Waiver

What Is the 212(d)3 Waiver?

A 212(d)3 waiver – sometimes called a Hranka waiver – is a request to waiver a ground of inadmissibility for a temporary visa. While the I-601 or I-601A waiver waives inadmissibility for immigrant visas / green cards, the 212(d)3 waiver applies to non-immigrant visas.

What grounds of inadmissibility can be waived?

The 212(d)3 waiver can pardon almost any ground of inadmissibility except security related grounds. The 212(d)3 waiver cannot be use for very serious bars such as security-related grounds (i.e., sabotage, espionage, sabotage), genocide, nazi persecution, or other foreign policy bars. The waiver can be used to overcome almost all other grounds of inadmissibility. The waiver is commonly used to waive bars for material misrepresentation, unlawful presence, and criminal convictions.
Along with a 212(d)3 waiver request, an applicant can also request a “consent to reapply” which is an authority found in the Foreign Affairs Manual. Technically speaking, this is a separate request that can overcome the separate inadmissibility bars that are triggered when someone requests returning to the US within a certain period of time after being removed or deported.

What is the standard used for the 212(d)3 waiver?

The INA 212(d)(3) waiver analysis is entirely discretionary and involves balancing the bad act that triggers the inadmissibility bar against humanitarian considerations. The standard for approving or denying the 212(d)3 waiver is articulated in a Board of Immigration Appeals case from 1978 called Matter of Hranka.
In deciding whether to approve or deny Hranka waiver, the government officer should analyze three factors:
  • The risk of harm to society if the applicant is granted the waiver and enters or remains in the US with a temporary visa;
  • 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.

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