ARO, except in cases in which the applicant has already been granted at least two year-long waivers and the case meets other specifications. See 9 FAM 40.301 PN 6.2-3. 17 9 FAM 40.301 PN 1(b). 18 9 FAM 40.301 N 6.2. 19 9 FAM 40.301 PN1(a). NB: The information regarding the application process that appears in 8 C.F.R. § 212.4 is out of date and reflects an earlier era when applications were forwarded to regional Department of Justice offices overseas. 20 Matter of Hranka, 16 I&N Dec. 491 (BIA 1978). 21 Information reported by Michael D. Olszak, Director, Admissibility Review Office and John Klow, Program Manager/Chief Lead, Admissibility Review Office, at the American Immigration Lawyers Association Fall 2008 Conference, Savannah Georgia, Sept. 26. 2008.

The ARO reports an approval rate of 92% of cases in which consular recommendations have been received. In reality, the approval rate is probably somewhat higher, since the “nonapproval” category includes cases in which the ARO determines that the person is not actually inadmissible and therefore does not need a waiver.

A denial by the ARO may be appealed to the Board of Immigration Appeals.

Practice Tip: Subsequent Entries

For those granted a single entry visa, a subsequent visit to the United States will require an entirely new visa application and waiver request. Once a waiver has been recommended, however, it is likely that subsequent requests will be approved, if circumstances have not changed and the applicant has complied with the terms of the previous visa. The consulate is instructed by the Foreign Affairs Manual to recommend a waiver “unless there is new derogatory information, a material change in the purpose of their trip, or some other material change in circumstances relevant to the factors to be considered under 212(d)(3)(A).” In addition, adjudication by the ARO of subsequent applications should be relatively fast. FBI name checks obtained by the ARO are maintained indefinitely; thus, subsequent waiver requests will be processed by the ARO without the need to wait for a response from the FBI if there is evidence of a completed name check in the record.

Practice Tip: Changing from One Visa Status to Another

Nonimmigrant waivers are specific to the visa category for which they were issued and therefore cannot be transferred from one nonimmigrant category to another. Someone who changes visa status from within the U.S. may remain and work in the U.S. as authorized by the change of status since the waiver relates to admissibility, but will not be able reenter the U.S. under the original waiver following a departure.

III. Non-Immigrant Waivers for Canadians

In most cases, Canadian citizens do not need visas for temporary visits to the United States. Their waiver cases therefore fall under INA § 212(d)(3)(A)(ii) rather than § 212(d)(3)(A)(i).

Although the substantive standard for obtaining a waiver of inadmissibility is the same for Canadian citizens, the application process is quite different.

Waiver applicants by Canadian citizens may be filed in person at ports of entry (“POEs”) along the U.S.-Canadian border; at “preclearance centers” in a number of Canadian cities; and in some cases by mail. A complete list of locations, along with detailed information about application procedures, can be found on the Customs and Border Patrol website at http://www.cbp.gov/xp/cgov/travel/id_visa/indamiss_can_info.xml.

Application requirements may vary among the different locations, so applicants are advised to check local requirements. One example of required documents (from the Vermont POE) is as follows: Form I-192 (Application for Advance Permission to Enter as a Non-Immigrant) along with filing fee of $545; Form G-325 (Biographic Information); fingerprint cards from the Royal Canadian Mounted Police; certified copy of criminal record; proof of Canadian citizenship; two letters from reputable members of the community attesting to the applicant’s good character; a letter from the applicant’s current employer indicating occupation and length of employment; a letter from the applicant explaining the circumstances leading to the inadmissibility; and, for those seeking admission for medical reasons, a description of the treatment sought, financial arrangements for the treatment, and why the treatment cannot be obtained outside the U.S. Forms I-192 and G-325 may be downloaded from the USCIS website or obtained from the place where the application will be submitted.

Regardless of where an application is filed, it will be adjudicated by the Admissibility Review Office. As of this writing, waiver applications filed by Canadian citizens are taking 4-6 months to adjudicate. Status inquiries may be sent to the ARO at attorneyinquiry.waiver.aro@dhs.gov.

This email address is for questions regarding the status of applications on file with the U.S. Customs and Border Protection (CBP), Admissibility Review Office (ARO). The ARO is responsible for the following applications: Form I-192, Application for Advance Permission to Enter as Nonimmigrant, Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, and Form I-824, Application for Action on an Approved Application or Petition. Please note the ARO will respond to inquiries on the latter form only in those instances where the action is related to obtaining a duplicate approval notice for a Form I-192 or I-212.

Attorneys or other recognized representative must have a signed Form G-28 on file.
You will receive a follow-up e-mail to your inquiry if your application has been on file with CBP for a minimum of 120-days.

A denial by the ARO may be appealed to the Board of Immigration Appeals. In addition, a person who is denied a waiver at a port of entry may seek to renew the waiver request in removal proceedings before an Immigration Judge.

Practice Tip: Form I-212

Those who are inadmissible based on a prior removal order (INA § 212(a)(9)(A)) and seek to return to the United States on an immigrant visa must file Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. This application should not be necessary for someone who seeks to enter as a non-immigrant, because a waiver under § 212(d)(3) will overcome §212(a)(9)(A) as well as most other grounds of inadmissibility contained in § 212(a). There are reports that some Canadians seeking waivers under § 212(d)(3)(A)(ii) have been required to submit Form I-212 instead of or in addition to Form I-192.
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Dealing with the 3, 10 and “Permanent” Bars

Overview of the 3, 10 and Permanent Bars

INA §212(a)(9)(B)(i)(I) provides that a noncitizen is inadmissible if he or she was unlawfully present in the United States for a period of more than 180 days but less than one year, voluntarily departed the United States (whether or not pursuant to a grant of voluntary departure) prior to the commencement of proceedings under §235(b)(1) or §240 and again seeks admission within three years of the date of departure or removal.
INA §212(a)(9)(B)(i)(II) provides that a noncitizen is inadmissible if he or she was unlawfully present in the United States for a period of one year or more, departed the United States and again seeks admission within ten years of the date of departure or removal.
INA §212(a)(9)(C)(i)(I) provides that any alien who has been unlawfully present in the United States for an aggregate period of more than one year, and who enters or attempts to reenter the United States without being admitted, is inadmissible. The referenced period of unlawful presence is the aggregate of all periods of unlawful presence prior to the unlawful reentry or attempted reentry.
Under INA § 212(a)(9)(B)(ii), an alien is considered to be unlawfully present if he or she is present in the United States either after the period of stay authorized by the Attorney General has expired or without admission or parole. Aliens who enter the United States without admission or parole accrue unlawful presence as of the date of unlawful entry into the United States or April 1, 1997, whichever is later.

Legacy INS adopted the interpretation under which unlawful presence for an alien admitted as a nonimmigrant begins to accrue as of the date the alien’s nonimmigrant stay expires, as noted on Form I-94, Arrival/Departure Record. Under this interpretation, unlawful presence with respect to a nonimmigrant generally includes only periods of stay in the United States beyond the date noted on Form I-94.

If USCIS concludes prior to the expiration date that the alien violated his or her nonimmigrant status, unlawful presence will begin to accrue as of the date of the USCIS decision denying the requested immigration benefit, whether or not any form of review is sought. USCIS may find an alien to have violated his or her status, for example, while adjudicating an application for extension of nonimmigrant stay or reinstatement to bona fide nonimmigrant status, a change of nonimmigrant classification, or an application for adjustment of status.

A nonimmigrant issued a date-certain Form I 94, who is placed in removal proceedings before his or her authorized stay expires, will begin to accrue unlawful presence either when the date noted on Form I-94 has been reached, or when the immigration judge orders the alien to be removed, whichever date is earlier. When the Service places a nonimmigrant in removal proceedings, and the alien successfully contests the charges brought by the Service in a proceeding, the alien will be deemed not to have accrued any periods of unlawful presence in the United States during that proceeding.

For nonimmigrants admitted for duration of status (D/S), unlawful presence will begin to accrue only if the Service finds a status violation while adjudicating an application for another benefit, or if an immigration judge finds the alien in violation of status in removal proceedings. When the immigration judge finds that the alien violated his or her nonimmigrant status, unlawful presence begins to accrue as of the date of the judge’s order, whether or not the judge’s decision is appealed.

How The Three-Year Bar Is Triggered

The three-year bar only applies to an alien who is unlawfully present for more than 180 days but less than one year and who voluntarily departs the United States prior to the commencement of removal proceedings.
Thus, if the alien were present for more than 180 days but less than one year, and if he or she voluntarily departed the United States after removal proceedings were initiated, then the three-year bar does not apply.

How the Ten-Year Bar is Triggered

The ten-year bar is triggered by any departure from the U.S. An alien who has been unlawfully present in the U.S. for more than one year consecutively and again seeks admission is barred for ten years from the date of departure or removal from the U.S.
An alien who has been unlawfully present for an aggregate period of more than one year or who has been ordered removed, deported or excluded and who enters or attempts to reenter without inspection is inadmissible. A discretionary waiver is available but only after the alien has been outside of the U.S. for ten years or more. DHS may waive this ground for a battered spouse/child if there is a connection between the battering and the departure or reentry/attempted reentry.

Effect of Recent 9th Circuit Decision Carrillo de Palacios, 651 F.3d 1158 (9th Cir. 2011)

• Alien who accrued more than one year of unlawful presence prior to April 1, 1997* and who departed prior to April 1, 1997 but reentered EWI after April 1, 1997 is inadmissible under 212(a)(9)(C)(i)(I).

* April 1, 1997 is effective date of 212(a)(9)(C)(i)(I)

• “The statutory text is straightforward: an alien is inadmissible if she has been unlawfully present in the United States for an aggregate period of more than 1 year and subsequently enters the United States without being admitted.”

Does 245(i) Help?

No Unlawful Presence Bar if alien doesn’t depart.

245(i) Does not Waive Inadmissibility except INS General Counsel determined that persons who entered EWI are eligible to adjust under 245(i) notwithstanding 212(a)(6)(A).

But what if Alien Departed after UP and Reentered EWI? 245(i) v. 212(a)(9)(C)(i)(I)

2005: In Padilla-Caldera v. Gonzales, 426 F.3d 1294 amended on reh’g by 453 F.3d 1237 (10th Cir. 2006), the court considered the canons of statutory construction to reach the conclusion that 245(i) trumps 212(a)(9)(C)(i)(I).
2006: Acosta v. Gonzales, 439 F.3d 1158(9th Cir. 2006), the court held that 245(i) trumps 212(a)(9)(C)(i)(I)
2007: Matter of Briones, 24 I&N Dec. 355 (BIA 2007), BIA holds that an alien who was inadmissible under INA§ 212(a)(9)(C)(i)(I) is ineligible for adjustment of status under §245(i).
2010: Matter of Diaz, 25 I&N Dec. 188 (BIA 2010): BIA refused to follow Acosta in the Ninth Circuit because the Acosta decision predated Matter of Briones.
2011: Padilla-Caldera v. Holder, 673 F.3d 1140 (10th Cir. 2011). Tenth holds that that the BIA’s determination in Matter of Briones, was a reasonable interpretation of ambiguous statutory provisions to which the court owed Chevron deference.

Can Time Spent in the U.S. Count Toward Satisfying the 3 and 10 year Bars?

The 3 and 10 year bars are triggered exclusively by the alien s departure from the United States as confirmed by the Board of Immigration Appeals in Matter of Rodarte, 23 I&N Dec. 905, 909 (BIA 2006), the Administrative Appeals Office in In re Sallez-Vaz (AAO, Feb. 22, 2005), the USCIS Adjudicators Field Manual, and all other relevant legal authority.

The plain statutory language of INA § 212(a)(9)(B)(i) imposes no requirement whatsoever that the period of inadmissibility be “served” outside the United States.

In In re Sallez-Vaz (AAO, Feb. 22, 2005), the alien departed the U.S. after 180+ days (but less than one year) of unlawful presence while his adjustment of status application was pending with USCIS,and returned soon thereafter with advance parole. His adjustment application was denied by USCIS and certified to the AAO, which issued a ruling more than 3 years after the departure that triggered the bar. The AAO held:

INA § 212(a)(9)(B) is in direct contrast with §212(a)(9)(A) and § 212(a)(9)(C), which each have “Exception” subsections that specifically state that the respective statutes do not apply to certain aliens who seek admission if, prior to the date of their re-embarkation at a place outside the U.S. (or attempt to be admitted from a contiguous territory), the Attorney General has consented to their reapplying for admission.

How Permanent is the “Permanent” Bar?

212(a)(9)(C)(ii) includes immediate waiver exception for a person with approved “VAWA” petition where there is “a connection” between the alien having been battered or subjected to extreme cruelty and his/her removal, departure from the U.S., reentry/reentries to U.S., or attempted reentry.
212(a)(9)(C)(ii) also includes a waiver exception for persons seeking admission more than 10 years after the date of last departure from U.S. if, prior to re-embarkation from outside U.S., the Attorney General has consented to the alien’s reapplying for admission.
Persons subject to 212(a)(9)(C)(i)(I) (EWI or attempted EWI after more than one year of unlawful presence) may still apply for 212(d)(3) waiver in conjunction with application for nonimmigrant visa, but should be mindful of likelihood of strict application of 214(b).
Persons subject to the permanent bar may also apply for 212(d)(3)(5) humanitarian parole, but should be mindful that such applications are normally approved only in urgent humanitarian cases and/or those involving significant public interest. Also, DHS is likely to limit the length of the parole to the period required to address the situation at hand.

Non-Immigrant Visa Waivers

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